                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                    February 23, 2007
                            FO R TH E TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                       Clerk of Court

    DW AY NE G AR RETT,

                Plaintiff-Appellant,

    v.                                                  No. 06-7029
                                                (D .C. Nos. CV-05-472-W H,
    STEPHA NIE K. SEYM OU R; JAM ES                    CV-06-42-W H)
    H. PAY NE; W ILLIAM B. GU THR IE;                   (E.D. Okla.)
    C AROLY N ZU N D A ; FR AN K H.
    SEA Y ; JOH N C. PO RFILIO ;
    STEPH EN H . A N D ER SO N ;
    DEANELL R. TACHA; BOBBY R.
    B ALD O CK ; WA D E B RO RB Y;
    D A V ID M . EB EL; PA U L J. K ELLY,
    JR.; ROBERT H. HENRY; M ARY
    BECK BR ISCO E; CA RLOS F.
    LU CERO; M IC HA EL R . M U RPHY;
    HARRIS L. HARTZ; M ICHAEL W .
    M C CO N NELL; M O N RO E G .
    M CKAY; ARDELL SCHULER;
    OPAL A . CA RTER; SUSAN S.
    BRANDON; SHELDON J.
    SPER LIN G ,

                Defendants-Appellees.



                             OR D ER AND JUDGM ENT *



*
       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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
Before O ’B RIE N and BARRETT, Circuit Judges, and BRO W N, ** District Judge.




      Plaintiff-appellant Dwayne Garrett, proceeding pro se, appeals from the

district court’s sua sponte dismissal of his complaints. W e have jurisdiction

under 28 U.S.C. § 1291 and affirm. M r. Garrett has engaged in frivolous and

abusive litigation; filing restrictions are necessary to arrest that practice.

      In the first of two actions that form the basis of this appeal, M r. Garrett

alleged that the defendants, who are federal judges, federal-court clerks and staff,

and a United States attorney and staff, deprived him of in excess of $1,500,000 by

either blocking law ful process or submitting a false document. M r. Garrett did

not allege any facts describing the manner in which defendants acted but asserted

that their conduct violated a variety of federal criminal statutes, including

racketeering, conspiracy, and mail fraud. In a second action filed two months

after the first, he alleged that three of the defendants, acting in conspiracy with

the rest of the defendants, blocked the district court clerk’s entry of default and

default judgment, which also deprived him of in excess of $1,500,000 and was in

violation of federal criminal statutes prohibiting conspiracy and influencing court

officers. In both actions he sought a jury trial, treble damages, and an order




**
       The H onorable W esley E. Brown, Senior District Judge, District of K ansas,
sitting by designation.

                                          -2-
compelling defendants to terminate their association with the federal court

system.

      The district court consolidated the actions and dismissed the complaints

sua sponte for failure to state a claim under Fed. R. Civ. P. 12(b)(6), concluding

that the complaints were conclusory, that M r. Garrett could not prevail on the

facts alleged, and that allowing him an opportunity to amend his complaint would

be futile. The court also noted that M r. G arrett had cast aspersions at defendants.

For example, he referred to various defendants as “thugs,” R., Doc. 1 at 2,

“dumb,” id. at 8, “pathetic,” id., and part of a judicial system that is “absolutely

shamelessly corrupt and in fact down right [sic] evil,” id. at 9. The district court

denied M r. Garrett’s motion to vacate the judgment and imposed filing

restrictions on him because of his lengthy history of abusive pro se federal

litigation in the United States District Court for both the Eastern District and the

Northern District of Oklahoma and because of his apparent intent to harass the

defendants in these actions. This appeal followed.

      W e review de novo the district court’s dismissal for failure to state a claim

under R ule 12(b)(6). Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d

1226, 1236 (10th Cir. 1999). W e construe M r. Garrett’s pleadings and other

papers liberally. Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991).

      M r. Garrett’s argument that the district court lacked the pow er to dismiss

his complaint sua sponte is meritless. See id. at 1110 (explaining that sua sponte

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dismissal under Rule 12(b)(6) is appropriate “when it is patently obvious that the

plaintiff could not prevail on the facts alleged, and allowing him an opportunity

to amend his complaint would be futile” (quotation omitted)). Mr. Garrett’s

allegations are wholly conclusory, and he has not shown that amendment would

not be futile.

       Equally meritless is his assertion that the district court clerk was obligated

to enter default judgment against defendants in the first action pursuant to

Fed. R. Civ. P. 55(b)(1) because he requested a sum certain. First, it is unclear

from the record if defendants were in default at the time the district court

sua sponte dismissed the case. Second, even if they were in default, the clerk had

not entered default under Rule 55(a), a prerequisite for the entry of a default

judgment under Rule 55(b)(1). Third, even if the clerk should have entered

default, the clerk had no power to enter a default judgment under Rule 55(b)(1)

because M r. Garrett’s claims against the defendants were not merely for a sum

certain but included equitable relief. See Fed. R. Civ. P. 55(b)(1), (2) (permitting

clerk to enter default judgment only when plaintiff’s claim is for a sum certain).

W hether to enter a default judgment therefore w as a matter for the district court

under Rule 55(b)(2), and it was within the district court’s discretion to deny

M r. Garrett’s request for a default judgment because his complaints w ere legally

insufficient to state a claim. See Granbouche v. Clancy, 825 F.2d 1463, 1468




                                          -4-
(10th Cir. 1987) (district courts have “broad discretion in deciding a default

judgment question”).

      The remainder of M r. Garrett’s arguments are irrelevant or meritless, and

he has not challenged the district court’s imposition of filing restrictions.

M r. Garrett’s motions to strike appellees’ brief and to disqualify appellees’

counsel are wholly without merit and are denied. His motion to disqualify the

defendant-judges of this circuit is denied as moot because none of those judges

are on the panel in this case. His motion to disqualify most of the other United

States Circuit Judges is frivolous and therefore denied.

      W e conclude that this appeal is frivolous, abusive, and malicious. Federal

courts have the inherent power under 28 U.S.C. § 1651(a) to regulate the

activities of abusive litigants by imposing carefully tailored restrictions under

appropriate circumstances. Tripati v. Beaman, 878 F.2d 351, 352 (10th Cir. 1989)

(per curiam). Injunctions restricting further filing are appropriate where (1) the

litigant’s lengthy and abusive history is set forth; (2) the court provides

guidelines as to what the litigant may do to obtain its permission to file an action;

and (3) the litigant receives notice and an opportunity to oppose the court’s order

before it is implemented. See id. at 353-54.

      Since 2002, Garrett has filed five other unsuccessful appeals w ith this

court. See G arrett v. Albert, 111 F. App’x 997 (10th Cir. 2004) (affirmed on

ground of judicial immunity); Garrett v. Esser, 81 F. App’x 720 (10th Cir. 2003)

                                          -5-
(per curiam) (no merit to appeal); Garrett v. Schuler, 81 F. App’x 720 (10th Cir.

2003) (per curiam) (no merit to appeal); Garrett v. Okla. Corp. Comm’n,

56 F. App’x 442 (10th Cir. 2003) (per curiam) (affirmed on ground that Garrett

had not objected to magistrate judge’s recommendation); Garrett v. Esser,

53 F. App’x 530 (10th Cir. 2002) (affirmed on ground that Garrett had violated

filing restrictions imposed by Northern District of Oklahoma). Thus we have

repeatedly found his appeals to be without merit and have summarily dismissed

two of them with no discussion. His filings in this frivolous appeal are replete

with ad hominem attacks on the defendants, the district court judge, and

defendants’ counsel, and far exceed the bounds of propriety even considering his

pro se status. Of particular note are the vile and insulting references to the

district court judge contained in M r. Garrett’s notice of appeal, where he states

that the judge is “stupid,” “a Constitutional rapist,” “a ‘poster child’ for judicial

reform,” and “childish,” and that the judge “presumed jurisdiction to fix the case

for [his] business associates.” Aplee. App. at A66.

      In 2000, the United States District Court for the Northern District of

Oklahoma imposed filing restrictions on M r. Garrett for his pattern of frequent

and abusive litigation, and he has failed to comply with those restrictions on at

least one occasion. See Garrett v. Esser, 53 F. App’x at 531 (describing

M r. Garrett’s violation of those restrictions). As noted above, the United States

District Court for the Eastern District of Oklahoma has imposed filing restrictions

                                          -6-
in this case based on his history of filing frivolous, malicious, and abusive

complaints. W e now do the same.

      “The right of access to the courts is neither absolute nor unconditional, and

there is no constitutional right of access to the courts to prosecute an action that is

frivolous or malicious.” Winslow v. Hunter (In re Winslow), 17 F.3d 314, 315

(10th Cir. 1994) (per curiam) (quotation and alteration omitted). “[W]here, as

here, a party has engaged in a pattern of litigation activity which is manifestly

abusive, restrictions are appropriate.” Id. (quotation omitted). Therefore, subject

to M r. Garrett’s opportunity to object, as described below, we impose the

following reasonable filing restrictions on future filings in this court by

M r. Garrett “commensurate with our inherent power to enter orders ‘necessary or

appropriate’ in aid of our jurisdiction.” Id. (quoting 28 U.S.C. § 1651(a)).

      M r. Garrett is ENJOINED from further filings in this case (except any

objections to these filing restrictions) or from proceeding as a petitioner in an

original proceeding or as an appellant in this court unless he is represented by a

licensed attorney admitted to practice in this court or unless he first obtains

permission to proceed pro se. To obtain permission to proceed pro se, M r. Garrett

must take the follow ing steps:

      1. File a petition with the clerk of this court requesting leave to file an

original proceeding or to proceed pro se on appeal. If M r. Garrett seeks to




                                          -7-
proceed pro se on appeal, he must file the petition with the clerk of this court not

more than ten days after filing his notice of appeal in the district court;

      2. Include in the petition the following information:

             A. A list of all lawsuits currently pending or filed previously with

this court, including the name, number, and citation, if applicable, of each case,

and the current status or disposition of the appeal or original proceeding; and

             B. A list apprising this court of all outstanding injunctions or orders

limiting M r. Garrett’s access to federal court, including orders and injunctions

requiring him to seek leave to file matters pro se or requiring him to be

represented by an attorney, including the name, number, and citation, if

applicable, of all such orders or injunctions; and

      3. File with the clerk of this court a notarized affidavit, in proper legal

form, which recites the issues M r. Garrett seeks to present, including a short

discussion of the legal basis asserted therefor, and describing with particularity

the order being challenged. The affidavit also must certify, to the best of

M r. Garrett’s knowledge, that the legal arguments being raised 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 matter is not interposed for any improper purpose such as delay or

to needlessly increase the cost of litigation, and that he will comply with all

appellate and local rules of this court. The affidavit must be filed with the

                                          -8-
petition and is therefore subject to the same ten-day filing deadline as the petition

in the case of a pro se appeal.

      These documents shall be submitted to the clerk of this court. The matter

will be dismissed for failure to prosecute if the required documents are not

submitted, are submitted in an improper form, or are untimely submitted. If the

matter is not dismissed for failure to prosecute, the clerk shall forward the

documents to the Chief Judge or her designee for review to determine whether to

permit M r. Garrett to file an original proceeding or to pursue an appeal. W ithout

the approval of the C hief Judge or her designee, the matter w ill be dismissed. If

the Chief Judge or her designee approves the petition, an order shall 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 effective immediately, but temporarily. They

shall remain in effect for forty days. M r. Garrett shall have fifteen days from the

date of this order to file written objections to the imposition of permanent filing

restrictions. The response is limited to fifteen pages. If M r. Garrett does not

timely file objections, the temporary filing restrictions shall become permanent.

If M r. Garrett timely files objections, the temporary filing restrictions shall expire

after forty days unless this court extends them. After considering timely filed

objections this court will decide whether to vacate, modify, or make permanent

the temporary filing restrictions.

                                          -9-
      The judgment of the district court is AFFIRM ED. M r. Garrett’s pending

motions are denied. M r. Garrett is ENJOINED from further filings in accordance

with the restrictions set out in this order and judgment, subject to his opportunity

to file objections as stated herein.


                                                     Entered for the Court



                                                     Terrence L. O’Brien
                                                     Circuit Judge




                                         -10-
