                                                                               FILED
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                         UNITED STATES COURT OF APPEALS                  February 3, 2017
                                                                       Elisabeth A. Shumaker
                                      TENTH CIRCUIT
                                                                           Clerk of Court


 DENNIS LEON SMITH; BRUCE
 CLYDE SMITH,

           Plaintiffs - Appellants,

 v.                                                          No. 16-1414
                                                    (D.C. No. 1:07-CV-1446-ZLW)
 UNITED STATES OF AMERICA;                                    (D. Colo.)
 STATE OF COLORADO; STATE OF
 OKLAHOMA; STATE OF KANSAS;
 STATE OF NEW MEXICO; STATE OF
 TEXAS; and John and Jane Does 1-50,

           Defendants - Appellees.



                                 ORDER AND JUDGMENT*


Before BRISCOE and McHUGH, Circuit Judges.**




       *
        This order and judgment is not binding precedent, except under the doctrines of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.
       **
         The Honorable Neil Gorsuch considered this appeal originally but did not
participate in this Order and Judgment. The practice of this court permits the remaining
two panel judges, if in agreement, to act as a quorum in resolving the appeal. See 28
U.S.C. § 46(d); see also United States v. Wiles, 106 F.3d 1516, 1516 n* (10th Cir. 1997)
(noting this court allows remaining panel judges to act as a quorum to resolve an appeal);
Murray v. National Broadcasting Co., 35 F.3d 45, 48 (2nd Cir. 1994), cert. denied, 513
U.S. 1082 (1995) (remaining two judges of original three judge panel may decide petition
for rehearing without third judge).
       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,

submitted without oral argument.

       Dennis Leon Smith and Bruce Clyde Smith, a father and son proceeding pro se,

appeal a minute order of the district court for the District of Colorado striking three

filings. This appeal is the third in a lawsuit begun in July, 2007, when the Smiths filed a

letter and two documents titled “Private Case to Appropriate Suitor’s Superior Claim”

and “Suitor’s One [S]upreme Court Rules.” The district court dismissed the case for

uncured filing deficiencies. Over the next nine years, the Smiths twice appealed and filed

additional, incomprehensible documents. In August and September, 2016, they filed

three more documents — a “Procedurally Modified Declaratory Judgment & Mandatory

Injunction,” a “Writ of Mandamus,” and a “Writ of Prohibition” — which the district

court struck in a minute order on September 14, 2016. The Smiths timely appealed.

       Because the contested minute order is not a final appealable order, we lack

jurisdiction pursuant to 28 U.S.C. § 1291. See Catlin v. United States, 324 U.S. 229, 233

(1945) (a final decision is “one which ends the litigation on the merits and leaves nothing

for the court to do but execute the judgment.”). The district court did enter a final

appealable order on August 22, 2007, dismissing the case. The Smiths never timely

appealed this order. By now, the time for appeal has long since expired. None of the

other avenues to jurisdiction applies. We therefore DISMISS this appeal for lack of

                                              2
jurisdiction. We DENY Appellants’ Motions for Leave to Proceed in Forma Pauperis.


                                             Entered for the Court


                                             Mary Beck Briscoe
                                             Circuit Judge




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