United States District Court, E.D. Wisconsin
BARRY J. SMITH, SR., Plaintiff,
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
PAMELA PEPPER, CHIEF UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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
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.
[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
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.
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.
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.
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.
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.
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.
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.
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.
The Current Complaint
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).
The United States Congress's Motion to Dismiss
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