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Smith v. Scalia

United States District Court, D. Columbia.

May 26, 2014

KENNETH L. SMITH, Plaintiff,
HONS. ANTONIN G. SCALIA, et al., Defendants

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Kenneth L. Smith, Plaintiff, Pro se, Golden, CO.

For Antonin Scalia, Clarence Thomas, John G. Roberts, Jr., Stephen H. Anderson, Bobby R. Baldock, Mary Beck Briscoe, Wade Brorby, William Judson Holloway, Jr., Jerome A. Holmes, Michael R. Murphy, John Carbone Porfilio, Stephanie Kulp Seymour, Deanelle Reece Tacha, Defendants: Mitchell P. Zeff, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.

For Janice Rogers Brown, Judith W. Rogers, David B. Sentelle, John D. Bates, Christine M. Arguello, Robert E. Blackburn, Philip A. Brimmer, Marcia S. Krieger, Edward W. Nottingham, John/Jane Doe, 1 - 99, United States of America, Robert Hugh Mcwilliams, Jr., Defendants: Jason Daniel Medinger, LEAD ATTORNEY, OFFICE OF THE U.S. ATTORNEY FOR THE DISTRICT OF MARYLAND, Baltimore, MD.

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KETANJI BROWN JACKSON, United States District Judge.

In the year 2000, the Colorado Supreme Court denied Plaintiff Kenneth L. Smith's (" Smith's" or " Plaintiff's" ) application for membership to the Colorado bar after Smith refused to submit to a mental status examination. Following that denial and for the next nine years, Smith filed a series of lawsuits against the justices of the Colorado Supreme Court and against various state and federal judges who ruled against him in subsequent actions stemming from the adjudication of his bar application. The instant amended complaint, which Smith has filed pro se against the United States and 19 federal judges (collectively, " Defendants" ), marks the eleventh lawsuit that Smith has filed stemming from the denial of his admission to the Colorado bar. (Amended Compl. (" Compl." ), ECF No. 8.) In the instant 277-page pleading, Smith generally maintains that the judges involved in his latest lawsuit, like those who decided all of his previous actions, have violated the Constitution and international law, and are therefore

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subject to criminal indictment and removal from the federal bench. ( See id. ¶ ¶ 601-617.)

Before this Court at present are two motions to dismiss the amended complaint. (ECF Nos. 36, 37.)[1] In their motions, Defendants contend that the complaint must be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and also pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted. ( See Mem. in Supp. of Mot. to Dismiss of the D.C. Court Defs. (" D.C. Defs.' Mem." ), ECF No. 36-1, at 3, 10-22; Non-D.C. Defs.' Mot. & Mem. of Law in Supp. of Mot. to Dismiss (" Non-D.C. Defs.' Mot." ), ECF No. 37, at 14-23.)[2] In particular, Defendants argue that absolute and sovereign immunity bar Smith's claims; that no cause of action exists for several of the claims Smith alleges; and that, in any event, certain of Smith's claims are entirely precluded by both res judicata and issue preclusion because the complaint raises claims that previous courts have already heard and rejected. (D.C. Defs.' Mem. at 10-22; Non-D.C. Defs.' Mot. at 14-23.) Additionally, Defendants ask the Court to impose a pre-filing injunction against Smith in order to bar him from initiating any new pro se actions in this Court without first obtaining leave to file. (D.C. Defs.' Mot. ¶ 10; Non-D.C. Defs.' Mot. at 6.) The Non-D.C. Defendants-- i.e., the United States and the individual defendant judges who are not appointed to the United States courts for the District of Columbia--also seek monetary sanctions. (Non-D.C. Defs.' Mot. at 6.)

Having considered Plaintiff's complaint and Defendants' arguments for dismissal, this Court concludes (1) that sovereign immunity deprives the Court of jurisdiction over Smith's claim for damages against the United States and the individual judge defendants (to the extent that the individual judges have been sued in their official capacity), (2) that absolute judicial immunity bars the claims against the individual judge defendants in their personal capacity, and (3) that there is no cause of action available for the non-monetary relief that Smith seeks. Accordingly, Defendants' motions to dismiss will be GRANTED and the instant complaint will be dismissed with prejudice. Additionally, in light of the fact that Smith has now initiated eleven separate actions seeking relief for the denial of his bar license, Smith will be ENJOINED from filing any subsequent actions in the U.S. District Court for the District of Columbia arising out of the same allegations in the instant amended complaint without first seeking leave of court. A separate order consistent with this opinion will follow.


A. History Of Prior Litigation

As noted, between 2000 and 2009, Plaintiff Smith filed ten lawsuits that relate to

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the denial of his admission to the Colorado bar.[3] A detailed substantive and procedural history of many of Smith's earlier cases is described in the Tenth Circuit's consolidated appeal of three such cases, and will not be repeated here. See Smith v. Krieger, 389 F.App'x 789, 792-93 (10th Cir. 2010). In short, after the Colorado Supreme Court denied his application for bar membership, Smith brought suit against the Colorado Supreme Court justices in federal court in the District of Colorado and in Colorado State court seeking to overturn that decision. See id. at 791. The U.S. District Court in the District of Colorado dismissed the complaint; the Tenth Circuit affirmed the dismissal on appeal; and the Supreme Court of the United States denied certiorari. See id. at 791-92, 799-800. Smith then filed suit against the judge on the U.S. District Court for the District of Colorado who decided the matter, and each of the Tenth Circuit judges and Supreme Court justices who were involved in upholding the dismissal decision. See id. This pattern repeated itself in Colorado district court eight more times--in effect, each time a court rendered an opinion unfavorable to Smith, he responded by filing a new lawsuit naming the authors of the prior judicial opinions as defendants and alleging that those judges, too, had violated his constitutional rights. See id. at 791-92. Moreover, in several of the cases, Smith specifically requested that the federal judges who ruled against him be removed from the bench " due to their alleged failure to maintain the 'good Behaviour' required for continued tenure under Article III," and he also claimed an alleged right to prosecute the defendant judges pursuant to authority he maintains is vested in him under the Ninth and Tenth Amendments, id. at 796--claims that Smith brings again now. In addition, Smith's sole attempt to bring suit in Colorado state court fared no better: the Denver County District Court dismissed the case on the grounds that it lacked jurisdiction to consider challenges to the state supreme court's decisions regarding bar admission; the Colorado Supreme Court affirmed dismissal; and the Supreme Court denied certiorari. See Smith III, 121 P.3d 890, 891 (Colo. 2005), cert. denied, 547 U.S. 1071, 126 S.Ct. 1792, 164 L.Ed.2d 519(2006).

Eventually, the U.S. District Court for the District of Colorado put an end to the filings in that jurisdiction: at the same time that it dismissed Smith's seventh lawsuit (the eighth and ninth lawsuits in Colorado federal court were still pending), the court imposed a pre-filing injunction barring Smith from filing future actions in that court without first meeting certain requirements. Smith VII, No. 09-1018, 2009 WL 4035902, at *3-4 (D. Colo. Nov. 19, 2009)(" Smith will not be permitted to file new actions in this Court without the representation of a licensed attorney admitted to practice in the District of Colorado. The requirement that he have such counsel will be lifted only if he has obtained permission from this Court to proceed pro se." ). The court

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based the injunction on the number of suits Smith had filed stemming from the same facts (his denial of admission to the Colorado Bar); Smith's " penchant for making duplicative arguments" ; and the " increasingly abusive" tone of his filings. [WL] at *4.[4] The court also reasoned that " [t]here [would] be no end if plaintiff is permitted to continue filing actions that argue that a failure to receive his desired outcome in a lawsuit is grounds for filing yet another." Id.

At some point after the pre-filing injunction was entered, the Tenth Circuit consolidated Smith's sixth, seventh, and eighth lawsuits on appeal, and affirmed the dismissal of each case. Smith v. Krieger, 389 F.App'x at 792-93. The Supreme Court then denied certiorari. 131 S.Ct. 1511, 179 L.Ed.2d 307 (2011). In addition, even before the Colorado district court had issued rulings with respect to the sixth, seventh, and eighth lawsuits, Smith filed a ninth lawsuit there, naming as defendants the judges who presided over his prior cases and the government attorneys who had opposed those previous actions. Smith IX, No. 09-2589, (D. Colo.). The district court dismissed lawsuit number nine due to the judicial defendants' absolute immunity and Smith's failure to state a claim with respect to the government attorney defendants. Smith IX, No. 09-2589, 2010 WL 1781937, at *2-3. The Tenth Circuit affirmed dismissal, 415 F.App'x 57 (10th Cir. 2011), and the Supreme Court denied certiorari once again, 132 S.Ct. 113, 181 L.Ed.2d 38 (2011).

Undaunted, Smith filed a tenth lawsuit--this time, in the U.S. District Court for the District of Columbia, presumably as a result of the pre-filing injunction in Colorado--seeking to overturn the Supreme Court's denial of certiorari in the consolidated appeal in the Tenth Circuit. A judge in this district dismissed that case; the D.C. Circuit affirmed the dismissal on appeal; and the Supreme Court denied certiorari for that lawsuit as well. Smith X, 2010 WL 253822, at *1 (D.D.C. Jan. 21, 2010), aff'd, 383 F.App'x 8 (D.C. Cir. 2010); see also 131 S.Ct. 1614, 179 L.Ed.2d 496 (2011).

B. Procedural History Of This Case

Smith has now filed his eleventh complaint, which is also his second in this district.[5] Like its predecessors, the instant complaint seeks, at bottom, to remedy the Colorado Supreme Court's allegedly wrongful decision to deny Smith membership to the Colorado bar. In addition, as set forth over the course of hundreds of pages, Smith now challenges the actions of all of the judges and justices involved in the dismissal of his earlier cases, recounting

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in great detail the procedural history of those prior actions and repeatedly insisting that all Defendants have egregiously misused their authority. The instant amended complaint also includes facts that pertain to the dismissal of Smith X, the first action Smith filed in this district. Specifically, the amended complaint asserts that the Smith X district court judge's dismissal constituted misconduct, and so did the actions of the D.C. Circuit court judges who affirmed that dismissal determination. ( See Compl. ¶ ¶ 70-84.) Smith also alleges that the Supreme Court justices engaged in misconduct when they recused themselves from consideration of his petition for certiorari in regard to Smith X because they had been named as defendants in the case; their recusal necessarily meant certiorari was denied. ( See id. ¶ ¶ 85-87.)[6]

The instant complaint includes six distinct claims for relief. First, Smith seeks to enforce Article III's " Good Behavior" clause by removing from the federal bench all of the individual judges who are named as defendants (" Count I" ). ( Id. ¶ ¶ 601-605.) Second, Smith seeks an order permitting him to proceed as a private attorney general to impanel a grand jury and to initiate criminal prosecution against the named individual judges pursuant to the Ninth and Tenth Amendments (" Count II" ). ( Id. ¶ ¶ 611-617.) Smith also brings several constitutional claims for damages against all Defendants based on the individual judge defendants' alleged failure to provide due process of law in violation of Smith's Fifth and Fourteenth Amendment rights (Count III) ( id. ¶ ¶ 621- 629), and also their alleged denial of access to the courts in violation of Smith's First and Fourteenth Amendment Rights (Count IV) ( id. ¶ ¶ 630). Similarly, Smith alleges that the defendant judges of the Courts of Appeal in the Tenth Circuit and the D.C. Circuit are liable for the alleged constitutional deprivations of the defendant judges of their respective district courts under a theory of supervisory liability (Count V). ( Id. ¶ ¶ 638-644.) Finally, Smith argues that the United States is liable for the judges' various deprivations pursuant to " jus cogens international law and/or inherent limits of its own sovereignty" for failure to prevent the above-described constitutional violations (Count VI). ( Id. ¶ ¶ 645-652.)[7]

Defendants have filed two motions to dismiss, on behalf of two different groups of defendants, arguing that this Court lacks jurisdiction on sovereign immunity grounds, that res judicata and collateral

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estoppel principles bar Smith's claims, and that the instant complaint fails to state a claim upon which relief can be granted because no cause of action is available for certain claims. ( See D.C. Defs.' Mem. at 2-3; Non-D.C. Defs.' Mot. at 14.) In his opposition to Defendants' motions, Smith generally maintains that none of these principles apply. In Plaintiff's view, sovereign immunity is unconstitutional and lacks foundation in law; there are clear reasons why absolute immunity, res judicata, and collateral estoppel do not apply; and the Constitution and international law create cognizable causes of action that sufficiently state a claim upon which relief can be granted. He also argues that a judicial opinion that dismisses a case or renders judgment in favor of a defendant is itself unconstitutional where, as here, the plaintiff has made a demand for a jury trial. ( See Pl.'s Resp. in Opp'n to Non-D.C. Defs.' Mot. to Dismiss (" Opp'n I" ), ECF No. 41, at 5-8.)

After the motions to dismiss were fully briefed, Smith filed a motion that seeks the immediate removal of the D.C. Defendants (Second Emergency Mot. for Immediate Removal of D.C. Defs., ECF No. 39), as well as a motion seeking oral argument on all pending motions. (Mot. for Oral Arg. on Pending Mots., ECF No. 47.) These motions--which reassert many of the arguments that Smith made ...

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