                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________          FILED
                                                  U.S. COURT OF APPEALS
                               No. 09-14173         ELEVENTH CIRCUIT
                                                        JULY 9, 2010
                           Non-Argument Calendar
                                                         JOHN LEY
                         ________________________
                                                          CLERK

                    D. C. Docket No. 90-01036-CR-1-MMP

ROBERT REE SMITH,


                                                             Petitioner-Appellant,

                                     versus

UNITED STATES OF AMERICA,

                                                            Respondent-Appellee.


                         ________________________

                  Appeal from the United States District Court
                      for the Northern District of Florida
                        _________________________

                                  (July 9, 2010)

Before BLACK, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:

     Robert Ree Smith, proceeding pro se, appeals the district court’s denial of
his motion to reconsider or vacate an earlier order instructing the district court

clerk not to accept Smith’s future filings unless he alleged imminent physical

harm. After review, we vacate and remand for further proceedings.

                                          I.

      Smith was convicted in 1992 of conspiracy to distribute cocaine and

misusing Social Security numbers. His conviction was affirmed on appeal, as was

the denial of his 28 U.S.C. § 2255 habeas petition. United States v. Smith, 56 F.3d

1388 (11th Cir. 1995) (unpublished table decision); Smith v. United States, 248

F.3d 1177 (11th Cir. 2001) (unpublished table decision). He has since filed at least

five post-habeas motions collaterally attacking his sentence. On October 9, 2007,

the district court found that Smith’s most recent motion was frivolous or

duplicative of arguments already considered by the court. Based on Smith’s filing

history, the district court denied the motion and directed the clerk’s office not to

accept for filing any future motions by Smith unless the motion alleged imminent

physical harm. Smith moved for leave to appeal in forma pauperis and for a

certificate of appealability, which the district court denied on January 2, 2008.

      On June 4, 2009, after failing to obtain leave to appeal in forma pauperis and

a certificate of appealability from this Court, Smith filed a motion requesting that

the district court reconsider or vacate its January 2, 2008, order. He complained



                                           2
that he should have been given an “upfront clear warning” before being precluded

from filing motions. He also indicated that there was a new procedural rule and

new precedent offering him relief, although he did not identify the rule or case. On

July 17, 2009, the district court found that nothing in Smith’s motion justified

revisiting the prior order, denied the motion, and again directed the clerk’s office

not to accept for filing any motions by Smith unless the motion alleged imminent

physical harm. The July 17, 2009, order is the subject of Smith’s present appeal.

                                          II.

      Before reaching the merits of Smith’s arguments, it is necessary to address

two preliminary issues. First, the government urges us to dismiss this case on the

ground that Smith lacks standing. Specifically, the government contends that

Smith fails to demonstrate actual injury as required for an access-to-the-court

claim. Second, the government argues that Smith’s motion for reconsideration was

untimely because it was filed seventeen months after the entry of the January 2,

2008, order.

      We do not agree that this appeal should be dismissed for lack of standing.

The cases upon which the government relies arose in a different context. In Lewis

v. Casey, 518 U.S. 343, 116 S. Ct. 2174 (1996), and Barbour v. Haley, 471 F.3d

1222 (11th Cir. 2006), inmates claimed that prison officials had failed to provide



                                           3
them with the resources needed to prepare and file meaningful legal papers. The

Casey Court held that such plaintiffs were required to show actual injury in order

to bring an access-to-the-court claim. Casey, 518 U.S. at 348–50, 116 S. Ct. at

2178–79. As the Supreme Court explained, the actual injury requirement “derives

ultimately from the doctrine of standing, a constitutional principle that prevents

courts of law from undertaking tasks assigned to the political branches.” Id. at

349, 116 S. Ct. at 2179. Without such a requirement, potential plaintiffs could

invoke judicial intervention based merely on “the status of being subject to a

governmental institution that was not organized or managed properly.” Id. at 350,

116 S. Ct. at 2179. The Casey Court drew an analogy to a healthy inmate who has

not suffered any deprivation of needed medical treatment. This hypothetical

healthy inmate lacks standing to assert that prison authorities violated his

constitutional right to medical care, because otherwise the distinction between the

judicial and executive branches of government would disappear and it would

“become the function of the courts to assure adequate medical care in prisons.” Id.

Similarly, an inmate who has not actually been hindered in his pursuit of a

nonfrivolous legal claim lacks standing to assert that prison authorities failed to

provide him with the legal resources needed to litigate his claim. Id. at 350–53,

116 S. Ct. at 2179–81. This actual injury requirement ensures that judicial



                                           4
intervention in the political branches’ management of prisons is limited to

situations where inmates “have suffered, or will imminently suffer, actual harm.”

Id. at 349, 116 S. Ct. at 2179.

       However, the separation of powers concerns that motivated Casey are not

implicated in this case. Unlike the plaintiffs in Casey and Barbour, Smith is not

bringing a freestanding access-to-the-court claim in the hopes of obtaining judicial

review of actions undertaken by the political branches of government. Here, it was

the district court that closed the courthouse doors by sua sponte ordering the

clerk’s office not to accept motions from Smith. We do not believe that Casey and

Barbour require the imposition of an actual injury requirement in this particular

situation.

       We are guided instead by Procup v. Strickland, 792 F.2d 1069 (11th Cir.

1986) (en banc), a case in which the Eleventh Circuit considered a similar

prospective injunction entered by a district court to restrict future filings from an

overly litigious inmate. Sitting en banc, this Court held that the inmate had

standing to seek review of the injunction because he was “clearly affected” by the

injunction and “might possibly be reached by contempt if he sought to file

pleadings in violation thereof.” Id. at 1070 n.1. Smith is similarly affected by the

district court’s order in this case and may be subject to contempt if he files any



                                           5
motions in violation of the order. In light of Procup, Smith has standing to

challenge the injunction.

      Neither do we agree with the government’s contention that this appeal

should be dismissed due to Smith’s delay in filing his motion for reconsideration.

Although Smith did not specifically identify the legal basis for his motion, he

alleged that he was given no warning before the district court entered its injunction.

Numerous persuasive authorities support the idea that due process requires notice

and a hearing before a court sua sponte enjoins a party from filing further papers in

support of a frivolous claim. See MLE Realty Assocs. v. Handler, 192 F.3d 259,

261 (2d Cir. 1999) (“Even when such a sua sponte injunction is proper, however,

and even when the district court’s action is understandable in light of the

vexatiousness of the litigation, such an injunction may not issue without notice to

the party enjoined and an opportunity for that party to be heard.”); Brow v.

Farrelly, 994 F.2d 1027, 1038 (3d Cir. 1993) (“If the circumstances warrant the

imposition of an injunction, the District Court must give notice to the litigant to

show cause why the proposed injunctive relief should not issue. This ensures that

the litigant is provided with the opportunity to oppose the court’s order before it is

instituted.” (citations omitted)); De Long v. Hennessey, 912 F.2d 1144, 1147 (9th

Cir. 1990) (finding due process violation where plaintiff “was not provided with an



                                           6
opportunity to oppose the order before it was entered”); In re Powell, 851 F.2d

427, 431 (D.C. Cir. 1988) (“If a pro se litigant is to be deprived of such a vital

constitutional right as access to the courts, he should, at least, be provided with an

opportunity to oppose the entry of an order restricting him before it is entered.”);

see also United States v. Powerstein, 185 F. App’x 811, 813 (11th Cir. 2006)

(“[A]ppellant was entitled to notice and an opportunity to be heard before the court

imposed the injunctive order complained of.”).

      Smith’s filing can therefore be construed as a motion for relief under Federal

Rule of Civil Procedure 60(b)(4). A judgment is void under that rule “‘if the court

that rendered it . . . acted in a manner inconsistent with due process of law.’”

Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d 1210, 1215 n.13 (11th Cir. 2009)

(quoting Burke v. Smith, 252 F.3d 1260, 1263 (11th Cir. 2001)). We have

previously suggested that a Rule 60(b)(4) motion is not constrained by any time

limit. See Hertz Corp v. Alamo Rent-A-Car, Inc., 16 F.3d 1126, 1130 (11th Cir.

1994) (noting that the First, Fifth, Seventh, Tenth, and D.C. Circuits have

expressly held that a Rule 60(b)(4) motion is not subject to any time restriction,

and further noting that this circuit “has indicated acceptance of this position”).

Because Smith is arguably seeking relief under Rule 60(b)(4), the fact that he

waited seventeen months to challenge the injunction is immaterial for purposes of



                                           7
this appeal.

      Having disposed of the government’s two preliminary contentions, we

proceed to consider the merits of Smith’s arguments.

                                          III.

      The July 17, 2009, order from which Smith appeals did two things: (1) it

denied Smith’s motion for reconsideration, and (2) it repeated the district court’s

earlier instructions to the clerk’s office prohibiting the filing of any motions by

Smith unless the motion alleged imminent physical harm.

      “A district court’s denial of relief under Rule 60(b) is reviewable for abuse

of discretion.” Jackson v. Crosby, 437 F.3d 1290, 1295 (11th Cir. 2006).

Normally, in reviewing an order denying a Rule 60(b) motion or a motion

construed as a Rule 60(b) motion, our consideration is limited to determining

whether the district court abused its discretion in denying the motion, and we do

not consider the validity of the underlying judgment. See Rice v. Ford Motor Co.,

88 F.3d 914, 919 (11th Cir. 1996); Cavaliere v. Allstate Ins. Co., 996 F.2d 1111,

1115 (11th Cir. 1993).

      In this case, however, we are presented with an unusual situation. The

district court first enjoined any future filings from Smith on October 9, 2007, and

Smith’s motion for reconsideration does not bring up that underlying judgment for



                                           8
review. See Rice, 88 F.3d at 919. However, the district court’s July 17, 2009,

order repeated the injunctive language, and Smith’s notice of appeal clearly

indicates that he is appealing the instruction directing the clerk’s office not to

accept Smith’s filings. Under these circumstances, and in light of Smith’s pro se

status, we will review the appropriateness of the district court’s injunction.

        The propriety of an injunction is reviewed under the abuse of discretion

standard. See Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1096 (11th Cir.

2004). “A district court abuses its discretion if it applies an incorrect legal

standard, follows improper procedures in making the determination, or makes

findings of fact that are clearly erroneous.” Chicago Tribune Co. v.

Bridgestone/Firestone, Inc., 263 F.3d 1304, 1309 (11th Cir. 2001). Additionally,

“an abuse of discretion occurs if the district court imposes some harm,

disadvantage, or restriction upon someone that is unnecessarily broad or does not

result in any offsetting gain to anyone else or society at large.” Klay, 376 F.3d at

1096.

        The Supreme Court has recognized “that prisoners have a constitutional

right of access to the courts.” Bounds v. Smith, 430 U.S. 817, 821, 97 S. Ct. 1491,

1494 (1977). However, “that right is neither unconditional nor absolute.” Procup,

792 F.2d at 1077–78. The right of access may be counterbalanced by the



                                            9
traditional right of courts to manage their dockets and limit abusive filings. See In

re McDonald, 489 U.S. 180, 184, 109 S. Ct. 993, 996 (1989) (per curiam). Thus,

we have upheld an injunction prohibiting a frequent litigant from filing any new

actions against his former employer without first obtaining leave of the court,

Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1295 (11th Cir. 2002); an injunction

directing the clerk to mark any papers submitted by a frequent litigant as received

but not to file the documents unless a judge approved them for filing, Copeland v.

Green, 949 F.2d 390, 391 (11th Cir. 1991); and an injunction ordering a frequent

litigant to send all pleadings to a judge for prefiling approval, Cofield v. Ala. Pub.

Serv. Comm’n, 936 F.2d 512, 518 (11th Cir. 1991).

      We have, however, vacated injunctions that swept too broadly and thus

denied litigants their constitutional right to access the courts. For example, in

Miller v. Donald, 541 F.3d 1091 (11th Cir. 2008), we found that an injunction was

overbroad because it went “beyond what is sufficient to protect the district court’s

jurisdiction from Miller’s repetitive filings related to the conditions of his

confinement.” Id. at 1098. Our concern was that the injunction encompassed all

business that Miller might subsequently have with the court, and was not limited to

the areas in which Miller had demonstrated a history of abusive litigation. See id.

(discussing United States v. Flint, 178 F. App’x 964, 970 (11th Cir. 2006)); cf.



                                           10
Traylor v. City of Atlanta, 805 F.2d 1420, 1422 (11th Cir. 1986) (upholding

injunction where it was clear that the district court intended only to prohibit party

from “attempting to relitigate specific claims arising from the same set of factual

circumstances that [had] been litigated and adjudicated in the past”).

      The injunction in this case is similarly overbroad. It bars Smith from filing

any motion except one alleging imminent physical harm, even if he seeks to raise

issues unrelated to his conviction and sentence. Because the injunction reaches

“beyond the area in which [Smith] ha[s] demonstrated a history of abusive

litigation,” it “fails to uphold [his] right of access to the courts.” Miller, 541 F.3d

at 1098. The district court abused its discretion by imposing an “unnecessarily

broad” restriction on Smith’s filings. Klay, 376 F.3d at 1096.

      “Federal courts have both the inherent power and the constitutional

obligation to protect their jurisdiction from conduct which impairs their

ability to carry out Article III functions,” which means that they have “a

responsibility to prevent single litigants from unnecessarily encroaching on the

judicial machinery needed by others.” Procup, 792 F.2d at 1073–74. Although

“[c]onsiderable discretion necessarily is reposed in the district court” to design

appropriate injunctions, id. at 1074, the mechanism devised by the district court in

this case sweeps too broadly. We therefore vacate and remand so that the district



                                           11
court may consider imposing a lesser restriction that will protect against abusive

filings without improperly restricting Smith’s right of access to the courts. If the

district court decides that an injunction is necessary, Smith should be provided

with an opportunity to oppose the injunction before it is instituted. See Brow, 994

F.2d at 1038.

       We do not reach the other arguments raised in Smith’s appellate briefs,

regarding the district court’s purported failure to address each of the issues raised

in Smith’s § 2255 motion and his claim that the ending date of the conspiracy was

not decided by the jury. Smith’s motion for reconsideration, the denial of which

prompted this appeal, made no mention of these arguments. The motion for

reconsideration focused entirely on whether the district court erred in failing to

warn Smith before precluding him from filing further motions. Therefore, the

other arguments discussed in Smith’s appellate briefs are not properly before us.

“It is well established in this circuit that, absent extraordinary circumstances, legal

theories and arguments not raised squarely before the district court cannot be

broached for the first time on appeal.” Bryant v. Jones, 575 F.3d 1281, 1308 (11th

Cir. 2009).1


       1
          A review of the record indicates that Smith did raise these arguments in the motion that
he filed on May 21, 2007, as supplemented on June 25, 2007. The district court’s denial of the
motion was the subject of an earlier appeal by Smith. On that appeal, we determined that
Smith’s motion was properly characterized as an unauthorized, successive § 2255 motion, and

                                                12
                                               IV.

       The district court’s restriction on Smith’s ability to file any further motions

absent an allegation of imminent physical injury is overbroad and improperly

restricts his access to the courts. We vacate the order entered by the district court

on July 17, 2009, and remand with instructions to consider imposing a lesser

restriction in a manner consistent with due process of law.

       VACATED AND REMANDED.




we affirmed the district court’s denial of the motion. We decline to revisit that conclusion here.

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