United States District Court, E.D. Wisconsin
BARRY J. SMITH, SR., Plaintiff,
UNITED STATES CONGRESS and WISCONSIN LEGISLATURE, Defendants.
ORDER VACATING JUDGMENT AND REPORT AND RECOMMENDATION
JOSEPH UNITED STATES MAGISTRATE JUDGE.
J. Smith, Sr. brought this lawsuit against the U.S. Congress
and the Wisconsin Legislature, alleging unconstitutional
deprivation of his rights to keep and bear arms and to hold
public office due to a prior criminal conviction. I dismissed
Smith's complaint for failure to state a claim on October
3, 2018. (Docket # 15.) The case is before me again on a
mandate from the Seventh Circuit issued April 22, 2019,
dismissing Smith's appeal on the basis that one of the
defendants never consented to magistrate jurisdiction.
entries of August 31, 2018 reflect consent of all parties to
magistrate jurisdiction, the appearance of an Assistant U.S.
Attorney for both defendants (Docket # 4), a motion to
dismiss on behalf of both defendants (Docket # 6), and joint
briefing on the motion (Docket # 7). In fact, the Wisconsin
Legislature had not consented to magistrate jurisdiction, the
AUSA did not appear for the Wisconsin Legislature, and the
motion was brought only on behalf of the U.S. Congress. The
errors, apparently caused by a typographical mistake on the
appearance form, were not discovered until the Attorney
General for the State of Wisconsin alerted the court of
appeals that the Wisconsin Legislature had not in fact
consented to magistrate jurisdiction. (Docket # 24 at 1-2.)
one party has not consented to magistrate jurisdiction, a
magistrate judge may not issue a final judgment in the case.
See Coleman v. Labor and Indus. Review Comm'n,
860 F.3d 461 (7th Cir. 2017). Therefore, I will vacate the
earlier judgment and recommend that Smith's case be
dismissed in its entirety for failure to state a claim under
F. R. Civ. P. 12(b)(6), and that Smith's new motion to
amend his complaint (Docket # 21) be denied.
is no stranger to litigating cases in this district. In 1990,
a jury convicted Smith of threatening to kill United States
District Judge John Reynolds in violation of 18 U.S.C. §
115(a)(1)(B). (United States v. Smith, 982 F.2d 407
(1991), Ex. A to Def.'s Mot. to Dismiss, Docket # 7-1 at
5.) Smith was sentenced to a one-year confinement period and
a four-year period of supervised release, which was
subsequently reduced to a period of three years of supervised
the completion of his sentence, Smith filed multiple civil
rights complaints alleging that the United States and the
State of Wisconsin violated his constitutional rights.
(Docket # 7-1 at 8-38.) In early 2008, Smith filed a
complaint claiming that laws prohibiting him from running for
office because of his prior conviction violated his due
process and equal protection rights. (Id. at 8-11.)
U.S. District Judge Rudolph T. Randa dismissed Smith's
complaint for failure to state a claim. (Id.) Smith
appealed and the Seventh Circuit affirmed. (Id. at
November 2008, Smith filed a complaint against the President
of the United States, the Governor of Wisconsin, and the
Mayor of Milwaukee. (Docket # 7-1 at 14-15.) Smith alleged
six similar grievances against the defendants, which U.S.
District Judge J.P. Stadtmueller dismissed. (Id. at
16-20.) Smith appealed and the Seventh Circuit affirmed.
(Id. at 21-22.)
February 2013, Smith filed a complaint against Congress, the
President, the Governor of Wisconsin, the Mayor of Milwaukee,
and the Social Security Administration alleging that he was
denied a variety of constitutional rights. (Id. at
23-24.) U.S. District Judge Charles N. Clevert found the
allegations frivolous and dismissed the lawsuit.
(Id. at 25-29.)
October 2017, Smith filed another civil rights complaint
against the United States and the State of Wisconsin alleging
that he is being kept in slavery because as a convicted felon
his citizenship was taken from him, he cannot bear arms to
protect himself and his family, he must incriminate himself
when asked about his felony conviction, perpetrators of
crimes against his family are not prosecuted, and he cannot
hold political office. (Docket # 7-1 at 30-32.) U.S.
Magistrate Judge David E. Jones dismissed the lawsuit with
prejudice on January 29, 2018. (Docket # 7-1 at 33-38.) Smith
subsequently filed several motions attempting to reopen the
lawsuit, which Judge Jones denied on June 26, 2018. (Docket #
7-1 at 39.) Smith appealed and the Seventh Circuit affirmed.
Smith v. United States, Appeal No. 18-2408 (Jan. 19,
2018, Smith filed this lawsuit challenging 18 U.S.C. §
922(g)(1), which makes it unlawful for any person “who
has been convicted in any court of a crime punishable by
imprisonment for a term exceeding one year” to
transport, possess, or receive firearms or ammunition. Smith
argued that this provision is an unconstitutional bill of
attainder. (Docket # 1 at 1.) Smith also argued that
Wisconsin Constitution Art. XIII § 3(2)-(3), which
prohibits persons convicted of felonies from holding public
office, is an unconstitutional bill of attainder.
(Id. at 2.) Smith requested restoration of his
Second Amendment right to keep and bear arms, and his
eligibility to run for office. (Id. at 2.)
9, 2018, Smith submitted an amended complaint arguing that
Congress has no authority under the Commerce Clause to
“regulate or deny my right to carry a gun, ” and
that the Wisconsin legislature lacks authority “to deny
my right to vote for myself.” (Docket # 3.) This
amended complaint did not include the bill of attainder
arguments. The amended complaint also identified the
defendants as the U.S. Congress and the Wisconsin
Legislature, while the original complaint identified them as
the United States of America and the State of Wisconsin.
August 31, 2018, the U.S. Congress moved to dismiss the
complaint on the basis that Smith failed to state a claim
upon which relief can be granted. (Docket # 6.) On September
6, 2018, Smith filed a motion to file a second amended
complaint, alleging that he had inadvertently failed to
incorporate the first complaint into the amended complaint.
(Docket # 9 at 4.) The next day, he amended his motion to
file a second amended complaint. (Docket # 10.) In my
decision and order of October 3, 2018, I granted the motion
to dismiss and denied Smith's motions to file a second
amended complaint and motion to amend the motion. (Docket #
December 6, 2018, Smith filed a notice of appeal with the
Seventh Circuit. (Docket # 17.) On February 28, 2019, the
Seventh Circuit ordered that Smith's appeal be dismissed
on the basis that the Wisconsin Legislature had not consented
to magistrate jurisdiction. (Docket # 24 at 1-2.) On March 4,
2019, Smith filed a motion for leave to file a second amended