Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

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 DENYING AS MOOT UNITED STATES CONGRESS'S MOTION TO CONSOLIDATE (DKT. NO. 5(I)), GRANTING MOTION TO DISMISS UNITED STATES CONGRESS AS A DEFENDANT (DKT. NO. 5(II)), GRANTING IN PART UNITED STATES CONGRESS'S MOTION FOR AN ORDER PRECLUDING PLAINTIFF FROM INITIATING FURTHER PRO SE SUITS (DKT. NO. 5(III)) AND DISMISSING CASE

          HON. PAMELA PEPPER, CHIEF UNITED STATES DISTRICT JUDGE.

         On July 15, 2019, the plaintiff, representing himself, filed a civil rights complaint against the United States Congress and the Wisconsin Legislature. Dkt. No. 1. He alleged that his 1990 conviction for threatening the life of a federal judge subjected him to unconstitutional slavery or involuntary servitude in violation of the Thirteenth Amendment, because he is the descendant of slaves. Id. at 1. He alleged that he completed serving his term of “Thirteenth Amendment enslavement” long ago and that he is entitled to “complete restoration of his citizenship.” Id. at 2. The complaint alleged that the defendants have deprived him of various constitutional rights, including his right to be free from slavery under the Thirteenth Amendment, his Second Amendment right to keep and bear arms and his Fifteenth Amendment right “to vote for the free person of his choice for elected office.” Id. The complaint alleged that the defendants “have enacted unconstitutional laws to conceal that they have denied plaintiff's citizenship rights except such as those which they choose to grant him.” Id. It also alleged that the defendants acted “against plaintiff's citizenship rights under the Dred Scott case.” Id. As relief, the plaintiff “demands his full and unabridged United States of America Citizenship rights be immediately restored.” Id.

         One of the defendants, the United States Congress, filed a motion to consolidate cases, to dismiss and to preclude the plaintiff from initiating further pro se suits. Dkt. No. 5. The motion asks the court to consolidate this case with Smith v. U.S. Congress, No. 18-cv-988 and Smith v. U.S. Congress, No. 19-cv-671. Id. at 6. It also asks the court to bar the plaintiff from filing any further cases, given his history of litigation on the claims he raised in the complaint.

         The court will deny as moot the United States Congress's motion to consolidate cases, because in separate orders it already has dismissed the two cases to which the motion refers. The court will grant the motion to dismiss the United States Congress as a defendant. The court also will grant in part the United States Congress's request to bar the plaintiff from filing further cases.

         The other defendant, the Wisconsin Legislature, has not appeared. Because the court finds that the plaintiff's claims against the legislature are obviously frivolous, the court will dismiss those claims sua sponte for lack of subject-matter jurisdiction.

         I. Litigation History

         The plaintiff's history of litigation in this district dates back more than thirty years. In 1987, he filed a housing discrimination lawsuit, Smith v. National Corp., No. 87-cv-1300. United States District Judge John Reynolds dismissed that lawsuit, and denied the plaintiff's motion to reconsider on October 9, 1989. Id. at Dkt. No. 101.

[A]t 2:20 a.m. on December 29, 1989, Arthur Roby, a Security Complaint Assistant for the Milwaukee office of the FBI, received a telephone call from [the plaintiff]. [The plaintiff] threatened to kill Judge Reynolds in the morning at the courthouse with a 16th century Jewish sword. [The plaintiff] said that he was angry with Judge Reynolds for dismissing his suit, and he provided his address. [The plaintiff] also indicated that he was calling to warn the FBI so that it could stop him.

United States v. Smith, No. 90-2368, 1991 WL 36269, at *1 (7th Cir. March 18, 1991). A jury convicted the plaintiff of threatening the life of a federal judge in violation of 18 U.S.C. §115(a)(1)(B), and Judge J. P. Stadtmueller sentenced him to serve a twelve-month sentence in custody followed by four years of supervised release (later reduced to three years). Id. The Seventh Circuit affirmed the conviction and sentence. Id. at *4.

         In the last eleven and a half years, courts in this district have dismissed six 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, No. 08-cv-262; Smith v. President of the United States, No. 08-cv-956; Smith v. United States Congress, No. 13-cv-206; Smith v. United States, No. 17-cv- 1419; Smith v. United States Congress, No. 18-cv-988; Smith v. United States Congress, No. 19-cv-671.

         In the first case, Smith v. United States, 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, 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, No. 13-cv-206. 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, 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 his fifth case in 2018, again suing the United States of America and the State of Wisconsin. Smith v. United States Congress, No. 18-cv-988. Just under two weeks after he filed the complaint, he amended it, naming the United States Congress and the Wisconsin Legislature as defendants. Id. at Dkt. No. 3. In the amended complaint, the plaintiff argued that the Commerce Clause to the United States Constitution did not authorize Congress to regulate his right to have a firearm, and that “Amendment 3(2)(3)” of the Wisconsin Constitution unconstitutionally barred him from running for office. Id. at Dkt. No. 3. The amended complaint consisted of only two paragraphs.

         The United States Congress filed a motion to dismiss, id. at dkt. no. 6; the Wisconsin Legislature did not. Judge Joseph granted the Congress's motion to dismiss the amended complaint. Id. at Dkt. No. 15. The plaintiff appealed. Id. at Dkt. No. 17. The Seventh Circuit dismissed the appeal, stating that Judge Joseph did not have the authority to dismiss the case as to both defendants because the Wisconsin Legislature had not consented to her authority to issue a final decision. Id. at Dkt. No. 24. Accordingly, Judge Joseph vacated her order, and issued a report recommending that this court dismiss the case. Id. at Dkt. No. 25. She also recommended that this court deny the plaintiff's motion to file a second amended complaint (id. at dkt. no. 21), which he filed after Judge Joseph had dismissed his original complaint. This court has issued an order dismissing No. 18-cv-988 and adopting Judge Joseph's recommendation to deny the plaintiff's motion for leave to file a second amended complaint in that case.

         The plaintiff filed the sixth case in May of this year, again suing the United States Congress and the Wisconsin Legislature. Smith v. United States Congress, No. 19-cv-671. The allegations in that complaint were identical to the allegations he sought to bring in the proposed second amended complaint in the 2018 case-that the federal and state statutes prohibiting felons from possessing firearms constituted unconstitutional bills of attainder under Article I, §9, Clause 3 of the U.S. Constitution, as did the provision of the Wisconsin Constitution that prohibits felons from holding elected office unless pardoned, and that Wisconsin's prohibition on his right to vote violated the Fifteenth and Thirteenth Amendments. Id. at Dkt. No. 1. Both the United States Congress and the Wisconsin Legislature filed motions to dismiss. The court has issued an order dismissing that case for failure to state a claim.

         II. The Current Complaint

         The claims the plaintiff has raised in this seventh complaint are not new. Other judges have ruled on them, and this court has ruled on them. He asserts that his conviction and sentencing for threatening Judge Reynolds constituted a violation of the Thirteenth Amendment's prohibition against slavery and involuntary servitude. He alleges that because he finished serving that sentence a long time ago, he is entitled to the restoration of all his civil rights (including his right to keep and bear arms under the Second Amendment and his rights under the Fifteenth Amendment). Finally, he appears to assert that these alleged deprivations of his rights violate the Supreme Court's decision in Dred Scott v. Sanford, 60 U.S. 393 (1857).

         III. The United States Congress's Motion to Dismiss

         The United States Congress argues that the court should dismiss the complaint because the United States Congress did not waive its sovereign immunity, dkt. no. 5 at 7, and because it fails to state a claim upon which this court may grant relief, id. at 7-8. The Congress appears to acknowledge that it is not the only defendant named in the complaint. id. at 8 n.4 (asserting that the plaintiff's challenge to the Wisconsin law prohibiting felons from running for elected office “is a claim directed at the State of Wisconsin, rather than the U.S. Congress”). The court assumes that the United States Congress is asking the court to dismiss it as a defendant, and is not seeking dismissal on behalf of the Wisconsin Legislature.

         A. Sover ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.