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Smith v. The United States Congress

United States District Court, E.D. Wisconsin

November 14, 2019

BARRY J. SMITH, SR., Plaintiff,
v.
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

          HON. PAMELA PEPPER, CHIEF UNITED STATES DISTRICT JUDGE.

         On May 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.

         The 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. 19-cv-1001).

         I. Motions to Dismiss (Dkt. Nos. 5, 10(II), 12(II))

         A. Standard of Review

         A 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 omitted).

         B. Analysis

         1. Litigation history

         In the 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.[1]

         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 (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. 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 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.

         The 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 ...


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