UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

ANDREW J. JOHNSON,

Plaintiff-Appellant,

v.

DAVID L. SERELSON, Assistant Public Defender; JON FORWOOD, Deputy District Attorney,

Defendants-Appellees.

No. 01-8022

(D.C. No. 99-CV-90-J)

(D. Wyo.)

ORDER AND JUDGMENT*

Before HENRY, ANDERSON, and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist 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.

Andrew J. Johnson, a state prisoner appearing pro se, appeals the district court's denial of his motion to alter or amend the district court's judgment dismissing his civil rights action filed pursuant to 42 U.S.C. § 1983. We affirm.

I.

Johnson was convicted in Wyoming of aggravated burglary and first degree sexual assault in September 1989. The jury found him to be a habitual criminal and he was sentenced to life imprisonment. The Wyoming Supreme Court affirmed his conviction and sentence. Johnson v. State, 806 P.2d 1282 (Wyo. 1991). He has filed four 28 U.S.C. § 2254 habeas petitions challenging his conviction, all of which have been denied or dismissed. See n.2, below. He filed the present § 1983 action in May 1999, claiming that David Serelson, the assistant public defender who represented him at trial, and Jon Forwood, the deputy district attorney who prosecuted him, violated his Eighth Amendment right to be free from cruel and unusual punishment by conspiring to convict him without a criminal information.

The district court dismissed the complaint, ruling that Johnson's claims expired six years previously under the applicable statute of limitations and that the complaint further failed to state a claim for relief under Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (to recover damages for unconstitutional imprisonment, prisoner must show that conviction or sentence has been invalidated). Johnson then filed a timely motion to alter or amend the judgment pursuant to Fed. R. Civ. P. 59(e), which tolled the time for appeal. See Van Skiver v. United States, 952 F.2d 1241, 1243 (1991). On December 6, 2000, the district court denied the Rule 59(e) motion and entered a separate judgment dismissing the complaint, as required by Fed. R. Civ. P. 58.

Rather than file an appeal, however, Johnson filed a second motion to alter or amend the judgment on December 11, 2000. Because this motion was "successive," it did not toll the time for appeal. Venable v. Haislip, 721 F.2d 297, 299 (10th Cir. 1983). The thirty-day deadline to file an appeal from the December 6, 2000 judgment expired on January 5, 2001. The district court entered an order denying Johnson's second Rule 59(e) motion on February 16, 2001. On March 16, 2001, Johnson filed his notice of appeal, stating he was appealing the February 16, 2001 order denying his motion to alter or amend the judgment.

Because Johnson's second motion to alter or amend the judgment was not served within ten days of the district court's judgment, it must be construed as a motion for relief from judgment under Fed. R. Civ. P. 60(b). See Van Skiver, 952 F.2d at 1243. Johnson's appeal from the denial of his Rule 60(b) motion raises for review only the district court's denial of that motion, and we do not consider the underlying judgment itself. Id.

We review the district court's denial of Johnson's Rule 60(b) motion for abuse of discretion. White v. Am. Airlines, Inc., 915 F.2d 1414, 1425 (10th Cir. 1990). Johnson contends on appeal that his Fifth Amendment right to equal protection of the law was violated because the district court lacked jurisdiction to enter a final disposition of the action. He claims that the defendants failed to file an answer to his complaint because (1) the answer they filed listed the district court docket number as 99-CV-90-J, when the actual docket number was 99-CV-
90-D and (2) defendants violated a local rule by not filing their motion to dismiss at the same time they filed their answer. Johnson raised these same claims before the district court, seeking default judgments against defendants. As the district court correctly ruled, the insignificant, unintentional typographical error in the docket number did not prejudice Johnson in any way, warrant a default judgment, or invalidate the answer filed by defendants. As the district court also correctly ruled, the local rules did not obligate defendants to file their motion to dismiss on the same date as their answer, so long as both pleadings were timely filed, which they were. We find Johnson's claim that his Fifth Amendment equal protection rights were violated to be wholly without merit, and we consider the outcome of this appeal to have been so obvious as to render it frivolous.

II.

Johnson has a history of frivolous and repetitive filings. In the course of this litigation, he filed at least three motions seeking a default judgment based on indisputably meritless arguments,1 eleven motions demanding a decision on a motion, usually filed only days after filing the motion in question, and five motions seeking to alter or amend district court orders. Johnson's complaint in this case failed to state a claim upon which relief could be granted and, as noted above, his appeal in this case is frivolous. We find that Johnson's filings in this case are repetitive, frivolous, and malicious.

Aside from this case, Johnson has filed ten cases in federal district court since his conviction, all of which were dismissed or denied.2 These include numerous civil rights actions against the sentencing judge, prosecutor, public defender and other officials involved in his arrest, trial and conviction. His filings further include four 28 U.S.C. § 2254 habeas petitions challenging his 1989 conviction. Johnson has been warned by this court and sanctioned by the district court for filing successive habeas petitions.3 Indeed, an argument can be made that Johnson's complaint in this action, though nominally brought pursuant to 42 U.S.C. § 1983, is essentially yet another attempt to collaterally challenge his conviction, notwithstanding the restrictions on filing successive habeas petitions set forth in 28 U.S.C. § 2244(b) and this court's warning on the subject. Finally, with this appeal, Johnson has now filed twenty-one pro se appeals and original proceedings in this court.

Johnson did not proceed in forma pauperis in this action, and it does not appear that any court has tallied his "strikes" to determine his filing status under 28 U.S.C. § 1915(g) of the Prison Litigation Reform Act (PLRA). Under the PLRA, a prisoner who accumulates three "strikes" for filing civil actions or appeals of civil actions that are dismissed for failure to state a claim or are malicious or frivolous is barred (with certain exceptions) from filing future suits in forma pauperis. Id. While incarcerated, Johnson has had three or more prior civil actions dismissed as frivolous, malicious, or for failure to state a claim upon which relief can be granted.4 Therefore, Johnson's past civil filings now subject him to this "three strike" provision of § 1915(g), and unless he is in "'imminent danger of serious physical injury,'" he may not proceed in forma pauperis in civil actions in federal court. See White v. Colorado, 157 F.3d 1226, 1232 (10th Cir. 1998) (quoting § 1915(g)).

Furthermore, it is clear that Johnson's filings in this court and the district court amount to a pattern of malicious, abusive and frivolous litigation. Johnson "has no absolute, unconditional right of access to the courts and no constitutional right of access to prosecute frivolous or malicious actions." DePineda v. Hemphill, 34 F.3d 946, 948 (10th Cir. 1994). This court has imposed or upheld sanctions in cases involving a similar number of abusive filings. See, e.g., id. at 947 (eleven pro se appeals); Werner v. Utah, 32 F.3d 1446, 1447-48 (10th Cir. 1994) (over fifty filings in district court and twenty-two appeals); In re Winslow, 17 F.3d 314, 315 (10th Cir. 1994) (seventeen appeals); Ketchum v. Cruz, 961 F.2d 916, 918 (10th Cir. 1992) (fifteen lawsuits). We therefore impose additional restrictions on Johnson's filings in this court, whether or not he pays a full filing fee, using our inherent power to regulate federal dockets, promote judicial efficiency, and deter frivolous filings. See Werner, 32 F.3d at 1448-49. Johnson is enjoined from proceeding as an appellant or a petitioner without the representation of a licensed attorney admitted to practice in this court, unless he first obtains permission to proceed pro se. To do so, he must take the following steps:

1. File a petition with the clerk of this court requesting leave to file a pro se proceeding;

2. Include in the petition the following information:

a. A list, by case name, number, and citation where applicable, of all proceedings currently pending or filed previously in this court by Johnson, with a statement indicating the current status of disposition of each proceeding;

b. A list apprising this court of all outstanding injunctions, contempt orders, or other judicial directions limiting his access to state or federal court, including orders and injunctions requiring him to be represented by an attorney; said list to include the name, number and citation, if applicable, of all such orders and injunctions;

3. File with the clerk a notarized affidavit, in proper legal form, which recites the issues he seeks to present, including a particularized description of the order or ruling being challenged and a short statement of the legal basis asserted for the challenge. The affidavit must also certify, to the best of his knowledge, that the legal arguments advanced are not frivolous or made in bad faith; that they are warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; that the appeal or other proceeding is not interposed for any improper purpose; and that he will comply with all federal appellate rules and local rules of this court.

These documents shall be submitted to the clerk of this court, who shall forward them to the chief judge of this court for review to determine whether to permit the pro se appeal or other proceeding. Without the chief judge's approval, the matter will be dismissed. If the chief judge approves the submission, an order will be entered indicating that the matter shall proceed in accordance with the Federal Rules of Appellate Procedure and the Tenth Circuit Rules.

These filing restrictions are in addition to § 1915(g) restrictions. Johnson shall have ten days from the date of this opinion to file written objections, limited to fifteen pages, to these proposed restrictions. Unless this court orders otherwise upon review of any objections, the restrictions shall take effect thirty days from the date of this opinion and shall apply to any matter filed by Johnson with this court after that time.

The judgment of the district court is AFFIRMED.

Entered for the Court

Mary Beck Briscoe

Circuit Judge