SMITH v. SCALIA et al
MEMORANDUM OPINION granting Defendants' motions to dismiss. Signed by Judge Ketanji Brown Jackson on 5/26/2014. (lckbj3)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KENNETH L. SMITH,
HONS. ANTONIN G. SCALIA, et al., )
Civil Action No. 13-CV-0298 (KBJ)
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
subject to criminal indictment and removal from the federal bench. (See id. ¶¶ 601617.)
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 NonD.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.)
The two motions were submitted by two different groups of defendants in this matter, each of which is
represented by separate counsel. One motion and supporting memorandum was filed on behalf of the
judges from the D.C. Circuit and D.C. District Court (the “D.C. Defendants”). (See Mot. to Dismiss of
the D.C. Ct. Defs. (“D.C. Defs.’ Mot.”), ECF No. 36.) The other motion and memorandum was filed on
behalf of all the other judges and justices named in the complaint and also the United States (the “NonD.C. Defendants”). (See Fed. Judicial Defs.’ Mot. to Dismiss (“Non-D.C. Defs.’ Mot.”), ECF No. 36.)
Smith has responded to each motion in turn. (See Resp. in Opp’n to Non-D.C. Defs.’ Mot. to Dismiss
(“Opp’n I”), ECF No. 41; Resp. in Opp’n to D.C. Defs.’ Mot. to Dismiss (“Opp’n II”), ECF No. 43.)
Page numbers throughout refer to the number assigned by the Court’s electronic filing system.
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
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
See Smith v. Mullarkey, No. 00-2225 (D. Colo.) (Smith I); Smith v. Mullarkey, 121 P.3d 890, 891
(Colo. 2005) (Smith II); Smith v. The Tenth Circuit, No. 04-1222 (D. Colo.) (Smith III); Smith v.
Mullarkey, No. 04-1223 (D. Colo.) (Smith IV); Smith v. Bender, No. 07-1924 (D. Colo.) (Smith V);
Smith v. Ebel, No. 08-0251 (D. Colo.), later restyled as Smith v. Krieger, 643 F. Supp. 2d 1274 (D.
Colo. 2009) (Smith VI); Smith v. Anderson, No. 09-1018 (D. Colo.) (Smith VII); Smith v. Eid, No. 100078 (D. Colo.) (Smith VIII); Smith v. Arguello, No. 09-2589 (D. Colo.) (Smith IX); Smith v. Thomas,
No. 09-1926 (D.D.C.) (Smith X). Each of these cases was dismissed, and the federal judges involved in
these dismissed cases are now named as defendants in this action.
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 79192, 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(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 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. Id. 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 (2011). In addition, even before the Colorado
Plaintiff’s prior complaints, like the one at issue here, contained “abusive language” that, among other
things, accused the judicial defendants of “tyranny,” and “suggest[ed] that violence against federal
judges may be justified[.]” Smith VII, 2009 WL 4035902, at *4; see also Smith v. Krieger, 389 F.
App’x at 800 (noting that Plaintiff’s “briefs contain vulgar language, threats of lethal violence against
judges[,]” and “personal attacks” on judges).
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 (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 (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
Notably, Smith has since filed another lawsuit in this district. After filing the instant complaint, and
prior to the Defendants’ responsive pleadings, Smith filed a twelfth action, which came before this
Court as a related case. Smith v. Tacha, No. 13-1610 (D.D.C.) (Smith XII). As Smith made clear in
that complaint, the allegations in Smith XII were “quite literally identical” to those in the instant case,
and Smith conceded that the Smith XII complaint was a “duplicative filing” meant to keep his claims
alive in the event the instant action was dismissed. Accordingly, this Court dismissed that twelfth
lawsuit as duplicative. See Smith XII, No. 13-1610, 2013 WL 5820495, at *1 (D.D.C. Oct. 23, 2013).
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 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. ¶¶ 6216
The complaint in Smith X named Justices Scalia, Kennedy, Thomas, Roberts, Stevens, Ginsburg,
Breyer, Alito, and Sotomayor as defendants. (See Smith X, No. 09-1926, Compl., ECF No. 1.) When
Smith X came to the Supreme Court on Smith’s petition for certiorari, Justices Scalia, Kennedy,
Thomas, Ginsburg, Breyer, Alito and Sotomayor recused themselves, 131 S. Ct. 1614 (2011), which
meant that the Supreme Court lacked a quorum to consider the matter. Id.
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 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
After Smith filed the instant complaint and before the Defendants responded, Smith filed a series of
motions requesting immediate removal of all the judges named in his complaint (see, e.g., ECF Nos. 10,
12, 18, 19); seeking declarations that the defendants had violated international law and the Constitution
(see, e.g., ECF Nos. 11, 17, 33); and asking for an order permitting Smith, as a private attorney general,
to present evidence of Defendants’ purported criminal constitutional conduct to a grand jury (ECF No.
32). These motions essentially argued for the same relief Smith ultimately seeks in his complaint;
therefore, this Court issued an order denying each of these motions without prejudice, in order to allow
Defendants the opportunity to respond to the allegations in the complaint, which Smith’s motions
generally repeated and sought to enforce. (See Order, ECF No. 34.)
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 in the complaint and
in his oppositions to Defendants’ motions, often verbatim—are still pending.
A. Motion To Dismiss Under Rule 12(b)(1)
Defendants contend that this Court has no subject-matter jurisdiction to entertain
Smith’s claims as a result of sovereign immunity, and thus that the complaint must be
dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1). See Fed. R. Civ. P.
12(b)(1). It is clear beyond cavil that the plaintiff bears the burden of establishing
jurisdiction by a preponderance of the evidence. See Lujan v. Defenders of Wildlife,
504 U.S. 555, 561 (1992); Halcomb v. Office of the Senate Sergeant-at-Arms of the U.S.
Senate, 209 F. Supp. 2d 175, 176 (D.D.C. 2002). Indeed, when it comes to Rule
12(b)(1), it is “presumed that a cause lies outside [the federal courts’] limited
jurisdiction,’ unless the plaintiff establishes by a preponderance of the evidence that the
Court possesses jurisdiction[.]” Muhammed v. FDIC, 751 F. Supp. 2d 114, 118 (D.D.C.
2010) (first alteration in original) (quoting Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 377 (1994)).
“When a Defendant files a motion to dismiss under Rule 12(b)(1) and Rule
12(b)(6), this Circuit has held that the court must first examine the Rule 12(b)(1)
challenges . . . because if it must dismiss the complaint for lack of subject[-]matter
jurisdiction, the accompanying defenses and objections become moot and do not need to
be determined[.]” Schmidt v. U.S. Capitol Police Bd., 826 F. Supp. 2d 59, 64 (D.D.C.
2011) (first alteration in original) (internal quotation marks and citations omitted); see
also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004) (“As a court of
limited jurisdiction, we begin, and end, with an examination of our jurisdiction.”
(citation omitted)). Moreover, “the court must scrutinize the plaintiff’s allegations
more closely when considering a motion to dismiss pursuant to Rule 12(b)(1) than it
would under . . . Rule 12(b)(6).” Schmidt, 826 F. Supp. 2d at 65 (citing Macharia v.
United States, 334 F.3d 61, 64, 69 (D.C. Cir. 2003)). Still, the court must accept as true
all of the factual allegations in the complaint and draw all reasonable inferences in
favor of the plaintiff, Brown v. District of Columbia, 514 F.3d 1279, 1283 (D.C. Cir.
2008), but it need not “accept inferences unsupported by the facts alleged or legal
conclusions that are cast as factual allegations[,]” Rann v. Chao, 154 F. Supp. 2d 61, 64
B. Motion To Dismiss Under Rule 12(b)(6)
“A Rule 12(b)(6) motion tests the legal sufficiency of a complaint[.]” Browning
v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). Plausibility “is not
akin to a probability requirement, but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (internal quotation marks and
citations omitted). The plausibility standard is satisfied “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Id. (citation omitted). “[W]hile detailed factual
allegations are not necessary, the plaintiff must provide more than an unadorned, thedefendant-unlawfully-harmed-me accusation[.]” Schmidt, 826 F. Supp. 2d at 65
(internal quotation marks omitted) (quoting Iqbal, 556 U.S. at 678).
In deciding whether to dismiss a complaint for failure to state a claim, the court
“must treat the complaint’s factual allegations—including mixed questions of law and
fact—as true and draw all reasonable inferences therefrom in the plaintiff’s favor.”
Epps v. U.S. Capitol Police Bd., 719 F. Supp. 2d 7, 13 (D.D.C. 2010) (citing Holy Land
Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 2003), and
Browning, 292 F.3d at 242). However, the court need not accept as true inferences that
the facts set out in the complaint do not support, nor must the court adopt legal
conclusions that are cast as factual allegations. Browning, 292 F.3d at 242.
C. Application Of The Pleading Rules To Pro Se Plaintiffs
In applying the legal framework addressed above, the Court is mindful of the fact
that Smith is proceeding in this matter pro se. The pleadings of pro se parties are to be
“liberally construed,” and a pro se complaint, “however inartfully pleaded, must be held
to less stringent standards than formal pleadings drafted by lawyers.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam) (emphasis in original) (internal citations
and quotation marks omitted); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
“This benefit is not, however, a license to ignore the Federal Rules of Civil Procedure.”
Sturdza v. United Arab Emirates, 658 F. Supp. 2d 135, 137 (D.D.C. 2009) (citation
omitted); McNeil v. United States, 508 U.S. 106, 113 (1993). This means that even a
pro se plaintiff must meet his burden of proving subject matter jurisdiction to survive a
Rule 12(b)(1) motion to dismiss. See, e.g., Green v. Stuyvesant, 505 F. Supp. 2d 176,
177 (D.D.C. 2007) (dismissing complaint where pro se plaintiff failed to prove subject
matter jurisdiction). Likewise, although a pro se complaint “must be construed
liberally, the complaint must still ‘present a claim on which the Court can grant relief’”
to withstand a Rule 12(b)(6) challenge. Budik v. Dartmouth-Hitchcock Med. Ctr., 937
F. Supp. 2d 5, 11 (D.D.C. 2013) (citation omitted)); Moore v. Motz, 437 F. Supp. 2d 88,
90 (D.D.C. 2006) (noting that “[e]ven a pro se plaintiff’s inferences . . . need not be
accepted” if they “are unsupported by the facts set out in the complaint” (citation
omitted)); see also Crisafi v. Holland, 655 F.2d 1305, 1308 (D.C. Cir. 1981) (noting
that a pro se complaint must state a claim upon which relief can be granted).
The two pending motions to dismiss make substantially the same arguments for
dismissal: (1) that absolute and sovereign immunity bar Smith’s claims, (2) that the
complaint fails to state a claim upon which relief can be granted because no causes of
action exist for the majority of its claims, and (3) that both res judicata and collateral
estoppel preclude the claims in the complaint. In large part, Defendants do not explain
which arguments apply to which of the complaint’s six counts, instead they argue that
each of these three defenses warrants dismissal of the complaint in its entirety. In his
oppositions, Smith strenuously objects to all of Defendants’ arguments, and reiterates
both the points made in the complaint and those that appeared in the myriad motions he
has filed during the course of this litigation. In their reply, Defendants aver that
Smith’s opposition “fails to demonstrate any cognizable authority as to why his
complaint should not be dismissed, other than his own beliefs about the law and how it
should be changed.” (D.C. Defs.’ Reply, ECF No. 44, at 2.)
As explained further below, this Court concludes that it lacks jurisdiction over
the complaint’s claims against the United States and the individual judge defendants in
their official capacity; that absolute immunity bars the claims against the individual
judge defendants in their individual capacity; and that the remaining counts fail to state
a claim upon which relief may be granted because there are no available causes of
action for those claims. Consequently, the entire complaint must be dismissed. In
addition, in light of Smith’s history of filing multiple suits arising out of this same
dispute, prospective filing restrictions such as those imposed in the District of Colorado
are warranted here, and 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
Columbia, unless he first obtains permission from the court to proceed pro se. While
Smith is certainly entitled to appeal this Court’s judgment dismissing his complaint
(and thus he has a continued avenue of relief in regard to the instant case), the Court
finds that he has completely and exhaustively aired his allegations in the two
complaints that he has already filed in this jurisdiction; therefore, prior to filing any
additional complaints arising out of the same underlying circumstances, he will be
required to seek leave of Court.
A. The Court Lacks Jurisdiction Over Smith’s Claim For Damages
Against The United States And The Individual Judge Defendants In
Their Official Capacity
Defendants maintain that sovereign immunity prevents the Court’s exercise of
jurisdiction in this case. (D.C. Defs.’ Mem. at 20; Non-D.C. Defs.’ Mot. at 17 n.6.)
Smith contends that the doctrine of sovereign immunity itself is an improperly-created
legal fiction and should therefore be disregarded. (Compl. ¶ 425; Opp’n I at 32.) In the
alternative, he argues that an international treaty and the Bill of Rights waive sovereign
immunity, and further, that this Court is “obliged to declare the Bill of Rights void for
want of enforcement” if it determines that sovereign immunity is in fact a bar to this
suit, since, from Smith’s vantage point, a citizen has no rights if he cannot enforce
those rights against a federal judge. (Pl.’s Resp. in Opp’n to D.C. Defs.’ Mot. to
Dismiss (“Opp’n II”), ECF No. 43, at 29.) Because mere disagreement with the law is
not a basis for setting it aside or declaring it invalid, Smith’s principal position has no
merit. Moreover, the law clearly establishes that sovereign immunity bars Smith’s
claims for damages against the United States and the individual judges in their official
The doctrine of sovereign immunity provides that the United States is immune
from suit unless Congress has expressly waived the defense. See, e.g., United States v.
Mitchell, 463 U.S. 206, 212 (1983) (“It is axiomatic that the United States may not be
sued without its consent and that the existence of consent is a prerequisite for
jurisdiction.”); Cohens v. Virginia, 19 U.S. 264, 411-12 (1821) (“The universally
received opinion is[ ] that no suit can be commenced or prosecuted against the United
States[.]”); Webman v. Fed. Bureau of Prisons, 441 F.3d 1022, 1025 (D.C. Cir. 2006)
(citations omitted). If sovereign immunity applies, the court lacks jurisdiction to
entertain the offending suit. See, e.g., FDIC v. Meyer, 510 U.S. 471, 475 (1994);
United States v. Sherwood, 312 U.S. 584, 586 (1941); Galvan v. Fed. Prison Indus.,
Inc., 199 F.3d 461, 463 (D.C. Cir. 1999). A lawsuit against a government official in his
official capacity is tantamount to a suit against “an entity of which an officer is an
agent[,]” Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (internal quotation marks
omitted) (quoting Monell v. N.Y. Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55 (1978));
therefore, the sovereign immunity doctrine applies equally to the government itself and
to any federal official sued in his or her official capacity. Significantly, although
Congress may waive sovereign immunity—and, accordingly, the government’s liability
to suit—any such waiver must be express. United States v. Mitchell, 445 U.S. 535, 538
(1980). And a plaintiff bears the burden of establishing that sovereign immunity has
been waived or abrogated. Tri-State Hosp. Supply Corp. v. United States, 341 F.3d 571,
575 (D.C. Cir. 2003) (citations omitted).
In this case, Plaintiff has brought suit against both the United States and 19
individual Article III federal judges. (See Compl. ¶¶ 34-44.) The United States clearly
falls within the protective reach of sovereign immunity. See Mitchell, 463 U.S. at 212.
Moreover, to the extent that Smith has sued the judges in their official capacity, these
defendants are part of the United States government for the purposes of sovereign
immunity, as well. See Graham, 473 U.S. at 165-66; Jackson, 844 F. Supp. 2d at 76;
see, e.g., Mason v. Judges of U.S. Ct. of Appeals for D.C. Cir. In Regular Active Serv.
Acting In Their Official Capacity, 952 F.2d 423, 425 (D.C. Cir. 1991) (“To the extent
the present suit is against the active judges of this court, it is a suit ‘against the United
States.’”). 8 Thus, in order to avoid the sovereign immunity bar and the concomitant
finding that this Court lacks jurisdiction, Smith must establish that Congress has waived
sovereign immunity expressly with respect to the particular claim.
Smith has failed to carry this burden. With respect to Counts III through VI,
which appear to seek money damages from the United States and the individual judges,
Smith’s primary contention is that sovereign immunity should not apply because that
doctrine is facially unconstitutional or has no foundation in law. This proposition is
entirely unsupported, as noted above. Smith’s next argument—that the International
Covenant on Civil and Political Rights (“ICCPR”) waives sovereign immunity (see
Opp’n I at 17)—fares no better. The ICCPR is a treaty that recognizes the importance
of civil rights obligations of the signatory nations. See Ralk v. Lincoln Cnty., 81 F.
Supp. 2d 1372, 1380 (N.D. Ga. 2000). Although the treaty “contains general statements
affirming the rights of individuals to live free from discrimination and oppression[,]” it
“contains no explicit language waiving [ ] sovereign immunity[.]” Godfrey v. Ross, No.
The complaint itself does not designate certain claims as being brought against the defendant judges
in their official versus personal capacities. (See Compl. ¶¶ 621-644.) Hence, it is unclear whether
Smith meant to bring this suit against the individuals in their official or personal capacities, or both.
The D.C. Circuit has not taken a position on whether a plaintiff has a duty to specify the capacity in
which a § 1983 or Bivens claim is being brought such that the court should presume official capacity
unless otherwise stated, and other circuits are split on the matter. Compare Baker v. Chisom, 501 F.3d
920, 923 (8th Cir. 2007) (section 1983 complaints that do not specify capacity are construed as having
been brought against defendants in their official capacity), cert. denied, 128 S. Ct. 2932 (2008) with
Price v. Alaska, 928 F.2d 824, 828 (9th Cir. 1990) (section 1983 complaints that do not specify
capacity are construed as having been brought against defendants in their individual capacity). This
Court need not take a position on this issue nor decide what Smith intended in the instant complaint
because the capacity question is immaterial to the result of this case. See Neff v. Bureau of Prisons,
No. 07-1672, 2009 WL 559514, at *1 n.2 (D.D.C. Mar. 5, 2009); cf. McDonald v. Salazar, 831 F. Supp.
2d 313, 318 n.6 (D.D.C. 2011) (where the plaintiff’s amended complaint did not make clear whether the
claims were against the defendants in their official or personal capacities, construing the claims as
brought against defendants in their individual capacity because sovereign immunity would bar the
official capacity claims).
2:11-2308, 2012 WL 507162, at *5 (E.D. Cal. Feb. 15, 2012) (record citation omitted).
Hence, courts have already found that the ICCPR does not waive sovereign immunity.
See Tobar v. United States, 639 F.3d 1191, 1196 (9th Cir. 2011) (citation omitted); see,
e.g., Godfrey, 2012 WL 507162, at *5; Nhia Kao Vang v. Decker, No. 2:12-1226, 2012
WL 5020491, at *6 (E.D. Cal. Oct. 17, 2012) (citing Dickens v. Lewis, 750 F.2d 1251,
1253-54 (5th Cir. 1984)); Smith V, 2008 WL 2751346, at *7 (D. Colo. July 11, 2008)
(citation omitted); Jama v. U.S. INS, 22 F. Supp. 2d 353, 365 (D.N.J. 1998). And not
only is Smith unable to cite to a single decision to the contrary, but he has also has
raised precisely this argument in prior litigation, and it was rejected. See Smith V, 2008
WL 2751346, at *7 (D. Colo. July 11, 2008) (rejecting Smith’s argument that the
ICCPR creates provides any express waiver of sovereign immunity), aff’d, 350 F.
App’x 190 (10th Cir. 2009), cert. denied, 559 U.S. 1086 (2010).
Plaintiff’s final two sovereign immunity arguments—that jus cogens
international law and the Bill of Rights waive sovereign immunity—are also
inconsistent with established law. Jus cogens is the accepted principle that
internationally accepted norms carry the force of law, see Black’s Law Dictionary (9th
ed. 2009), which appears to have no application under the instant circumstances.
Regardless, the D.C. Circuit has made clear that a government does not waive sovereign
immunity by committing violations of jus cogens, see Belhas v. Ya’alon, 515 F.3d 1279,
1292 (D.C. Cir. 2008) (citation omitted); therefore, even if such violations were
established here, that would do little to advance Plaintiff’s argument that sovereign
immunity has been waived. In addition, the Bill of Rights clearly does not contain any
congressional mandate expressly waiving sovereign immunity, and Plaintiff is unable to
point to any court that has held as much.
Therefore, Plaintiff has failed to meet his burden of proving a waiver of
sovereign immunity, see Tri-State Hosp. Supply, 341 F.3d at 575, and as a result, the
Court lacks jurisdiction over Count VI against the United States, and over Counts III,
IV, and V to the extent that they seek money damages for constitutional violations that
the United States or the individual judge defendants in their official capacities allegedly
committed. See Meyer, 510 U.S. at 475; Sherwood, 312 U.S. at 586; Galvan, 199 F.3d
B. Absolute Judicial Immunity Bars The Claims Against The Individual
Judge Defendants In Their Personal Capacity
Smith’s constitutional claims against the individual judge defendants (Counts III,
IV, and V) also fail to the extent that this suit has been brought against them in their
personal capacity. Smith seeks money damages for the judges’ alleged violations of his
constitutional rights, pursuant to 42 U.S.C. § 1983 (see Compl. ¶¶ 621-652), which this
Court will construe as claims against the federal judicial officers made pursuant to
Bivens v. Six Unknown Named Federal Narcotics Agents, 403 U.S. 388 (1971). 9
In their motions to dismiss, Defendants maintain that Counts III, IV, and V should be dismissed on
the ground that § 1983 does not provide a cause of action against federal officials, because that statute
only applies to officials acting under the color of state law. (D.C. Defs.’ Mem. at 19 (“[W]hile the
Plaintiff has averred claims under Section 1983, these fail to state a claim as well against the D.C.
Court Defendants because that provision only applies to State actors, not federal officials.” (citation
omitted)); Non-D.C. Defs.’ Mot. at 23 (same).) In his oppositions, Plaintiff asks the Court either to
construe his § 1983 claims as if they were brought pursuant to Bivens v. Six Unknown Named Federal
Narcotics Agents, 403 U.S. 388 (1971), or grant him leave to amend the complaint to effect this small
change. (See Opp’n II at 35-36.) Given Plaintiff’s pro se status and the fact that the court’s analysis of
a Bivens action mirrors that of a § 1983 claim, see Moore v. Valder, 65 F.3d 189, 192 (D.C. Cir. 1995);
Mittleman v. U.S. Treasury, 773 F. Supp. 442, 451 n.8 (D.D.C. 1991), the Court will construe
Plaintiff’s claims as if they were brought under Bivens. See Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(directing district courts to use a more liberal standard with pro se plaintiffs).
Nevertheless, the claims against the individual judge defendants in their personal
capacities are barred under the doctrine of absolute judicial immunity and thus must be
dismissed pursuant to Rule 12(b)(6). See Forrester v. White, 484 U.S. 219, 225 (1988)
(claims against judges in their individual capacities must be dismissed because judges
are absolutely immune from lawsuits predicated on acts taken in their judicial capacity);
Caldwell v. Kagan, 455 F. App’x 1, 1 (D.C. Cir. 2011) (a claim asserted against a
federal judge stemming from official judicial acts is subject to dismissal under Rule
12(b)(6) (citations omitted)); see, e.g., Tsitrin v. Lettow, 888 F. Supp. 2d 88, 91 (D.D.C.
2012); Nwachukwu v. Rooney, 362 F. Supp. 2d 183, 191-92 (D.D.C. 2005). 10
It is well established that judicial immunity shields federal judges from a suit for
money damages. Mireles v. Waco, 502 U.S. 9, 9 (1991) (citations omitted); Rodriguez
v. Editor in Chief, Legal Times, No 07-5234, 2007 WL 5239004, at *2 (D.C. Cir. Dec.
19, 2007) (citations omitted); Tsitrin, 888 F. Supp. 2d at 91 (citing Caldwell, 455 F.
App’x at 1). This absolute immunity protects judges from allegations predicated on
actions that they performed in their judicial capacity. See Mireles, 502 U.S. at 12;
Forrester, 484 U.S. at 225; Stump v. Sparkman, 435 U.S. 349, 355-57 (1978); Clark v.
Taylor, 627 F.2d 284, 287 (D.C. Cir. 1980) (per curiam). “Accordingly, courts in this
district routinely dismiss matters filed against judges in their judicial capacity.”
Tsitrin, 888 F. Supp. 2d at 91 (collecting cases); see also Moore, 437 F. Supp. 2d at 91;
Rodriguez, 2007 WL 5239003, at *2 (dismissing claims for money damages against
Although the doctrines of absolute judicial immunity and sovereign immunity both lead to the same
result, these two grounds for dismissal have different bases under the federal rules. Sovereign
immunity strips the court of jurisdiction and thus renders dismissal appropriate under Rule 12(b)(1).
By contrast, absolute judicial immunity is a non-jurisdictional bar to a “claim asserted against a federal
judge stemming from official judicial acts” and is thus “subject to dismissal under Rule 12(b)(6) for
failure to state a claim upon which relief can be granted.” Tsitrin v. Lettow, 888 F. Supp. 2d 88, 91
(D.D.C. 2012) (citing Caldwell v. Kagan, 455 F. App’x 1, 1 (D.C. Cir. 2011)).
state and federal judges challenging judicial actions). The scope of this immunity is
broad: “[a] judge will not be deprived of immunity because the action he took was in
error, was done maliciously, or was in excess of his authority; rather, he will be subject
to liability only when he has acted in the ‘clear absence of all jurisdiction.’” Stump,
435 U.S. at 356-57 (citation omitted); see also Forrester, 484 U.S. at 227-29 (absolute
immunity protects a judge for liability stemming from adjudicative acts performed in
his official capacity); Mireles, 502 U.S. at 22 (“Judicial immunity is not overcome by
allegations of bad faith or malice[.]”). In other words, “the necessary inquiry in
determining whether a defendant judge is immune from suit is whether at the time he
took the challenged action he had jurisdiction over the subject matter before him.”
Stump, 435 U.S. at 356.
A recent case from this district is particularly instructive. In Caldwell v. Kagan,
865 F. Supp. 2d 35 (D.D.C. 2012), the plaintiff sued judges of the U.S. District Court in
D.C., the U.S. Court of Appeals for the D.C. Circuit, the U.S. Tax Court, and a number
of other federal officials for what he perceived as unjust and unconstitutional
misconduct committed during the course of earlier cases. 865 F. Supp. 2d at 39-40.
Specifically, the plaintiff contended that the judges’ dismissals of his earlier
complaints, and the Supreme Court’s denial of his petition for certiorari, infringed his
right to due process. Id. at 40. Because the cases had been properly before the judges
when they took the challenged action, the court held that the district court judge who
dismissed the plaintiff’s previous complaints was entitled to absolute immunity, as was
the panel of D.C. Circuit judges who affirmed that dismissal on appeal regardless of
whether the dismissal or denial actually violated the Constitution. See id. at 40, 42-43.
Caldwell and cases like it underscore the purpose of absolute judicial immunity:
it safeguards the adjudicatory process because, without it, losing litigants would be “apt
to complain of the judgment against [them]” and “ascri[be] improper motives to the
judge.” Bradley v. Fisher, 80 U.S. 335, 348-49 (1871). In the absence of such
immunity protection, “[t]he judge would risk being haled into court by the losing party
in every decision he rendered, and the second judge addressing the suit against the first
would risk the same if he found in favor of the initial judge[,]” Caldwell, 865 F. Supp.
2d at 43 (quoting Bradley, 80 U.S. at 348-49), a result that would imperil the proper
functioning of our federal court system. Thus, the well-established “remedy for alleged
mishandling of a prior case is not a Bivens action against the . . . judge, who enjoys
absolute immunity, but an appeal or appeals in the prior case[.]” Howard v. U.S. Dist.
Court ex rel. District of Columbia, 468 F. App’x 12, 12 (D.C. Cir. 2012) (internal
Like Caldwell, the instant complaint presents the classic case of a dissatisfied
litigant. Without question, all of the allegations in the instant complaint relate to the
individual judges’ actions in their roles as judges: the dismissal of Smith’s prior cases,
the content of the written opinions, and the justices’ recusal decisions. (See, e.g.,
Compl. ¶ 406L (challenging the judicial practice of issuing unpublished decisions); id.
¶ 406N (challenging the judges’ treatment of pro se cases).) Defendants point out that
Plaintiff has brought suit against “sitting judges simply because of their judicial acts
and decisions when they presided over his previous unsuccessful lawsuits[,]” (D.C.
Defs.’ Mem. at 10; see also Non-D.C. Defs.’ Mot. at 16-17), and Smith concedes as
much: in his opposition, he highlights that the relevant facts of this case are the
“cursory opinions that [the defendants] issued[,]” and the “[un]professional and
[in]competent manner” in which his earlier lawsuits were decided. (Opp’n II at 1, 4).
Thus, as prior similar cases establish, the sole remedy for the “alleged mishandling” of
Smith’s prior cases is “an appeal”—which Smith “has [already] pursued and lost”—not
a lawsuit against the judges who made that determination. Howard, 468 F. App’x at 12.
None of Smith’s arguments against absolute judicial immunity persuade this
Court otherwise. Neither the ICCPR nor the doctrine of jus cogens addresses, much
less abrogates, absolute judicial immunity. See Smith V, 2008 WL 2751346, at *7;
Ralk, 81 F. Supp. 2d at 1380. And Smith’s contention that absolute immunity somehow
does not apply because Defendants’ treatment of his prior cases allegedly ran afoul of
the Constitution fails to account for the fact that absolute immunity unquestionably is
applicable, and warranted, whenever a challenged judicial decision was made in the
exercise of judicial discretion—without regard to whether the offending judicial act
was, itself, illegal or wrongful. See Stump, 435 U.S. at 356-57 (noting that even
wrongful or malicious conduct is excused if done in the exercise of judicial discretion
so long as the court had jurisdiction); see, e.g., Caldwell, 865 F. Supp. 2d at 42-43.
In sum, insofar as Counts III, IV, and V seek money damages from the individual
judge defendants in their personal capacities pursuant to Bivens—or any other legal
theory, for that matter—these counts must be dismissed under Rule 12(b)(6) because
absolute immunity protects the individual judge defendants from liability for
performing the judicial acts that Smith now challenges.
C. There Is No Cause Of Action Available For The Non-Monetary Relief
Two counts of the instant complaint request that this Court order specific forms
of injunctive relief: (1) that the individual judge defendants be removed from the
federal bench pursuant to the Good Behavior clause (Count I), and (2) that a grand jury
be convened to allow Smith to prosecute the judges as a private attorney general (Count
II). (See Compl. ¶¶ 601-617.) The Supreme Court has held that “judicial immunity is
not a bar to prospective [injunctive] relief against a judicial officer acting in her
judicial capacity[,]” Pulliam v. Allen, 466 U.S. 522, 541-42 (1984); Wagshal v. Foster,
28 F.3d 1249, 1252 (D.C. Cir. 1994) (citation omitted), so absolute judicial immunity
does not dispose of these claims. However, Defendants argue that Plaintiff cannot
proceed with these claims because no private cause of action for removal of sitting
federal judges or for permitting private citizens to serve as attorneys general is
available. (See D.C. Defs.’ Mem. at 18-19; Non-D.C. Defs.’ Mot. at 22.) This Court
agrees, and thus both Counts I and II must be dismissed under Rule 12(b)(6). See John
Doe v. Metro. Police Dep’t of the District of Columbia, 445 F.3d 460, 466 (D.C. Cir.
2006) (affirming dismissal of plaintiff’s claims under Rule 12(b)(6) where no cause of
action existed); Sabre Int’l Sec. v. Torres Advanced Enter. Solutions, No. 11-806, 2014
WL 341071, at *9 (D.D.C. Jan. 30, 2014) (dismissing plaintiff’s claims under Rule
12(b)(6) where no cause of action existed).
With respect to Smith’s contention that the ‘Good Behavior’ clause of Article III
gives private individuals the right to bring suit to remove federal judges from the bench
(Compl. ¶¶ 601-605), Defendants cite a long line of cases that hold unequivocally that
Congress—not private individuals like Smith—has exclusive authority to enforce the
Good Behavior clause by initiating impeachment proceedings. (D.C. Defs.’ Mem. at
18; Non-D.C. Defs.’ Mot. at 22.) Indeed, no less an authority than the Supreme Court
has held that “[t]he ‘good Behaviour’ Clause guarantees that Art. III judges shall enjoy
life tenure, subject only to removal by impeachment.” N. Pipeline Construction. Co. v.
Marathon Pipe Line Co., 458 U.S. 50, 59 (1982) (plurality) (emphasis added) (citing
United States ex rel. Toth v. Quarles, 350 U.S. 11, 16 (1955)); see Mistretta v. United
States, 488 U.S. 361, 410 (1989) (“[A] federal judge . . . continue[s], absent
impeachment, to enjoy tenure ‘during good Behaviour[.]” (citation omitted)); see also
Hastings v. Judicial Conference of U.S., 770 F.2d 1093, 1107 (D.C. Cir. 1985)
(Edwards, J., concurring) (“[I]n order for Article III’s guarantee of independence to be
fulfilled, the Constitution must be interpreted to designate impeachment as the exclusive
mechanism for disciplining or removing federal judges.” (emphasis in original)).
Moreover, Plaintiff has made the ‘Good Behavior’ removal request in prior lawsuits,
and the courts that previously considered this issue also concluded that there is no
private right of action to seek removal of a sitting federal judge. See, e.g., Smith v.
Krieger, 389 F. App’x at 798 (“Smith argues that impeachment is not the sole means of
removing Article III judges who no longer exhibit the ‘good Behaviour’ required for
continued tenure under Article III of the Constitution. Instead, he argues, the Ninth and
Tenth Amendments work to reserve to the people the right to remove such Article III
judges. We disagree.”); Smith VII, 2009 WL 4035902, at *2 (D. Colo. Nov. 19, 2009)
(rejecting Smith’s Good Behavior clause cause of action because only Congress can
remove a federal judge from office). Constitutional scholars, too, have concurred that a
textual analysis “clearly reveals that impeachment must be the sole means of removal of
a federal judge from office.” Martin H. Redish, Judicial Discipline, Judicial
Independence, and the Constitution: A Textual and Structural Analysis, 72 S. Cal. L.
Rev. 673, 673 (1999). In light of the binding precedent that clearly establishes that
private citizens have no right to seek to enforce the Article III ‘Good Behavior’ clause
through a lawsuit for injunctive relief that requests removal of a judge, this Court
concludes that Count I must be dismissed for failure to state a claim upon which relief
can be granted. 11
Likewise, Smith’s contention that private individuals have the power to
prosecute others for crimes under the Ninth and Tenth Amendments, and that this Court
should convene a grand jury to permit him to exercise that authority here (Compl.
¶¶ 611-617) is unavailing. “Our entire criminal justice system is premised on the
notion that a criminal prosecution pits the government against the governed, not one
private citizen against another.” Robertson v. U.S. ex rel. Watson, 560 U.S. 272, 278
(2010) (Roberts, dissenting). By statute, Congress conferred the power to prosecute
crimes on the United States Attorney General and his delegates, see 28 U.S.C. §§ 515519, and under uncontroverted Supreme Court precedent, that power is exclusive. See,
e.g., United States v. Nixon, 418 U.S. 683, 693 (1974) (“[T]he Executive Branch has
exclusive authority . . . to decide whether to prosecute a case[.]” (citation omitted)); id.
at 694 (“Under the authority of Art. II, [§] 2, Congress has vested in the Attorney
General the power to conduct the criminal litigation of the United States Government.”
Notably, and for what it’s worth, this does not mean that private citizens are entirely without options
with respect to the conduct of purportedly misbehaving judges: when judicial misconduct is
“prejudicial to the effective and expeditious administration of the business of the courts,” or a judge “is
unable to discharge all the duties of office by reason of mental or physical disability,” 28 U.S.C.
§ 351(a), “Congress has established a statutory mechanism for complaints of judicial misconduct that
can culminate in Congressional impeachment proceedings.” Smith v. Krieger, 389 F. App’x 789, 798
(10th Cir. 2010) (citing 28 U.S.C. §§ 351-364).
(citation omitted)); Confiscation Cases, 74 U.S. 454, 457 (1868) (“Public prosecutions
. . . are within the exclusive direction of the district attorney[.]”); Ballance v. Peeples,
No. 10-864, 2010 WL 3069201, at *1 (D.D.C. Aug. 5, 2010) (noting that a private
individual “cannot compel a criminal investigation”). Plaintiff provides no citations to
cases that support his position, and the courts that previously considered his argument
in this regard concluded that it lacks foundation in the law. See, e.g., Smith v. Krieger,
389 F. App’x at 799 (there is “no right to initiate a criminal prosecution in the name of
the United States under the Ninth or Tenth Amendments, or otherwise”), cert. denied
sub nom. Smith v. Anderson, 131 S. Ct. 1511 (2011). Accordingly, Smith’s claim that
this Court can convene a grand jury to afford him the right to initiate criminal
proceedings against Defendants fails and must be dismissed under Rule 12(b)(6). See
John Doe, 445 F.3d at 466; Sabre Int’l Sec., 2014 WL 341071, at *9.
REQUEST FOR SANCTIONS AND PRE-FILING INJUNCTION
Having considered, and disposed of, each of the counts in the instant complaint
on the grounds of sovereign immunity, absolute judicial immunity, or the fact that a
cause of action is not available to Plaintiff, this Court need not address the other
substantive arguments that Defendants have made in support of dismissal, including
whether res judicata or issue preclusion bars consideration of Smith’s claims. 12
However, the Court will address Defendants’ request that this Court impose monetary
sanctions and/or a pre-filing injunction that would bar Smith from filing any further
actions in this district without first seeking leave of court. (D.C. Defs.’ Mem. at 22;
Given that no claims remain, the Court also need not consider Plaintiff’s novel argument that
summary judgment and dismissal pursuant to Rule 12(b)(6) are unconstitutional when a plaintiff makes
a jury demand. (See Opp’n II at 5-8.)
Non-D.C. Defs.’ Mot. at 25.) Defendants argue that, given Smith’s practice of filing
actions in federal court that re-raise claims that were previously rejected, the Court
should impose a pre-filing injunction on Smith similar to the one imposed on him in the
District of Colorado (D.C. Defs.’ Mem. at 22; Non-D.C. Defs.’ Mot. at 25) as well as
monetary sanctions (Non-D.C. Defs.’ Mot. at 24). Smith’s opposition to Defendants’
motions to dismiss does not address Defendants’ request for future filing restrictions,
but with respect to monetary sanctions, Plaintiff contends that the request for monetary
sanctions should be denied for two reasons: first, because the request is procedurally
improper under Rule 11, which mandates that motions for sanctions be made
“separately from any other motion”; and, second, because his lengthy complaint and
multitude of motions purportedly “evidence [his] due diligence,” in stark contrast to the
frivolousness that Rule 11 punishes. (Opp’n I at 42-43.)
A. Defendants’ Request for Monetary Sanctions
In the debate over Defendants’ request for monetary sanctions, this Court agrees
with Plaintiff. Rule 11 authorizes the court to sanction “an attorney, law firm, or party”
under specified circumstances, see Fed. R. Civ. P. 11(c)(1), but also makes clear that
“[a] sanction imposed under this rule must be limited to what suffices to deter repetition
of the conduct[.]” Fed. R. Civ. P. 11(c)(4). Rule 11 provides certain bases for the
imposition of sanctions, including that a party’s legal contentions are frivolous or
unwarranted under existing law, or that the claims have been presented for an improper
purpose such as harassment. See Fed. R. Civ. P. 11(c)(1); Crawford-El v. Britton, 523
U.S. 574, 600 (1998); Anthony v. Baird, 12 F. Supp. 2d 23, 25 (D.D.C. 1998).
Monetary sanctions are one type of authorized penalty that is purely
discretionary and may be imposed whenever a court determines that Rule 11 has been
violated, provided that the sanctioned party has been given a notice and an opportunity
to respond. Fed. R. Civ. P. 11(c)(3); see Cobell v. Norton, 211 F.R.D. 7, 10 (D.D.C.
2002) (citation omitted). Indeed, Rule 11 monetary sanctions can even be imposed on
pro se litigants. See Fed. R. Civ. P. 11(b); Kurtz v. United States, 779 F. Supp. 2d 50,
51 n.2 (D.D.C. 2011) (citation omitted); see, e.g., Smith v. Educ. People, Inc., 233
F.R.D. 137, 142 n.9 (S.D.N.Y. 2005) (collecting cases from the Second and Eleventh
Circuits); Patterson v. Aiken, 841 F.2d 386, 387-88 (11th Cir. 1988) (pro se litigant was
liable to pay attorneys’ fees as a Rule 11 sanction after he filed an action based on
claims that had already been dismissed as frivolous in prior litigation). For example, in
Patterson, the Eleventh Circuit reviewed the district court’s impositions of sanctions on
a pro se plaintiff who had filed a fifth lawsuit bringing antitrust and constitutional
claims against individuals who were involved in litigating and adjudicating the four
prior actions that the plaintiff had filed. 841 F. 2d at 386-87. Because a similar
allegation and legal theory in the complaint had already been dismissed, the Court of
Appeals concluded that the plaintiff should have known that re-filing the same claim
was improper; thus, it affirmed the district court’s imposition of attorneys’ fees as a
monetary sanction under Rule 11. Id. at 387.
However, the fact that monetary sanctions can appropriately be assessed against
a pro se party under the familiar circumstance of needlessly duplicative litigation does
not necessarily mean that they should be. In light of the availability of other means of
deterrence, this Court declines to exercise its discretion to impose monetary sanctions
on Smith in this matter at this time. For the reasons explained below, however, this
Court does believe that this is an appropriate case for the imposition of a pre-filing
B. Defendants’ Request For A Pre-Filing Injunction
There is no doubt that “a court may employ injunctive remedies”—such as filing
restrictions—“to protect the integrity of courts and the orderly and expeditious
administration of justice.” Kaempfer v. Brown, 872 F.2d 496, 496 (D.C. Cir. 1989)
(quoting Urban v. United Nations, 768 F.2d 1497, 1500 (D.C. Cir. 1985)). Any such
restrictions must be narrowly tailored to protect that interest “without unduly
impair[ing] a litigant’s right of access to the courts.” In re Powell, 851 F.2d 427, 431
(D.C. Cir. 1988) (citing Urban, 768 F.2d at 1500). Moreover, such restrictions “should
remain very much the exception to the general rule of free access to the courts,” and
“the use of such measures against” pro se plaintiffs “should be approached with
particular caution.” Powell, 851 F.2d at 431 (internal quotation marks and citation
omitted). To address these concerns, prior to issuing pre-filing injunctions, courts in
the district ordinarily follow three steps: first, notice and the opportunity to be heard
are provided, see id.; see, e.g., Caldwell v. Powell, No. 13-1438, 2013 WL 6094237, at
*11 (D.D.C. Nov. 20, 2013); second, the court develops a record for review that
considers “both the number and content of the [plaintiff’s] filings[,]” Caldwell, 2013
WL 6094237, at *11 (quoting Powell, 851 F.2d at 434); and third, the court “make[s]
substantive findings as to the frivolous or harassing nature of the litigant’s actions.”
Caldwell, 2013 WL 6094237, at *11 (citations omitted).
Here, Defendants’ motions to dismiss provided Smith with ample notice that he
may be enjoined from making future filings in this district, and Smith also has had the
opportunity to be heard on the matter of whether a prospective pre-filing injunction is
appropriate because he was free to address the injunction issue in the context of his
briefs in opposition to Defendants’ motions. Cf. Slate v. Am. Broad. Cos., No. 09-1761,
2013 WL 6713178, at *9 n.7 (D.D.C. Dec. 20, 2013) (an opportunity to address an issue
in briefing counts as notice and an opportunity to be heard); Bishop v. Wynne, 478 F.
Supp. 2d 1, 4 (D.D.C. 2006) (same); Robert v. Dep’t of Justice, 439 F. App’x 32, 35 (2d
Cir. 2011) (same).
Moreover, the number and content of Smith’s prior filings provide sufficient
basis for consideration of a pre-filing injunction. Smith has filed ten prior lawsuits,
each with strikingly similar allegations, and the saga of this series demonstrates a clear
pattern: Smith repeatedly files suit against the judges that decided his prior action
when they do not order the relief he seeks, and in the context of each subsequent
lawsuit, he propounds substantially the same legal arguments that the prior courts have
considered and rejected. Although the specific claims and requests for relief may be
stated somewhat differently in each new case, Smith’s legal theories and the gravamen
of the complaints remain the same, and for the reasons explained above, his substantive
arguments do not have any merit. Thus, unless Smith is enjoined from filing any new
action in the District of Columbia, it is highly likely that there will continue to be one
lawsuit after another here in this district, naming each successive judge who considers
the legally baseless contentions, world without end.
Finally, it is clear that Smith’s cycle of filing lawsuits against judges who rule
against him raises the spectre of harassment, and, in any event, constitutes an
unwarranted burden on “the orderly and expeditious administration of justice.” Urban,
768 F.2d at 1500 (citations omitted); see, e.g., Caldwell, 2013 WL 6094237, at *12-13
(“Plaintiff’s repetitive filings of meritless claims against federal officials, federal
judges and private parties, compounded by the cycle of adding on as new defendants
each federal judge who has made a decision against the plaintiff, rises to the level of
harassing and vexatiousness to warrant a pre-filing injunction.”); Davis v. United
States, 569 F. Supp. 2d 91, 93, 98-99 (D.D.C. 2008) (imposing a pre-filing injunction
on the plaintiff after filing a fourth identical suit because “repetitive presentation of
essentially identical claims wastes limited judicial resources”). The sheer number of
suits and the circumstances in which they have been filed are, alone, enough to warrant
characterizing Smith’s lawsuits as harassment, but the tone of Plaintiff’s successive
suits dispels all doubt about the vexing nature of his pleadings. See Smith VII, 2009
WL 4035902, at *3 (collecting earlier cases reprimanding Smith for “abusive language”
and “disrespectful litigation practices” (citations omitted)). 13
Smith’s practice of filing duplicative motions also reflects a litigation strategy
that is properly characterized as harassment. In the context of the instant action, Smith
has not only filed two complaints but also a multitude of motions that seek the same
ultimate relief as the pending complaint requests. (See, e.g., ECF Nos. 10, 12, 18-19
(motions requesting immediate removal of all the judges named in his complaint); ECF
Nos. 11, 17, 33 (requesting declarations that Defendants violated international law and
the Constitution); ECF No. 32 (seeking an order permitting Smith, as a private attorney
Among the many disturbing statements that are made in the complaint is the assertion that several
judicial defendants have “signed their own death warrants” by issuing unconstitutional opinions that
amount to “acts of judicial tyranny” because “citizens have not only a right but the duty to kill
tyrants[.]” (Compl. ¶ 464; see also Emergency Mot. to Remove D.C. Defs., ECF No. 12, at 31 (“There
may come a day when the need to ‘Glock and load’ to defend the Constitution from the depredations of
a band of domestic tyrants, but Plaintiff prays that today is not that day[, as the Court has] the power to
do the right thing[.]”).)
general, to present evidence of Defendants’ purported criminal constitutional conduct to
a grand jury).) Yet again, this motion practice echoes Smith’s filings in prior cases.
See, e.g., Smith VII, 2009 WL 4035902, at *4 (noting that “Smith has also shown a
penchant for making duplicative arguments” given the multiple motions for relief that
“all raise the same arguments that are found in his complaint and responses to the
motions to dismiss”). And yet again, there appears to be no end in sight unless an
injunction is issued.
Consequently, this Court concludes that narrowly-tailored, prospective filing
restrictions are necessary. Similar to the restrictions that were imposed with respect to
filings in the District of Colorado, this Court will order that Plaintiff be restricted from
filing new actions in the U.S. District Court for the District of Columbia unless he is
either represented by a licensed attorney admitted to practice in this court or requests
and receives permission from the court to proceed pro se. As the accompanying order
makes clear, with respect to any request for leave to bring an action pro se, Smith will
be required to file a motion that includes specific information regarding, among other
things, all prior cases that he has filed in this district and whether he has previously
raised the legal issues brought in any new complaint. And if Smith files a pro se action
in this district without first seeking leave to do in accordance with the stated
prerequisites, the new case will be summarily dismissed.
As explained above, the complaint in this matter must be dismissed in its
entirety—partly due to sovereign immunity, partly due to absolute judicial immunity,
and generally because no cause of action exists for the claims that Smith brings.
Accordingly, as set forth in the accompanying order, the Court GRANTS both
Defendants’ motions to dismiss the complaint. Furthermore, in light of Smith’s long
history of filing successive actions against the judges who dismiss or deny the claims he
has made in previous lawsuits, Smith is ENJOINED from filing another pro se action
in this district without first seeking leave to file such action, in accordance with the
directions stated in the accompanying order.
Ketanji Brown Jackson
Date: May 26, 2014
KETANJI BROWN JACKSON
United States District Judge
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