                                                                   F I L E D
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                    May 22, 2007
                          FO R TH E TENTH CIRCUIT               Elisabeth A. Shumaker
                                                                    Clerk of Court


EU GEN E A . GAITER S,
as Trustee and Beneficiary,

           Plaintiff-Appellant,

       and

RICHARD H. M ORTON, as Trustee and
Beneficiary; M .G.H. TRUST,
an Irrevocable Trust,

           Plaintiffs,                                  No. 06-5168
                                                 (D.C. No. 03-CV -425-CV E)
  v.                                                    (N.D. Okla.)

CITY OF CATOOSA , a municipality of
Rogers County, Oklahoma, and named
representatives: CURTIS CONLEY, M ayor
of the City of Catoosa, individually and in
his official capacity; JUD Y SCU LLAW L,
in her official capacity as Clerk of the City;
GEORGE GREGORY, Code Enforcement
Officer for the City of Catoosa, individually
and in his official capacity,

           Defendants-Appellees,

       and

CATHY PINKERTON BAKER,
Rogers County Treasurer, in her official
capacity; A RK WR EC KIN G CO M PANY
OF O KLAHOM A, INC., an
Oklahoma corporation,

           Defendants.
                           OR D ER AND JUDGM ENT *


Before BR ISC OE, SE YM OU R, and A ND ER SO N, Circuit Judges.




      Eugene A. Gaiters appeals pro se from three post-judgment orders entered

by the district court in this case. W e have jurisdiction pursuant to 28 U.S.C.

§ 1291, and we affirm.

      A brief review of the procedural history of this case is necessary to

understand the limited scope of this appeal. Plaintiffs filed this action alleging

civil rights and other claims in connection with a dispute involving real property.

Plaintiffs and four of the defendants, City of Catoosa, Curtis Conley, George

Gregory and Judy Scullawl, executed a settlement agreement, after which a

stipulation of dismissal with prejudice was filed on September 23, 2004. Several

months later, when plaintiffs had allegedly failed to comply with the terms of the

settlement agreement, these defendants filed a motion to enforce it. Adopting a

magistrate judge’s report and recommendation, the district court ruled that it did


*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. 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.

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not have jurisdiction to entertain defendants’ motion. In doing so, it rejected their

assertion that federal courts retain jurisdiction to enforce settlement agreements

after an action has been dismissed with prejudice. In an order dated M arch 17,

2005, the court also denied as moot plaintiffs’ pending pro se motion to vacate

and set aside the settlement agreement. Plaintiffs did not appeal that ruling.

Almost a year later, on February 24, 2006, they filed an amended motion to

vacate and set aside the settlement agreement and stipulation of dismissal,

asserting that the settlement was procured by fraud. On M ay 30, the district court

again adopted a magistrate judge’s report and recommendation, finding that

plaintiffs’ motion was untimely under Fed. R. Civ. P. 60(b)(1), (2) or (3) and that

the court therefore did not have jurisdiction to rule on it.

      M r. Gaiters then proceeded on his own to continue to seek relief in the

district court. He first filed a letter asking the district court judge to recuse

herself based upon her alleged personal bias in favor of his former counsel, who

had withdrawn from his representation of plaintiffs before the district court ruled

on their motions to vacate the settlement. The district court construed the letter

as a motion and denied it on June 9, 2006. M r. Gaiters next filed a motion

asserting that the district court’s post-judgment orders adopting a magistrate

judge’s recommendations were void, because a magistrate judge may only be

assigned to hear pre-trial matters under Fed. R. Civ. P. 72(b) and 28 U.S.C.

§ 636(b)(1)(A). The district court denied that motion on June 21. And, finding

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that any further filings in this matter would be frivolous, the court imposed filing

restrictions on M r. Gaiters. He then filed an application with the clerk of the

court, as required by the filing restrictions, seeking permission to file a new

motion to vacate the separate stipulated dismissal of another defendant, Ark

W recking Company of Oklahoma, Inc. (“Ark W recking Co.”). The district court

held that the application did not comply with the requirements of the filing

restrictions and denied it on July 28.

      M r. Gaiters did not file a notice appealing any of these rulings. Instead, he

filed an application for a writ of mandamus in this court. W e denied the

application, but treated it as a misdirected notice of appeal. But many of the

numerous issues raised in M r. Gaiters’ opening brief on appeal are not properly

before this court. A timely notice of appeal is “a jurisdictional prerequisite to our

review.” Alva v. Teen Help, 469 F.3d 946, 948 (10th Cir. 2006). 1 W e therefore

limit our review to the three district court orders addressed in his application for a

writ of mandamus, as to which the notice of appeal was timely: specifically, the

orders dated June 9, June 21, and July 28, 2006. 2



1
       M r. Gaiters’ application for a writ of mandamus, filed on July 10, 2006, did
not effect a timely appeal of the district court’s M ay 30 order holding that the
court lacked jurisdiction to review plaintiffs’ amended motion to vacate.
2
       On August 10, 2006, M r. Gaiters filed an application to supplement the
record on his pending petition for writ of mandamus, in which he challenged the
district court’s July 28 order. W e treated this filing as another misdirected notice
of appeal.

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      Regarding the district court’s June 9 order, M r. Gaiters argues that the

district court judge abused her discretion in denying his motion to recuse. Under

28 U.S.C. § 455(a), a district judge “shall disqualify [herself] in any proceeding

in which [her] impartiality might reasonably be questioned.” Recusal is

“appropriate only where a reasonable person, were he to know all the

circumstances, would harbor doubts about the judge’s impartiality.” United

States v. M endoza, 468 F.3d 1256, 1262 (10th Cir. 2006) (quotation omitted).

This court reviews the denial of a motion to recuse for an abuse of discretion. Id.

The district court denied M r. Gaiters’ motion because he failed to provide any

facts to show that a reasonable person could question the district court judge’s

impartiality. The court also found that the m otion was untimely and M r. Gaiters

presented no reason for his delay. W e have reviewed the record and find no legal

error or abuse of discretion in the district court’s denial of the motion to recuse.

W e therefore affirm for substantially the same reasons set forth in the district

court’s June 9, 2006, order.

      M r. Gaiters challenges both the substance of the June 21, 2006, order and

the imposition of filing restrictions. In his motion M r. Gaiters asserted that the

district court’s post-judgment orders adopting the recommendations of a

magistrate judge were “ultra vires,” “void,” and a denial of due process, because a

magistrate judge has no authority to adjudicate post-trial matters. R., Doc. 74

at 2. W e construe M r. Gaiters’ motion as filed under Rule 60(b)(6), and therefore

                                          -5-
review the district court’s decision for an abuse of discretion. See Searles v.

Dechant, 393 F.3d 1126, 1130-31 (10th Cir. 2004). Although the district court

concluded that it lacked jurisdiction, and therefore did not exercise its discretion

to consider M r. Gaiters’ motion, we need not remand because w e can affirm

the district court’s denial of the motion as a matter of law. See Simons v.

S.W. Petro-Chem, Inc., 28 F.3d 1029, 1030 (10th Cir. 1994) (resolving issue

district court failed to consider, where record was sufficient to permit decision

as a matter of law). W e have previously held that a district court may refer

post-judgment matters to a magistrate judge under the “additional duties”

provision of 28 U.S.C. § 636(b)(3), so long as the district judge retains the

ultimate responsibility for decision making. See Colo. Bldg. & Constr. Trades

Council v. B.B. Andersen Constr. Co., 879 F.2d 809, 811 (10th Cir. 1989).

Here, based on our review of the record, M r. Gaiters’ assertion that the district

court failed to retain ultimate decision-making responsibility is unfounded.

      M r. Gaiters also asserts that the district court improperly imposed filing

restrictions in its June 21 order. The restrictions require him to satisfy five

criteria in an application to the court clerk, before he will be granted permission

to file any further pleadings in this case. Specifically, he must set forth the legal

and factual bases for his proposed pleading, a statement that the issue raised has

never been finally disposed of by any court, the identity and nature of assistance

by any third party, and a statement of compliance with Fed. R. Civ. P. 11.

                                          -6-
“Federal courts have the inherent power to regulate the activities of abusive

litigants by imposing carefully tailored restrictions under the appropriate

circumstances.” Sieverding v. Colo. Bar Ass’n, 469 F.3d 1340, 1343 (10th Cir.

2006) (quotation omitted). W e review a district court’s imposition of filing

restrictions for an abuse of discretion. Tripati v. Beaman, 878 F.2d 351, 354

(10th Cir. 1989) (per curiam).

      M r. Gaiters argues only that he has no previous history of filing frivolous

pleadings. Yet even after the district court ruled that it lacked jurisdiction

over plaintiffs’ amended motion to vacate, he persisted in filing additional

non-meritorious motions. W e have examined the filing restrictions and note that

they are not unreasonable, nor do they prevent the filing of meritorious pleadings.

Further, they pertain only to further pleadings in this case, which was dismissed

by the parties with prejudice in 2004. W e hold that the district court did not

abuse its discretion in imposing these narrow ly-tailored restrictions.

      Finally, M r. Gaiters argues that the district court should have granted him

permission to file a new motion to vacate the separate stipulated dismissal of Ark

W recking Co. The district court held that he failed to satisfy the filing

restrictions because he did not set forth the legal or factual bases for his proposed

motion, and he refused to fully disclose any legal assistance he had received.

W e find no error of law or abuse of discretion in the district court’s decision and




                                          -7-
therefore affirm for substantially the same reasons set forth in its order dated

July 28, 2006.

      The judgment of the district court is A FFIRM ED. M r. Gaiters’ motion to

add A rk W recking C o. as an appellee is DENIED.


                                                     Entered for the Court



                                                     Stephen H. Anderson
                                                     Circuit Judge




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