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Zhu v. St. Francis Health Center, 07-3254 (2008)

Court: Court of Appeals for the Tenth Circuit Number: 07-3254 Visitors: 9
Filed: May 21, 2008
Latest Update: Feb. 21, 2020
Summary: FILED United States Court of Appeals Tenth Circuit May 21, 2008 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court XIANGYUAN SUE ZHU, Plaintiff - Appellant, No. 07-3254 v. (D. Kansas) ST. FRANCIS HEALTH CENTER; (D.C. No. 05-CV-2139-KHV) KEENEN THOMPSON, M.D., Defendants - Appellees. ORDER AND JUDGMENT * Before MURPHY, HARTZ, and GORSUCH, Circuit Judges. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would n
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                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    May 21, 2008
                    UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                                 TENTH CIRCUIT                      Clerk of Court



 XIANGYUAN SUE ZHU,

               Plaintiff - Appellant,                    No. 07-3254
          v.                                              (D. Kansas)
 ST. FRANCIS HEALTH CENTER;                     (D.C. No. 05-CV-2139-KHV)
 KEENEN THOMPSON, M.D.,

               Defendants - Appellees.


                            ORDER AND JUDGMENT *


Before MURPHY, HARTZ, and GORSUCH, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Xiangyuan Zhu appeals from an order of the district court denying her

motion for recusal and imposing sanctions in the amount of $281.30. Zhu also



      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
seeks to revisit an issue previously resolved by this court: whether the district

court erred in dismissing, on the basis of res judicata, the claims set out in Zhu’s

federal-court complaint. Zhu v. St. Francis Health Ctr., 215 F. App’x 717, 720

(10th Cir. 2007). Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we

affirm.

      The procedural history of this case is set out in this court’s prior opinion

and need not be repeated here. Zhu, 215 F. App’x at 718. Suffice it to say that in

Zhu’s prior appeal, this court affirmed the dismissal of her federal-court

complaint and remanded the matter to the district court for a final determination

as to the amount of sanctions to be imposed upon Zhu. 
Id. at 720.
On remand,

Zhu moved to recuse the district court judge, Judge Vratil, and contested the

imposition and amount of sanctions. The district court denied Zhu’s motion to

recuse, noting that neither her involvement as a presiding judge in previous

litigation brought by Zhu, nor her adverse rulings against Zhu in this case, were

grounds for recusal.

      On appeal, Zhu attempts to relitigate the propriety of the district court’s

dismissal of the claims set out in her federal complaint. She also asserts the

district court erred in refusing to recuse and in awarding sanctions against her.

This court previously affirmed the district court’s dismissal of Zhu’s complaint.

Id. That decision
is the law of the case and binding on this court absent the

existence of extraordinary circumstances. McIlravy v. Kerr-McGee Coal Corp.,

                                          -2-

204 F.3d 1031
, 1035 (10th Cir. 2000). Because Zhu has failed to demonstrate she

fits within one of the three “exceptionally narrow” exceptions to the law-of-the-

case doctrine, she cannot reargue in this appeal issues previously disposed of by

this court in Zhu, 215 F. App’x at 720. 
McIlravy, 204 F.3d at 1035
. Zhu’s

contention Judge Vratil should have recused herself is frivolous. At heart, all of

Zhu’s contentions of bias flow from previous rulings by Judge Vratil. It is

absolutely clear, however, that adverse rulings by a district court judge are not

sufficient grounds for recusal. Green v. Branson, 
108 F.3d 1296
, 1305 (10th Cir.

1997). Finally, as to the propriety of the imposition and amount of sanctions, we

affirm for substantially those reasons set out in the magistrate judge’s report and

recommendation dated June 18, 2007, and the district court’s memorandum and

order dated July 19, 2007.

      The district court is hereby AFFIRMED. Zhu’s motion for leave to file

appendix and supplemental appendix is GRANTED. Her motion for a refund of

filing fees is DENIED.

                                               ENTERED FOR THE COURT


                                               Michael R. Murphy
                                               Circuit Judge




                                         -3-

Source:  CourtListener

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