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Smith v. United States Congress

United States District Court, E.D. Wisconsin

November 14, 2019

BARRY J. SMITH, SR., Plaintiff,
v.
UNITED STATES CONGRESS, and WISCONSIN LEGISLATURE, Defendants.

         ORDER ADOPTING JUDGE JOSEPH'S RECOMMENDATION (DKT. NO. 25), DENYING PLAINTIFF'S MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT (DKT. NO. 21), DENYING AS MOOT UNITED STATES CONGRESS'S MOTIONS TO CONSOLIDATE CASES (DKT. NOS. 29(I), 32(I)); GRANTING UNITED STATES CONGRESS'S MOTIONS TO DISMISS IT AS A DEFENDANT (DKT. NOS. 29(II), 32(II)), DENYING WITHOUT PREJUDICE UNITED STATES CONGRESS'S MOTIONS TO BAR PLAINTIFF FROM FILING FURTHER PRO SE LAWSUITS (DKT. NOS. 29(III), 32(III)) AND DISMISSING CASE

          HON. PAMELA PEPPER CHIEF UNITED STATES DISTRICT JUDGE.

         On June 28, 2018, the plaintiff, who is representing himself, filed a complaint against the United States and the State of Wisconsin, alleging that the defendants have violated his rights under the Second Amendment and the Wisconsin Constitution because as a felon, he cannot own a gun or hold office unless pardoned. Dkt. No. 1. Two weeks later, the plaintiff filed an amended complaint against the United States Congress and the Wisconsin Legislature, alleging that 18 U.S.C. §§922(d) and (g) are void under the Constitution because Congress does not have the authority under the Commerce Clause to regulate the plaintiff's ability to own a gun. Dkt. No. 3. He further alleged that “Amendment 3(2)(3)” of the Wisconsin Constitution is void under the federal Constitution because the Wisconsin Legislature has no authority to deny the plaintiff the right to vote for himself. Id. The United States Congress filed a motion to dismiss on August 31, 2018. Dkt. No. 6. The Wisconsin Legislature, however, did not respond to the complaint. On October 3, 2018, Magistrate Judge Nancy Joseph, to whom the case was assigned at the time, issued an order granting the motion to dismiss. Dkt. No. 15.

         The plaintiff appealed on December 6, 2018. Dkt. No. 17. Three months later, while the appeal was pending, he filed a motion for leave to file a second amended complaint. Dkt. No. 21. This court had no jurisdiction to rule on the motion to file a second amended complaint because the plaintiff's notice of appeal deprived it of jurisdiction.

         On April 29, 2019, the Seventh Circuit Court of Appeals dismissed the appeal, noting that Judge Joseph did not have the authority to dismiss the case because the Wisconsin Legislature had not appeared as a defendant or consented. Dkt. No. 24. Judge Joseph vacated her prior order, and issued a report recommending that this court deny the plaintiff's motion for leave to file a second amended complaint and dismiss the case in its entirety. Dkt. No. 25. Judge Joseph construed the plaintiff's claims as alleging that the defendants had “deprived him of his Second Amendment rights and deprived him of his right to run for office.” Id. at 5. She observed that the plaintiff had made similar claims on a number of previous occasions. Id. at 5. She opined that his first amended complaint “manifestly fails to state a claim on either ground.” Id. at 6. As to his request to file a second amended complaint, Judge Joseph found that the second amended complaint “is merely a rehash of his previous arguments.” Id.

         The plaintiff objected to Judge Joseph's recommendation. Dkt. No. 26. Both the United States Congress and the Wisconsin Legislature filed briefs in support of Judge Joseph's recommendation. Dkt. Nos. 27, 28. The Wisconsin Legislature-which had not filed a motion to dismiss-argued in its brief that the court “may” dismiss the case against it because it had not been properly served. Dkt. No. 28 at 3. It also asserted that the plaintiff's constitutional claim against it failed “based on case law interpreting 42 U.S.C. § 1983 and the Eleventh Amendment, ” id. at 6, that it was not a suable entity under 42 U.S.C. §1983 because it is not a person, id. at 6-7, and that it was immune from suit under the Eleventh Amendment, id. at 7-8. The legislature argued that the court should “accept” Judge Joseph's report and recommendation, for the reasons she stated and for the reasons it stated in its brief. Id. at 8.

         The United States Congress also has filed motions asking the court to consolidate this case with two cases the plaintiff filed in 2019, [1] to dismiss the consolidated case and to bar the plaintiff from filing further suits. Dkt. Nos. 29, 32. The plaintiff does not object to consolidation, but objects to dismissal on the grounds he has raised in this and previous cases and says that if the court bars him from filing cases, it will strip him of his First Amendment right to petition for redress. Dkt. Nos. 30, 33.

         I. Judge Joseph's Recommendation to Dismiss Case

         A. Standard of Review

         The court may accept, reject or modify a magistrate judge's findings and recommendations on a dispositive motion. Federal Rule of Civil Procedure 72(b)(3). If a party objects to a magistrate judge's recommendation, the court reviews de novo the portions of the report to which the party has objected. Id.

         A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint. A complaint must give the defendant fair notice of the claim and the grounds upon which it rests. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Although a plaintiff need not plead detailed factual allegations, he or she must do more than present “labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Id. The complaint must state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation omitted).

         B. Analysis

         In the last eleven and a half years, courts in this district have dismissed four civil complaints from the plaintiff, all alleging various violations of the plaintiff's constitutional rights due to his status as a descendant of slaves and his status as a convicted felon. Smith v. United States, Case No. 08-cv-262; Smith v. President of the United States, Case No. 08-cv-956; Smith v. United States Congress, Case No. 13-cv-206; Smith v. United States, Case No. 17-cv-1419.

         In the first case, Smith v. United States, Case No. 08-cv-262, the plaintiff sued the United States and the State of Wisconsin, challenging the fact that his conviction prevented him from running for alderman. He claimed that he was entitled to relief under the due process and equal protection clauses. Id. at Dkt. No. 3. Judge Rudolph T. Randa dismissed the case, explaining to the plaintiff that the legislature had a rational basis for preventing convicted felons from running for office, that he'd sued the wrong defendants (because the legislatures, not the governments, made and enforced the laws), and that portions of his claims were “patently frivolous.” Id. at 1-3.

         In the second case, Smith v. President of the United States, the plaintiff sued the President of the United States, the governor of Wisconsin and the mayor of Milwaukee, alleging that he had been “denied public employment opportunities, the right to bear a firearm and the right to ‘vote for himself as a candidate' due to ‘his previous conditions of Thirteenth Amendment Slavery.'” Smith, Case No. 08-cv-956, 2009 WL 2591624, *2 (E.D. Wis.). Judge J. P. Stadtmueller explained to the plaintiff that the Constitution does not prevent the federal or state governments from limiting a convicted felon's civil rights, including the right to carry a firearm the right to vote and the right to hold public office. Id. (citing Dist. of Columbia v. Heller, 554 U.S. 570, 626-627 (2008); Richardson v. Ramirez, 418 U.S. 24, 56 (1974); and Romer v. Evans, 517 U.S. 620, 624 (1996)). Judge Stadtmueller pointed out that “[t]hese limitations on one's rights as a citizen are well-recognized collateral consequences of a felony conviction, and the constitutionality of those longstanding consequences are not legitimately disputed.” Id.

         In the third case, the plaintiff sued the United States Congress, the President of the United States, the governor of Wisconsin, the mayor of Milwaukee and the Social Security Administration. Smith v. United States Congress, Case No. 13-cv-206, Dkt. No. 1. He alleged that the Social Security Administration had refused to allow him to participate in a program due to racism, and argued that he was being denied a laundry list of constitutional rights “based on a pattern and practice of Racism directed against him as a descendent of the slaves described by United States Supreme Court Chief Justice Taney in Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 15 L.Ed. 691.” Id. at Dkt. No. 1. Judge Charles N. Clevert, Jr. dismissed all the defendants except the Social Security Administration, noting that the plaintiff had made no specific allegations against any of the other defendants. Id. at Dkt. No. 20. Subsequently, when the plaintiff failed to amend his complaint as to the Social Security Administration, the court dismissed the entire case as frivolous. Id. at Dkt. No. 29.

         Despite these decisions, the plaintiff filed a fourth case in 2017, again naming the United States of America and the State of Wisconsin (the defendants Judge Randa had told him were not appropriate parties), alleging that he was being denied a long list of constitutional rights because of his status as a descendant of slaves. Smith v. United States, Case No. 17-cv-1419. Magistrate Judge David Jones dismissed this case for lack of subject-matter jurisdiction (as to the State of Wisconsin) and for failure to state a claim, reiterating the rulings of the prior judges and going into more detail about some of the plaintiff's specific allegations not addressed by the other judges. Id. at Dkt. No. 16.

         The plaintiff filed this case in 2018. This is the second time the plaintiff has named the United States Congress as a defendant, and the first time he has named the Wisconsin Legislature.

         1. Dismissal of the ...


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