United States District Court, E.D. Wisconsin
BARRY J. SMITH, SR., Plaintiff,
THE UNITED STATES CONGRESS, and WISCONSIN LEGISLATURE, Defendants.
ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS
(DKT. NOS. 5, 10(II), 12(II)), DENYING AS MOOT UNITED STATES
CONGRESS'S MOTIONS TO CONSOLIDATE CASES (DKT. NOS. 10(I),
12(I)); DENYING WITHOUT PREJUDICE UNITED STATES
CONGRESS'S MOTIONS TO BAR PLAINTIFF FROM FURTHER FILINGS
(DKT. NOS. 10(III), 12(III)) AND DISMISSING CASE
PAMELA PEPPER, CHIEF UNITED STATES DISTRICT JUDGE.
5, 2019, the plaintiff, who is representing himself, filed a
complaint against the United States Congress and the
Wisconsin Legislature, alleging that the federal and state
statutes criminalizing possession of firearms by felons and
the portion of the Wisconsin Constitution that prohibits
felons from holding elected office unless pardoned constitute
bills of attainder that violate Article I, §9, Clause 3
of the United States Constitution. Dkt. No. 1 at 1-3. The
Wisconsin legislature filed a motion to dismiss, as did the
United States Congress. Dkt. Nos. 5, 10. The motion from the
United States Congress also asked the court to consolidate
this case with a case the plaintiff had filed in 2018,
Smith v. United States Congress, No. 18-cv-988, and
to bar the plaintiff from filing any further pro se
lawsuits. Dkt. No. 10. Two and a half months later, the
United States Congress filed another motion to dismiss,
consolidate and bar the plaintiff; this motion was identical
to the previous motion except that it asked the court to
consolidate this case with the 2018 case and a case the
plaintiff filed after he filed this one (Smith
v. United States Congress, No. 19-cv-1001). Dkt. No. 12.
court will grant the motions to dismiss, deny as moot the
United States Congress's motions to consolidate, and deny
without prejudice the United States Congress's motions to
bar (it will rule on these motions in its order in No.
Motions to Dismiss (Dkt. Nos. 5, 10(II), 12(II))
Standard of Review
motion to dismiss under Federal Rule of Civil Procedure
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
last eleven and a half years, courts in this district have
dismissed five 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.
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 (E.D. Wis.). 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.
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 at Dkt. No. 1. 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. Smith v. United
States Congress, No. 18-cv-988. In the amended complaint
in that case, 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. Judge Joseph dismissed the amended
complaint, id. at dkt. no. 15; after vacating that
order on remand from the Seventh Circuit, she issued a
recommendation that this court dismiss the case, id.
at dkt. no. 25. She also ...