Smith v. Arguello , 415 F. App'x 57 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 15, 2011
FOR THE TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
KENNETH L. SMITH,
Plaintiff-Appellant,
v. No. 10-1280
(D.C. No. 1:09-CV-02589-PAB)
HONORABLE CHRISTINE M. (D. Colo.)
ARGUELLO; STEPHEN H.
ANDERSON; BOBBY R. BALDOCK;
JAMES E. BARRETT; ROBERT E.
BLACKBURN; MARY BECK
BRISCOE; WILLIAM J.
HOLLOWAY, JR.; MARCIA S.
KRIEGER; EDWARD W.
NOTTINGHAM; JOHN C.
PORFILIO; STEPHANIE K.
SEYMOUR; DEANELL REECE
TACHA; TERRY FOX; STEPHEN J.
SORENSON, JOHN/JANE DOES
1-50, in their personal capacities only;
LLOYD CLARK; ERIC H. HOLDER,
JR.; DAVID GAOUETTE;
JEANETTE SWENT; EDWARD
ZAHREN, JOHN/JANE DOES 51-99,
in their official capacities only, as
representatives of; UNITED STATES
DEPARTMENT OF JUSTICE,
Defendants-Appellees.
ORDER AND JUDGMENT *
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
(continued...)
Before MURPHY, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
HOLMES, Circuit Judge.
Since 2003, Kenneth L. Smith has been filing unsuccessful cases and
appeals in federal court, all of which “can be traced to the Colorado Supreme
Court’s denial of his application for admission to the Colorado bar after he
refused to submit to a mental status examination.” Smith v. Krieger,
389 F. App’x 789, 791 (10th Cir. 2010), petition for cert. filed (U.S. Dec. 21,
2010) (No. 10-837). 1 The present appeal concerns the dismissal of claims brought
under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,
*
(...continued)
therefore ordered submitted without oral argument and Mr. Smith’s “demand” for
oral argument is denied. This order and judgment is not binding precedent, except
under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P.
32.1 and 10th Cir. R. 32.1.
1
See Smith, 389 F. App’x at 795-97, 799 (affirming dismissal of claims that
challenged federal judges’ decisions, sought removal of judges, and attempted
prosecution of crimes allegedly committed by judges and also affirming district-
court filing restrictions); see also Smith v. Thomas, 383 F. App’x 8, 8 (D.C. Cir.
2010) (denying request for mandamus relief compelling the United States
Supreme Court to grant certiorari petitions); Smith v. Bender, 350 F. App’x 190,
195 (10th Cir. 2009) (affirming dismissal of action against Justices of the
Colorado Supreme Court and other governmental officials and denial of motion to
recuse district judge); Smith v. U.S. Court of Appeals, 484 F.3d 1281, 1286-87
(10th Cir. 2007) (holding that Mr. Smith lacked standing to challenge use of
non-precedential unpublished decisions to dispose of appeals and denying
mandamus relief); Smith v. Mullarkey, 67 F. App’x 535, 538 (10th Cir. 2003)
(determining that federal court lacked jurisdiction to consider denial of
Mr. Smith’s bar application).
-2-
403 U.S. 388, 395-96 (1971), against current and former federal district and
circuit judges, the United States Attorney General, employees of the United States
Marshal Service; members of the United States Attorney’s Offices for the
Districts of Colorado and Utah; and numerous Jane and John Does. The case is
another milestone along his well-trod “futile path.” Krieger, 389 F. App’x at 800.
We affirm the order of the district court dismissing the matter with prejudice.2
I.
For his complaint in this case, Mr. Smith set forth two claims. First, he
asserted that the prior decisions against him were so wrong-headed that they
amounted to violations of his constitutional rights and criminal conduct on the
part of the named judges. He theorized that “if [an] absurd decision is permitted
to stand, there is no difference between [a judge] and Saddam Hussein, and that
we as citizens have both a legal right and a moral duty to assassinate our federal
judges.” R. at 42. Mr. Smith’s view is that federal judges have become “tyrants,”
id. at 64, and “[t]he legal and moral right to kill a tyrant is as old as Anglo-
American society itself,” id. at 60 (footnote omitted). “As judges have become a
law unto themselves, they have abandoned any protections they might otherwise
2
After Mr. Smith filed this appeal, we resolved an earlier appeal and also
imposed filing restrictions to deter his frivolous pro se appeals and increasingly
“‘abusive and disrespectful litigation practices.’” Krieger, 389 F. App’x at
800-801 (quoting Bender, 350 F. App’x at 195). Accordingly, any future pro se
filings by Mr. Smith will be subject to those filing restrictions.
-3-
enjoy under law and the lowly citizen . . . is legally entitled to use lethal force
against them, as the law can provide no shelter against the gales of their unbridled
tyranny.” Id. at 65.
Similar rhetoric in Mr. Smith’s previous cases led to the facts underlying
his second claim. His complaint stated that United States Marshals came to his
home and informed him that “he was placed on a ‘threat list,’” causing him to feel
“threatened, oppressed, and intimidated.” Id. at 43. Later, “when [he] attempted
to enter the . . . Courthouse for the lawful purpose of filing documents, [he] was
detained and then, escorted to the file room by a United States Marshal.” Id. at
69. This treatment “humiliated and intimidated” him. Id. He alleged that the
actions of the marshals and the district judges restricted his rights of free speech
and access to the courts.
For several reasons, the district court dismissed both of Mr. Smith’s Bivens
claims against all defendants. Because the judges were sued for their legal
decisions in previous suits, they were entitled to absolute judicial immunity. See
Whitesel v. Sengenberger, 222 F.3d 861, 867 (10th Cir. 2000) (summarizing the
basis for the application of judicial immunity even in instances in which the
judge’s action “was in error, was done maliciously, or was in excess of his
authority”) (quotation omitted). And the named Assistant United States
Attorneys, who represented defendants in Mr. Smith’s previous suits, were not
linked to a deprivation of his constitutional rights. See Robbins v. Oklahoma,
-4-
519 F.3d 1242, 1250 (10th Cir. 2008) (stating that a “complaint’s use of . . . a list
of defendants named . . . with no distinction as to what acts are attributable to
whom, [makes it] impossible for any of these individuals to ascertain what
particular unconstitutional acts they are alleged to have committed”).
Moreover, the Department of Justice officials were named in their official
capacities, and a Bivens action only “lies against [a] federal official in his
individual capacity.” Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1231
(10th Cir. 2005). Further, the complaint failed to plead that each of these
defendants violated the Constitution through their “own individual actions.”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009).
As a final matter, the district court succinctly disposed of any claim arising
from the marshals’ interactions with Mr. Smith. Most importantly, the court’s
order stated “[a]ny implied argument that the First Amendment prevents the U.S.
Marshals Service from informing [Mr. Smith that he was on a threat list] or
investigating a threatening statement made to a federal judge is meritless.” R. at
222. What is more, the complaint allegations did not “suggest that being put on a
threat list or being escorted to the clerk’s office ‘would chill a person of ordinary
firmness’ in the exercise of constitutionally protected speech.” Id. at 223
(quoting Smith v. Plati, 258 F.3d 1167, 1177 (10th Cir. 2001)). In any event,
none of the alleged conduct prevented Mr. Smith from filing his submissions or
-5-
“expressing himself in such pleadings, as the present lawsuit aptly demonstrates.”
R. at 223.
Concluding that Mr. Smith’s complaint failed to state a claim upon which
relief could be granted, the district court dismissed the matter. The court entered
the dismissal with prejudice and without leave to amend because “there [was] no
reason to believe that plaintiff will be able to allege facts to support a viable legal
claim.” Id. at 224; see Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219
(10th Cir. 2006) (“A dismissal with prejudice is appropriate where a complaint
fails to state a claim under Rule 12(b)(6) and granting leave to amend would be
futile.”).
II.
We call Mr. Smith’s attention to the filing restrictions and $3,000 sanction
imposed in Krieger, 389 F. App’x at 800-801, for “persist[ence] in making
unsupported allegations of judicial corruption, baseless claims, and personal
attacks on federal and state-court judges.” See also Order, No. 09-1503 (10th Cir.
Aug. 11, 2010) (concluding that Mr. Smith had failed to show cause why the
monetary sanction should not be imposed). We are disquieted by his continued
use of “vulgar language, threats of lethal violence against judges rendering
decisions he considers tyrannical, and tirades on a number of irrelevant topics.”
Krieger, 389 F. App’x at 800. Under certain circumstances, a party may forfeit
his right to appellant review by making such statements. See Garrett v. Selby
-6-
Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (stating that the
“scurrilous tone” of appellant’s briefs and lack of substantive argument convinced
the court “to refrain from exercising any discretion [it] may have to delve for
substance in a pro se pleading”).
Nevertheless, we review de novo the dismissal of Mr. Smith’s case for
failure to state a claim. See Howard v. Waide, 534 F.3d 1227, 1242-43 (10th Cir.
2008). On appeal, Mr. Smith asks this court to renounce firmly established law:
the doctrines of judicial immunity, and issue and claim preclusion, as well as
procedural rules permitting the disposition of a civil case without a jury trial. We
reject Mr. Smith’s request. For substantially the same reasons relied upon by the
district court, we AFFIRM the dismissal of Mr. Smith’s complaint for failure to
state a claim. We also conclude that the district court properly entered the
dismissal with prejudice.
Entered for the Court
Jerome A. Holmes
Circuit Judge
-7-