* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore submitted without o ral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel. The court ge nerally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

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

### November 30, 2005

Clerk of Court 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DON ALTON HARPER, Plaintiff-Appellant,

v. JOHN ASHCROFT, U.S. Attorney General; ROBERT S. MULLER, III, Director of the FBI; KEVIN L. STAFFORD, FBI; ANGEL SHANK, B.O. Prisons, Custodian of Records, FCI Englewood; GERALD T. VANBEBBER, Federal Judge; ROBERT S. STREEPY, Asst. U.S. Attorney, Defendants-Appellees. No. 05-1028 (D.C. No. 03-Z-2653) (Colorado)



### ORDER AND JUDGMENT *

Before SEYMOUR , HARTZ , and McCONNELL , Circuit Judges.
Donald Harper, a state prisoner appearing pro se , brought this appeal after-2-

the district court denied as moot two motions he fi led. Pursuant to Haines v.
Kerner , 404 U.S. 519, 520 (1972), we construe Mr. Harper’ s pleadings liberally, deny his application to proceed in forma pauperis , and dismiss the appeal. Mr. Harper originally filed an action in district c ourt under Bivens v. Six Unknown Named Federal Agents , 403 U.S. 388 (1971), in which he alleged violations of due process and the First and Fourth Amendments. The district court determined that he had failed to allege a cog nizable Bivens claim and that he was actually seeking to overturn his state courtconviction. It dismissed Mr. Harper’s complaint without prejudice to allow him t o seek habeas corpus relief in the sentencing court. Mr. Harper appealed, and we affirmed. Harper v. Ashcroft , 113 Fed. Appx. 324 (10th Cir. Sept. 24, 2004). Mr. Harper subsequently filed two documents in the district court, one entitled “Motion Requesting Leave of this Court Pur suant to F.R.Civ.Proc. R. 60(a)(c) to Stay of Proceedings to Enforce a Judgme nt,” and the other entitled “Motion Requesting Leave From This Court Requesting This Court to Effect the Attached Summons for Proper Service on All Parties Pursuant to the Rules of Civil Procedure Rule 4, 5(b) Deposition.” The dist rict court, referencing its prior decision in the case and our affirmance, denied Mr. Harper’s two applications as moot, noting that his case had already been decided , dismissed, and closed. Rec., doc. 62 at 1; id. , doc. 66 at 1. The court further directed the cle rk to strike any1 On appeal, Mr. Harper also appears to seek for the first time attorney’s

fees. We decline to address issues not raised or c onsidered below. See Walker v. Mather , 959 F.2d 894, 896 (10th Cir. 1992). In addition, we deny Mr. Harper’s motion titled “Pursuant to Federal Rules of Civil P rocedures Request for Review Under Title 28 United States Code Sec. § 2101,” in which he reiterates the claims asserted in his appellate brief. -3- further filings by Mr. Harper in this action. Mr. Harper challenges the court’s order in this appeal. We find no error in the district court’s determinat ion that Mr. Harper’s motions are moot. Mr. Harper’s Rule 60(a) motion appears to request both a stay of the proceedings as well as injunctive relief aga inst defendants. It also alleges violations of the First, Fifth, Sixth, and Fourteen th Amendments, apparently arising out of his underlying state court convictio n. His other motion seeks leave to take depositions for “contempt, and other wrongf ul acts,” monetary damages, and release from imprisonment. As best we can tell from the motions and Mr. Harper’s brief on appeal, he appears to assert argu ments that were considered and decided in his appeal, see Harper , 113 Fed. Appx. at 324-26. Needless to say, we will not revisit those issues. Moreover, because the underlying claims have been decided and the case dismissed and closed, no groun d exists upon which Mr. Harper may seek depositions. 1
Nor do we find error in the district court’s direct ion to the clerk of the court to strike any further filings by Mr. Harper i n this action. In his appeal, Mr.-4-

Harper characterizes the court’s direction as a “re quirement that [he] be prohibited from filing anyfurther complaints or petitions in the district co urt of Colorado without payment of all filing fees.” This requirement, Mr. Harper claims, effectively prevents him from filing anythi ng with the court and, therefore, violates his “constitutional/statutory r ight of access to the courts.” However, we do not interpret the district court’s d irection to the clerk as prohibiting Mr. Harper from filing future actions n ot based on claims already decided in the present action. Nor do we interpretthe district court’s direction as prohibiting Mr. Harper from seeking ifp status in new and unrelated actions. On the contrary, the court simply stated that the pres ent action has been fully adjudicated and is now closed. Mr. Harper may no l onger submit filings in a closed case, and the district court has the authori ty to strike any such filings. See Werner v. State of Utah , 32 F.3d 1446, 1447-48 (10th Cir. 1994) ; Tripati v.
Beaman , 878 F.2d 351, 352 (10th Cir. 1989). Prohibiting Mr. Harper from further filings in a closed case, however, is a far-cry fro m barring his access to the courts. The district court’s direction leaves him free to file new ifp petitions and complaints with the sole restriction that any new f iling must raise claims and issues not already decided in the present action. The district court also denied Mr. Harper’s application to proceed in forma pauperis ( ifp ) on appeal pursuant to 28 U.S.C. § 1915 and Fed. R . App. P. 24.-5-

Mr. Harper has filed a motion with us for leave to proceed ifp on appeal. Upon review of the record and Mr. Harper’s appellate fil ings, it is apparent he has not raised a reasoned, nonfrivolous argument on appeal. See McIntosh v. U.S. Parole
Comm’n , 115 F.3d 809, 812 (10th Cir. 1997) (citation omitted). We therefore deny his request to proceed ifp. For the aforementioned reasons, we DENY Mr. Harper’s request to proceed in forma pauperis on appeal, and DISMISS the appeal. See 28 U.S.C. § 1915(e)(2)(B)(i).
SUBMITTED FOR THE COURT Stephanie K. Seymour Circuit Judge