Cook v. Baca ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 26, 2015
Elisabeth A. Shumaker
Clerk of Court
DANIEL W. COOK, individually,
Plaintiff - Appellant,
v. No. 14-2075
(D.C. Nos. 1:10-CV-01173-JAP-
THE HONORABLE THEODORE C. KBM & 1:13-CV-00669-JAP-KBM)
BACA, individually and in his (D. N.M.)
official capacity; WELLS FARGO
BANK, N.A.; WELLS FARGO &
COMPANY; JAY D. HERTZ, ESQ.
and MICHELLE K. OSTRYE, ESQ.,
both individually and as counsel for
Wells Fargo Bank, N.A. and Wells
Fargo & Company, N.A.; PENNY T.
KNIPPS, individually and in her
capacity as a V.P. of Wells Fargo
Bank, N.A.; SUTIN, THAYER
BROWNE P.C.; SCOTT AND
PAMELA JANE GARRETT TRUST
dated June 14, 1999; SCOTT
GARRETT, individually, as an
officer of Bid Group, Inc., and as
trustee of the Trust; PAMELA JANE
GARRETT, individually and as
trustee of the Trust; BID GROUP,
INC.; GARRETT CAPITAL, LLC;
JULIE VARGAS, ESQ. and
CATHERINE DAVIS, ESQ., both
counsel for Scott Garrett, the Garrett
Trust, Garrett Capital, LLC, and Bid
Group, Inc.; HUNT & DAVIS, P.C.;
JOHN DOE and/or JANE DOE,
Defendants - Appellees.
Consolidated with
DANIEL W. COOK,
Plaintiff - Appellant,
v.
WELLS FARGO BANK, N.A.,
SCOTT AND PAMELA JANE
GARRETT TRUST, BID GROUP,
INC., SCOTT GARRETT and
PAMELA JANE GARRETT,
individually and as trustees of the
Trust, and SCOTT GARRETT, as an
officer of BID GROUP, INC.,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before BACHARACH, PORFILIO, and BALDOCK, Circuit Judges.
Mr. Daniel W. Cook appeals orders issued in two consolidated cases.
In Case No. 10-CV-01173-JAP-KBM, he seeks review of the district
judge’s orders consolidating cases and imposing filing restrictions, the
*
The parties do not request oral argument, and the Court has
determined that oral argument would not materially aid our consideration
of the appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Thus, we
have decided the appeal based on the briefs.
Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
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magistrate judge’s refusal to allow the filing of certain motions, and other
interlocutory orders related to the filing restrictions. In Case No.
13-CV-00669-JAP-KBM, Mr. Cook appeals from the district judge’s order
dismissing the complaint.
We dismiss the appeal in part based on a lack of appellate
jurisdiction, modify the order of filing restrictions, and affirm the
remainder of the challenged orders.
1. Mr. Cook’s Statement to the District Court and the Eventual
Filing Restrictions
This appeal grew out of an action in district court: No. 10-CV-1173.
In that action, Mr. Cook sued a state district judge, the Hon. Theodore
Baca. Judge Baca moved to enjoin further pleadings from Mr. Cook,
claiming Mr. Cook was reasserting “disturbing, unfounded, conclusory,
inflammatory allegations.” R. at 1424.
In opposing Judge Baca’s request, Mr. Cook stated:
As the Tenth Circuit has held, ultimately the question regarding
a need for any kind of filing restrictions is whether a litigant is
likely to continue to abuse the judicial process and harass other
parties. . . . Cook affirmatively states to this Court there is
absolutely no likelihood he would file any other actions in any
federal district court against the parties named in his one and
only complaint filed by Cook in the federal courts, not unless
the Tenth Circuit found the dismissal of his complaint by this
Court was err. [sic]
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Id. at 1785 (emphasis added). Noting Mr. Cook’s statement, the district
judge declined in 2012 to impose filing restrictions, but dismissed the
complaint. Id. at 1796.
Mr. Cook appealed the dismissal. Though we affirmed the dismissal,
we remanded in part for the district court to modify the dismissal by
making it without prejudice for the claims on which Mr. Cook lacked
standing. Cook v. Baca, 512 F. App’x 821, 824 (10th Cir. 2013)
(unpublished op.).
After we remanded for this narrow purpose, Mr. Cook filed an
application in No. 10-CV-1173, entitled “Request for Hearing to Determine
Scope of Tenth Circuit Remand and Notice of Cook’s Ownership of Estate
Interests in State Law Causes, Counts VII & VIII, Arising in a Title 11,
§ 1334 Jurisdiction.” R. at 1863. The district court denied the request for a
hearing concerning the scope of the remand, declined to exercise
supplemental jurisdiction over the state-law causes of action, and modified
the relevant portion of the prior dismissal to be without prejudice (as our
court had instructed). Mr. Cook then filed a new action in the District of
New Mexico (No. 13-CV-669) against Wells Fargo & Company and others.
Months later, Wells Fargo filed a motion in No. 10-CV-1173, asking
the district court to (1) impose filing restrictions against Mr. Cook and (2)
find Mr. Cook in contempt of court for breaking his promise that he would
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not file a new action in federal district court. In Wells Fargo’s view,
Mr. Cook violated the district court’s previous order and was continuing to
file frivolous suits over the same subject-matter.
The district court scheduled a hearing to determine whether (1) to
impose filing restrictions and (2) to find Mr. Cook in contempt. Mr. Cook
filed two “emergency” motions to vacate the hearing and presented
evidence.
In the meantime, the district court sua sponte consolidated
No. 10-CV-1173 and Mr. Cook’s new filing (No. 13-CV-669), directed that
all future filings be made in No. 10-CV-1173, and denied Mr. Cook’s
motion to vacate the consolidation.
On March 11, 2014, the district judge imposed filing restrictions,
relying on a need to prevent additional frivolous filings. Toward that end,
the district judge directed the Chief Magistrate Judge to review future
filings to determine whether they were frivolous. R. at 2162.
The next document recorded on the district court’s docket is
Mr. Cook’s notice of appeal. But Mr. Cook claims he submitted a number
of post-judgment pleadings that were not docketed because they had been
filed while he was under filing restrictions. They include:
 An application for leave to file a Rule 59(e) motion challenging
the imposition of filing restrictions. The Chief Magistrate
Judge denied Mr. Cook’s application on the ground that it
lacked merit. Id. at 2186 (letter attached to notice of appeal).
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The magistrate judge struck the file stamp, removed the
application from the docket, and returned the documents with a
letter denying authorization.
 A motion for an order directing the clerk to file the prior Rule
59(e) application. The clerk returned this document to Mr.
Cook, with a note that the Chief Magistrate Judge had found
the application lacked merit. Id. at 2192.
 A motion for authorization to object to the magistrate judge’s
so-called “recommendation” on the application to file a Rule
59(e) motion. The clerk returned this document, unfiled, with
similar language. See id. at 2197.
On May 9, 2014, Mr. Cook filed a notice of appeal from the order
imposing filing restrictions and certain other district court orders. At that
point, the district judge had not disposed of the other consolidated case,
No. 13-CV-669. The district judge later entered a final judgment
dismissing No. 13-CV-669, and Mr. Cook filed an amended notice of
appeal.
2. Appellate Jurisdiction
Because final judgment has entered in these consolidated cases, Mr.
Cook’s first notice of appeal has ripened. See Ruiz v. McDonnell, 299 F.3d
1173, 1179 (10th Cir. 2002). Nonetheless, we must determine whether the
underlying orders were appealable. There are two sets of dispositions. One
set consisted of orders by the district judge; the other set consisted of
letters issued by the Chief Magistrate Judge.
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The orders by the district judge were appealable. 1 See Koch v. City of
Del City, 660 F.3d 1228, 1237 (10th Cir. 2011) (“[O]nce a district court
enters a final order, its earlier interlocutory orders merge into the final
judgment and are reviewable on appeal.” (internal quotation marks
omitted)). Liberally construing the amended notice of appeal, we have
1
The notice of appeal purported to appeal from the following orders:
 The order of February 6, 2012, declining to impose filing
restrictions;
 the order of consolidation combining Case Nos. 13-cv-669 and
10-cv-1173;
 the order denying Mr. Cook’s motion to vacate the order of
consolidation;
 the order denying Mr. Cook’s “Emergency Motion for Court
Order Implementing Rule 16, for Court Order Approving
Clerk’s Execution of Pro Se Subpoenas Including Cook’s
Response to ‘Order to Show Cause;’”
 the order denying Mr. Cook’s emergency motion to vacate and
re-set the hearing on filing restrictions;
 the order imposing filing restrictions;
 the Chief Magistrate Judge’s order denying authorization to file
a Rule 59(e) motion;
 the letter from the court clerk rejecting Mr. Cook’s attempt to
re-present his authorization motion; and
 the letter from the court clerk returning objections to the
magistrate judge’s order disallowing authorization to file.
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jurisdiction over Mr. Cook’s challenges to the dismissal of his complaint
in No. 13-CV-669.
But the Chief Magistrate Judge also issued three letters addressing
requests for authorization to file a Rule 59(e) motion and appeal to the
district judge, striking of documents from the record, and the clerk’s
failure to record documents submitted for filing. Mr. Cook could object to
the dispositions reflected in the Chief Magistrate Judge’s letters. See Fed.
R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A). 2 If he had objected, the district
judge would have needed to decide whether to sustain or overrule the
objection. See Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A). In the
absence of an objection to the district judge, we cannot entertain an appeal
from the magistrate judge’s dispositions. See SEC v. Merrill Scott &
Assoc., 600 F.3d 1262, 1269 (10th Cir. 2010) (“[A] magistrate judge may
not issue a final order directly appealable to the court of appeals.”).
We addressed a similar issue in Colorado Building & Construction
Trades Council v. B.B. Andersen Construction Co., 879 F.2d 809 (10th Cir.
1989). In Colorado Building, a magistrate judge entered a post-judgment
2
Rule 72(a) and § 636(b)(1)(A) address pretrial motions. Here the
matter involves motions filed after entry of a judgment rather than before
trial. But when the magistrate judge enters a ruling after entry of the
judgment, the district judge “retains the ultimate responsibility for
decision making.” Colo. Bldg. & Constr. Trades Council v. B.B. Andersen
Constr. Co., 879 F.2d 809, 811 (10th Cir. 1989) (internal quotation marks
omitted).
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order, and a garnishee appealed without filing an objection with the district
judge. Colo. Bldg. & Constr. Trades Council, 879 F.2d at 810. We
concluded that the magistrate judge’s post-judgment order was not
appealable because the order in question had been issued by a magistrate
judge, not a district judge:
Because a magistrate is not authorized to render final
appealable decisions within the meaning of 28 U.S.C. § 1291,
absent both designation by the district court and consent of the
parties under 28 U.S.C. § 636(c), we are not empowered to
address the merits of [the garnishee’s] appeal from the post-
judgment proceedings until the district court has reviewed the
magistrate’s proposed ruling . . . .
Id. at 811.
Mr. Cook tried to bring his complaints to the district judge by
requesting authorization to appeal, but the magistrate judge returned the
documents to Mr. Cook without a ruling by the district judge. In these
circumstances, Mr. Cook could seek a writ of mandamus, asking us to
compel the district judge to rule on the motion for authorization to appeal.
Mr. Cook has not asked us for a writ of mandamus. 3 We could
conceivably interpret his notice of appeal as a petition for a writ of
mandamus. If we did so, the most we could ultimately order is a ruling on
3
Mr. Cook previously filed a petition for writ of mandamus that,
construed liberally, could be read as a request for the district court to
properly docket and decide his motions for authorization. Petition, In re
Cook, No. 14-2079 (10th Cir. May 19, 2014). Our court denied the petition.
Order, In re Cook, No. 14-2079 (10th Cir. June 2, 2014) (clerk’s order).
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the underlying request for leave to appeal to the district judge. If the
district judge were to rule on that issue, the most he could do would be to
alter the judgment under Rule 59(e). To justify alteration of the judgment,
however, Mr. Cook had to present a valid challenge to the filing
restrictions, the reopening of Case No. 10-CV-1173, or the consolidation
of the district court cases. We reject each of those challenges below. Thus,
it would be futile for us to construe the notice of appeal as a petition for
mandamus relief.
3. Decision Not to Impose Filing Restrictions
Mr. Cook has also appealed the 2012 order in which the district judge
decided not to impose filing restrictions. The defendants argue that we
should decline to review the order because litigants cannot challenge a
judgment in their favor. But even if we considered the order to be
unfavorable to Mr. Cook—because it imposed a de facto filing restriction
by taking him at his word that he would not file any new actions—Mr.
Cook’s earlier appeal did not include a challenge to the 2012 order based
on a de facto imposition of filing restrictions. As a result, Mr. Cook has
waived his challenge to the 2012 order. See, e.g., Mason v. Okla. Turnpike
Auth., 182 F.3d 1212, 1214 (10th Cir. 1999) (failure to raise an issue
available in a prior appeal would waive a second appeal concerning the
issue after a remand on a different ground); see also Martinez v. Roscoe,
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100 F.3d 121, 123 (10th Cir. 1996) (“[A] legal decision made at one state
of litigation, unchallenged in a subsequent appeal when the opportunity to
do so existed, becomes law of the case for future stages of the same
litigation, and the parties are deemed to have waived the right to challenge
that decision at a later time.”).
4. Issues Involving Reopening and Consolidation
Mr. Cook argues that the district court lacked Article III jurisdiction
to reopen Case No. 10-CV-1173, erred in consolidating that case with
No. 13-CV-669, and improperly decided Wells Fargo’s motion for filing
restrictions. We reject these arguments.
In determining the issues involving consolidation and filing
restrictions, we apply the abuse-of-discretion standard. See Lehman Bros.
Holdings, Inc. v. Gateway Funding Diversified Mortg. Servs., L.P.,
785 F.3d 96, 100 (3d Cir. 2015) (consolidation); Tripati v. Beaman,
878 F.2d 351, 354 (10th Cir. 1989) (per curiam) (filing restrictions). On
Mr. Cook’s jurisdictional challenge to the decision to reopen Case
No. 10-CV-1173, we apply de novo review. See In re Natural Gas
Royalties, 562 F.3d 1032, 1038 (10th Cir. 2009) (stating that the court
engages in de novo review on issues involving subject-matter jurisdiction).
Mr. Cook erroneously challenges the court’s power to reopen Case
No. 10-CV-1173. His challenge appears to be based on confusion between
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the merits of his underlying challenge and issues involving filing
restrictions. It is true that the underlying dispute in No. 10-CV-1173
terminated when the district court entered its order carrying out our
mandate in the earlier appeal. But the district court retained jurisdiction to
determine Wells Fargo’s motion for filing restrictions. See Judd v. Univ. of
N.M., 204 F.3d 1041, 1044 (10th Cir. 2000) (holding that even though the
Court of Appeals lacked appellate jurisdiction over the merits of an appeal,
the court had jurisdiction to determine whether to impose filing
restrictions).
We also reject the challenge to consolidation, for Mr. Cook cites no
authority that would prohibit consolidation of a case involving a pending
motion for filing restrictions with another related case. See Fed. R. Civ. P.
42 (permitting the district court to consolidate “actions before the court”
that “involve a common question of law or fact”). Mr. Cook’s filing in
No. 13-CV-669 prompted the motion for filing restrictions. That motion
implicated the 2013 case, creating common questions of law or fact in the
two cases. Thus, the court did not abuse its discretion in ordering
consolidation.
Mr. Cook makes three challenges to the imposition of filing
restrictions:
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1. These restrictions constituted an injunction, triggering
procedural requirements in Fed. R. Civ. P. 65 that were not
satisfied.
2. The motion for filing restrictions was not served.
3. The motion was late.
We reject these arguments.
According to Mr. Cook, the filing restrictions constituted an
injunction under Fed. R. Civ. P. 65, requiring the district court to use the
procedures in Rule 65 rather than rely on the court’s inherent authority or
authority under the All Writs Act, 28 U.S.C. § 1651. We disagree. Rule 65
supplies courts with authority to enter injunctions, but that authority exists
elsewhere, too. For example, “[f]ederal 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). And courts can impose filing
restrictions under the All Writs Act. See Howard v. Mail-Well Envelope
Co., 150 F.3d 1227, 1232 (10th Cir. 1998) (noting this court’s authority to
enter filing restrictions “commensurate with our inherent power to enter
orders necessary and appropriate in aid of our jurisdiction under 28 U.S.C.
§ 1651” (brackets omitted)). Mr. Cook does not provide any convincing
authority for us to circumscribe these powers based on Rule 65.
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Mr. Cook further argues that Wells Fargo should have personally
served its motion for filing restrictions because the motion constituted “an
independent petition for relief.” Appellant’s Opening Br. at 26. But Wells
Fargo served Mr. Cook by mail, which was sufficient under Fed. R. Civ. P.
5. See R. at 1924. Thus, Mr. Cook’s argument is invalid.
Finally, Mr. Cook argues that Wells Fargo waited too long to file its
motion for filing restrictions, relying on Fed. R. Civ. P. 7 and N.M. Local
Rule 7.4. But Rule 7 does not set a time limit for filing motions, and Local
Rule 7.4 establishes only the timing for responses and replies to motions.
Contrary to Mr. Cook’s assumption, Wells Fargo’s motion for filing
restrictions did not constitute a “response” to Judge Baca’s prior motion;
rather, the motion was a request for the court to impose the sanctions
Judge Baca had previously requested. As a result, we reject Mr. Cook’s
contention.
5. Use of Mr. Cook’s “Promise” to Punish Him
As noted, we will not consider the merits of Mr. Cook’s attack on the
2012 order declining to impose filing restrictions. But Mr. Cook also uses
that order as a stepping-stone to challenge the later order imposing filing
restrictions. He argues that the district court’s recital of his promise to
stop filing new actions against the defendants “was retroactively held by
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the court to be an injunctive order disobeyed by Cook.” Appellant’s
Opening Br. at 28.
Mr. Cook argues that the court should not have treated his alleged
broken promise as disobeying an injunction because (1) he never made a
promise to Wells Fargo, (2) he did not breach his promise by filing the new
action, and (3) the district court failed to provide the safeguards required
in Federal Rule of Civil Procedure 65 before entering the “injunction.” But
in its order imposing filing restrictions, the district judge stated:
Whether Mr. Cook made a promise to this Court is no longer
relevant to this Court’s imposition of filing restrictions. The
Court’s imposition of filing restrictions is based on Mr. Cook’s
repeated filings of frivolous pleadings asserting claims that
have been decided by other courts, claims that Mr. Cook has no
standing to assert, or claims over which this Court has declined
to exercise jurisdiction. . . .
R. at 2153 n.26.
It is true, as Mr. Cook points out, that the district court later referred
to a “broke[n] . . . promise.” See id. at 2157. Notwithstanding the
references to Mr. Cook’s so-called “promise,” the district judge justified
the restrictions based on Mr. Cook’s lengthy, abusive litigation history. In
view of this rationale, we reject Mr. Cook’s arguments concerning the
district judge’s reliance on a broken “promise” or the entry of an
“injunction.”
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6. District Court’s Alleged Misuse of its “Criminal Contempt”
Powers
Mr. Cook argues that by dismissing the case in No. 13-CV-669, the
district judge (1) imposed a sanction of criminal contempt, stripping him
of a $5.5 billion claim without appropriate procedural safeguards, and
(2) deprived him of the constitutional rights to due process and a jury trial.
These arguments lack merit. The district judge explained that it was
dismissing the action for lack of merit rather than as a “criminal contempt”
sanction:
In the Complaint, Mr. Cook asserted claims against Wells
Fargo Bank, N.A., Scott and Pamela Jane Garrett Trust, BID
Group, Inc., Scott Garrett and Pamela Jane Garrett,
individually and as trustees of the Trust, and Scott Garrett, as
an officer of BID Group, Inc. (Defendants) that this Court
previously dismissed without prejudice for lack of standing.
Mr. Cook has not acquired standing under 11 U.S.C. § 554(c),
as the Court more fully explained in its MEMORANDUM
OPINION ON FILING RESTRICTIONS (Doc. No. 160). In the
Complaint, Mr. Cook also reasserted claims over which this
Court either lacks jurisdiction, has declined jurisdiction, or has
already dismissed with prejudice under Rule 12(b)(6) as legally
unsupportable. Hence, it is appropriate to enter judgment in
favor of Defendants and dismiss the Complaint in its entirety.
See Doc. Nos. 94, 122, & 123.
Supp. R. filed 05/19/2015 at 36. Because the dismissal was proper, the
court did not violate the Seventh Amendment or the Fourteenth
Amendment’s Due Process Clause. See Shannon v. Graves, 257 F.3d 1164,
1167 (10th Cir. 2001).
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Mr. Cook also challenges the district court’s refusal to exercise
jurisdiction over his state-law claims. In the complaint in No. 13-CV-669,
Mr. Cook alleged that the district court had jurisdiction over his state-law
claims under 28 U.S.C. § 1334 because they had arisen “in a Title 11
bankruptcy case.” Supp. R. filed 06/26/2014, Vol. 1 at 5. The district court
rejected this contention, stating it could discern no Title 11 claims within
the state-law claims advanced by Mr. Cook. R. at 2151-52. For
substantially the reasons stated in the orders, the district judge properly
(1) declined jurisdiction over Mr. Cook’s claims in No. 13-CV-669 and
(2) dismissed these claims.
In addition, Mr. Cook argues that the imposition of filing restrictions
was criminal rather than civil because the restrictions did not serve a
remedial purpose. Filing restrictions prevent future misconduct and
restrain a litigant from continuing to abuse the court system, thus serving a
remedial purpose. As a result, we reject Mr. Cook’s characterization of the
filing restrictions. See Baum v. Blue Moon Ventures, LLC, 513 F.3d 181,
192-93 (5th Cir. 2008) (holding that filing restrictions were not based on
criminal contempt because the purpose was to curtail future court access
rather than to punish the claimant).
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7. Adequacy of Findings to Support Filing Restrictions
Mr. Cook also attacks the order implementing filing restrictions,
arguing that the record does not show that his pro se filings were numerous
or abusive. This contention lacks merit. The district court painstakingly
documented Mr. Cook’s lengthy, abusive filing history and the need for
filing restrictions. Id. at 2127-57.
According to Mr. Cook, the district court “erred in taking judicial
notice of findings of fact, or just comments, made in other cases.”
Appellant’s Opening Br. at 42. Presumably Mr. Cook is referring to other
courts’ observations that his filings in those courts were vexatious or
lacked merit. The numerous judicial decisions deploring Mr. Cook’s
conduct and rejecting his arguments are relevant evidence that his
litigation is vexatious. This argument lacks merit.
8. Scope of Filing Restrictions
Though we affirm the use of filing restrictions to deter Mr. Cook
from abusing the court system, these restrictions must be “carefully
tailored.” Sieverding v. Colorado Bar Ass’n, 469 F.3d 1340, 1343
(10th Cir. 2006) (internal quotation marks omitted). The district court’s
order is overbroad in two respects.
First, the order is overly broad in terms of subject-matter. The
district judge prohibited “Mr. Cook, individually, as a representative of
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Yolanda Cook, deceased, as representative of any corporate entity . . . or
as successor in interest to Philip J. Montoya, the Chapter 7 Trustee in Mr.
Cook’s bankruptcy case . . . from filing any pleadings, motions, or other
documents against any of the parties named as defendants in Case No. 11
CV 1173 JP/KBM or in Case No. 13 CV 669 JP/KBM in the United States
District Court for the District of New Mexico without the signature of an
attorney licensed to practice before the Court.” R. at 2161. This restriction
entails an outright bar on pro se litigation against these defendants,
unlimited by subject-matter.
The scope of this bar is not justified by the findings concerning
Mr. Cook’s abusive filings regarding the subject-matter of the current
dispute. Therefore, we remand with instructions to modify the filing
restrictions order to prohibit Mr. Cook’s pro se filings against these
defendants with respect to the subject-matter of these cases. See
Sieverding, 469 F.3d at 1345 (holding that a filing restriction was too
broad in restricting filings on any subject-matter); see also Andrews v.
Heaton, 483 F.3d 1070, 1077 (10th Cir. 2007) (modifying filing
restrictions to cover only filings in future cases relating to the subject-
matter of the federal suits).
Second, the order is overbroad in terms of the individuals and
entities that Mr. Cook is restricted from suing. The district judge enjoined
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Mr. Cook “from filing any pleadings, motions, or other documents pro se
in the United States District Court for the District of New Mexico without
leave of court.” R. at 2161 (emphasis added). This broad restriction against
filing any further pro se pleadings against anyone without court permission
is not justified by the district court’s findings concerning Mr. Cook’s
abusive filings against the parties named as defendants in this case. See
Sieverding, 469 F.3d at 1345 (holding that a filing restriction was too
broad in restricting future filings as to any defendant).
For both reasons, we remand to the district court to limit the filing
restrictions to claims against the parties who were defendants in Case No.
11 CV 1173 JP/KBM and Case No. 13 CV 669 JP/KBM. But the district
court can continue to serve as a gatekeeper for pro se filings by Mr. Cook
against these defendants, even where such filings are ostensibly unrelated
to the current dispute.
9. Recusal for Bias
Finally, Mr. Cook contends that the district judge and Chief
Magistrate Judge should have recused themselves and should be removed
from his case for bias. This contention is rejected. In our view, the record
does not reflect bias on the part of the district judge or magistrate judge.
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10. Conclusion
We dismiss this appeal in part for lack of appellate jurisdiction,
reverse and remand with directions to modify the district court’s filing
restrictions (as discussed above), affirm in all other respects, and deny all
pending motions.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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