United States District Court, E.D. Wisconsin
BARRY J. SMITH, SR., Plaintiff,
UNITED STATES CONGRESS, and WISCONSIN LEGISLATURE, Defendants.
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
PAMELA PEPPER CHIEF UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
United States Congress also has filed motions asking the
court to consolidate this case with two cases the plaintiff
filed in 2019,  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.
Judge Joseph's Recommendation to Dismiss Case
Standard of Review
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.
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).
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.
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.
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.
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.
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.
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
Dismissal of the ...