UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

KEITH JUDD,

Plaintiff-Appellant,

v. THE UNIVERSITY OF NEW MEXICO; DONALD GRADY, II; ALBUQUERQUE POLICE DEPARTMENT; U.S. SECRET SERVICE, Defendants-Appellees. No. 99-2008

ORDER Filed March 22, 2000

Before BALDOCK , HENRY , and MURPHY , Circuit Judges.

On February 29, 2000, we entered an opinion dismiss ing Mr. Judd’s appeal in this case for lack of jurisdiction and imposing appellate sanctions on him. Judd v. University of New Mexico , No. 99-2008, 2000 WL 228298 (10th Cir. Feb. 29, 2000). Mr. Judd was given an opportunity to file o bjections to the sanctions, and he has done so.-2-

We conclude that Mr. Judd’s objections to the propo sed filing restrictions lack merit. Accordingly, the restrictions set forth in our February 29, 2000 opinion shall take effect upon the date this order is filed. Finally, upon its own motion, the court has determi ned that amendment of the February 29, 2000 opinion is necessary. Accord ingly, the court’s previous opinion in this case is amended by deleting footnot e two in its entirety. A copy of the court’s amended opinion is attached to this ord er. Entered for the Court Patrick Fisher, Clerk of Court By: Keith Nelson Deputy Clerk

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 29 2000 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KEITH JUDD,

Plaintiff-Appellant,

v. THE UNIVERSITY OF NEW MEXICO; DONALD GRADY, II; ALBUQUERQUE POLICE DEPARTMENT; U.S. SECRET SERVICE, Defendants-Appellees. No. 99-2008

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO (D.C. No. CIV-93-740-LH)

Submitted on the briefs: Keith Judd, pro se. Norman F. Weiss, Simone, Roberts & Weiss, P.A., Alb uquerque, New Mexico, for Defendant-Appellee University of New Mexico.

Before BALDOCK , HENRY , MURPHY , Circuit Judges.

BALDOCK , Circuit Judge.1 After examining the briefs and appellate record, th is panel has determined

unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.

-2- In Judd v. University of New Mexico , No. 97-2273, 1998 WL 314315 (10th Cir. Jun. 2, 1998) (unpublished disposition), we re versed the district court’s order imposing filing restrictions on Mr. Judd, and reman ded this case to the district court. On February 9, 1999, the district court ent ered an order imposing amended filing restrictions on Mr. Judd, from which he now appeals. 1 We lack jurisdiction over Mr. Judd’s appeal, but we now announce additio nal filing restrictions in this court on Mr. Judd.

1. Appellate jurisdiction We consider first whether we have jurisdiction overthis appeal. The district court entered its order proposing amended filing restrictions on October 30, 1998. On December 17, 1998, Mr. Judd f iled a notice of appeal from the October 30, 1998 order. The notice of appeal w as premature; the district court’s order proposing sanctions was not a final, appealable order, because it did not “end[] the litigation on the merits and leave[] nothing for the court to do but2 Since our June 2, 1998 remand, Mr. Judd has filed anumber of notices of

appeal and amended notices of appeal purporting to appeal from the district court’s disposition of a motion for reconsiderationwhich he filed in 1996. These untimely notices of appeal did not create jurisdict ion in this court and are not properly before us.

-3- execute the judgment.” Van Cauwenberghe v. Biard , 486 U.S. 517, 521 (1988) (quotation omitted). 2 Under Fed. R. App. P. 4(a)(2), a premature notice o f appeal may ripen when the district court enters its final order. Mr . Judd’s notice of appeal did not ripen when the district court entered its final ord er imposing filing restrictions on February 9, 1999, however. The order proposing fil ing restrictions was subject to Mr. Judd’s objections and therefore would not have been final even if immediately followed by entry of judgment. See FirsTier Mortgage Co. v. Investors Mortgage Ins. Co. , 498 U.S. 269, 276 (1991) (“Rule 4(a)(2) permits a notice of appeal from a nonfinal decision to operat e as a notice of appeal from the final judgment only when a district court announces a decision that would be appealable if immediately followed by the entry of judgment.”) . We therefore conclude that Mr. Judd’s December 17, 1998 notice o f appeal was ineffective to appeal from either the order proposing filing restr ictions or the ultimate order imposing filing restrictions. Cf., e.g. , Perez-Priego v. Alachua County Clerk of
Court , 148 F.3d 1272, 1273 (11th Cir. 1998) (applying FirsTier , holding that3 Mr. Judd persists in arguing that he has sixty days to appeal because the

United States Secret Service is a party to this action. See Fed. R. App. P. 4(a)(1)(B). However, the Secret Service was volunt arily dismissed from this case on May 16, 1994, and, as we recognized in a previou s appeal, his argument lacks merit. See Judd v. University of N.M. , No. 94-2236, 1995 WL 228234, at **1 (10th Cir. Apr. 17, 1995) (unpublished disposition)

. -4- notice of appeal from magistrate judge’s recommendations did not ripen when district court entered final judgment). On April 5, 1999, Mr. Judd filed a second notice of appeal, this time from the February 9, 1999 order. This notice of appeal was untimely. See Fed. R. App. P. 4(a)(1)(A) (granting party thirty d ays from entry of order appealed from to file notice of appeal). 3 It did not confer jurisdiction over this court. We therefore lack jurisdiction over Mr. Jud d’s appeal.
2. Prospective filing restrictions In a previous decision in this case involving Mr. J udd, we detailed his lengthy and abusive filing history in both the district court and this court. See Judd v. University of N.M. , 1998 WL 314315, at **4. Because it appeared at that time that the abusive history was “limited to plead ings filed in this case or against these defendants,” id. , we limited the filing restrictions to “further fi lings from appellant pertaining to this appeal” and “further appeals or original proceedings relating to the parties and subject matter of this case filed by appellant,” id. at **5.4 On occasion, Mr. Judd has filed an appeal which was not jurisdictionally

barred or subject to dismissal for failure to pay the appropriate filing fee. See, e.g. , Judd v. Dantis , No. 99-2251, 2000 WL 123755 (10th Cir. Feb. 2, 20 00). These occasions, however, form only a small minority of his filings with this court. -5- Since the entry of our previous order, however, it has become clear that Mr. Judd’s history of abusive filings is not limite d to the parties or subject matter of this case. In fact, Mr. Judd has filed numerous jurisdictionally defective appeals with this court against a variety of other parties. See Judd v. Apfel , No. 98-2320 (10th Cir. Feb. 26, 1999) (dismissed fo r lack of appellate jurisdiction); Judd v. KOAT TV-7 , No. 98-2330 (10th Cir. Feb. 3, 1999) (dismissed as jurisdictionally defective); Judd v. Coronado Mall , No. 98-2348 (10th Cir. Jan. 28, 1999) (dismissed as jurisdictionally defective); Judd v. Dantis , No. 98-2321 (10th Cir. Jan. 11, 1999) (dismissed fo r lack of appellate jurisdiction); see also Judd v. KOAT TV-7 , No. 97-2359 (10th Cir. Feb. 20, 1998) (dismissed for failure to prosecute). Recently, we have dismissed a number of his filings for failure to pay the filing fee, because he has three strikes under 28 U.S.C. § 1915(g). See Judd v. New Mexico , No. 99-2133 (10th Cir. Aug. 16, 1999); Judd v. Apfel , No. 99-2149 (10th Cir. Aug. 16, 1999); Judd v. Coronado Mall , No. 99-2153 (10th Cir. Aug. 16, 1999); Judd v. KOAT TV , No. 99-2174 (10th Cir. Aug. 16, 1999). 45 A recent examination of Fifth Circuit filing record s indicates at least

sixty-six appeals to which Mr. Judd is a party have been fil ed in that circuit. -6- Both the United States Supreme Court and the Fifth Circuit have imposed filing restrictions on Mr. Judd. In imposing restr ictions, the Supreme Court cited Mr. Judd’s abuse of its certiorari and extraordinary writ processes. See Judd v. United States Dist. Ct. for the W. Dist. of Tex. , No. 99-5260, 1999 WL 809029, at *1 (U.S. Oct. 12, 1999) (order barring prospective filings in noncriminal cases). The Fifth Circuit noted:

Appellant Keith Russell Judd has thus far filed thi rty-six notices of appeal. Fifteen have been dismissed for being frivolous, for lack of jurisdiction, or for lack of prosecutio n. Judd also has filed no less than 180 motions, and sent at least 4 7 additional documents upon which no action was taken. Judd v. United States Dist. Ct. , Nos. 98-51118, 98-51195, 99-50023 (5th Cir. Apr. 26, 1999). 5 Additionally, we note that the United States District Court for the Western District of Texas has barred Mr. Judd f rom submitting further filings in certain actions brought in that court. See Judd v. University of N.M. , No. MO-96-CA-122-F (W.D. Tex. Dec. 18, 1998) (“Omni bus Order Regarding the Attempted Filings of Keith Russell Judd”), Appellee s’ Supp. App., Ex. E. Even though we lack jurisdiction to consider the me rits of this appeal, we have jurisdiction to impose filing restrictions on Mr. Judd for his conduct in this and other cases. See Okon v. Commissioner , 26 F.3d 1025, 1027 (10th Cir.-7-

1994). Mr. Judd’s filings in this court have been repetitive, frivolous and malicious. More serious and broad-ranging filing r estrictions are needed to prevent further frivolous and jurisdictionally defe ctive filings. We therefore impose additional restrictions on his filings in th is court, whether or not he pays a full filing fee. Mr. Judd is enjoined from proceed ing as an appellant or a petitioner without the representation of a licensedattorney admitted to practice in this court, unless he first obtains permission to p roceed pro se. To do so, he must take the following steps: 1. File a petition with the clerk of this court re questing leave to file a pro se proceeding; 2. Include in the petition the following informati on: a. A list, by case name, number, and citation wher e applicable, of all proceedings currently pending or filed previously i n this court by Mr. Judd, with a statement indicating the current s tatus of disposition of, each proceeding; b. A list apprising this court of all outstanding injunctions, contempt orders, or other judicial directions limiting his a ccess to state or federal court, including orders and injunctions req uiring him to be represented by an attorney; said list to include th e name, number and citation, if applicable, of all such orders and inj unctions; 3. File with the clerk a notarized affidavit, in p roper legal form, which recites the issues he seeks to present, including aparticularized description of the order or ruling being challenged and a short statem ent of the legal basis asserted for the challenge. The affidavit must also certify , to the best of his knowledge,-8-

that the legal arguments advanced are not frivolous or made in bad faith; that they are warranted by existing law or a good faith argum ent for the extension, modification, or reversal of existing law; that the appeal or other proceeding is not interposed for any improper purpose; and that h e will comply with all federal appellate rules and local rules of this court. These documents shall be submitted to the clerk of this court, who shall forward them to the chief judge for review to determine whether to permit the pro se appeal or other proceeding. Without the chief j udge’s approval, the matter will not proceed. If the chief judge approves the submi ssion, an order will be entered indicating that the matter shall proceed in accordance with the Federal Rules of Appellate Procedure and the Tenth Circuit Rules. O nly at that juncture will the appeal or other proceeding formally be filed in thi s court. These filing restrictions are in addition to the re strictions previously placed on Mr. Judd with regard to filings involving the parties and subject matter of this case. Mr. Judd shall have ten days from the date o f this opinion to file written objections, limited to fifteen pages, to these prop osed restrictions. Unless this court orders otherwise upon review of any objection s, the restrictions shall take effect twenty days from the date of this opinion an d shall apply to any matter filed by Mr. Judd with this court after that time.-9-

3. Conclusion This appeal is DISMISSED as jurisdictionally defect ive. Additional filing restrictions as set forth herein shall be imposed upon Mr. Judd unless this court orders otherwise upon review of timely filed writte n objections. All pending motions are hereby DENIED.