Smith v. United States Congress et al
Filing
20
DECISION AND ORDER Granting Rule 12(b)(6) Motion for Dismissal of Defendant Thomas M. Barrett, Mayor of City of Milwaukee 3 , Granting Governor Scott Walker's Motion to Dismiss Pursuant to Rule 12(b)(6) 7 , Dismissing the United States President and the United States Congress, and Requiring Smith to File an Amended Complaint by 4/29/13. (cc: all counsel; via US Mail to Plaintiff) ((cef), C. N. Clevert, Jr.)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
BARRY J. SMITH, JR.,
Plaintiff,
v.
Case No. 13-C-0206
THE UNITED STATES CONGRESS,
THE UNITED STATES PRESIDENT,
THE GOVERNOR OF WISCONSIN,
THE MAYOR OF MILWAUKEE,
THE UNITED STATES SOCIAL
SECURITY ADMINISTRATION,
Defendants.
DECISION AND ORDER GRANTING RULE 12(b)(6) MOTION FOR DISMISSAL OF
DEFENDANT THOMAS M. BARRETT, MAYOR OF THE CITY OF MILWAUKEE
(DOC. 3), GRANTING GOVERNOR SCOTT WALKER’S MOTION TO DISMISS
PURSUANT TO RULE 12(b)(6) (DOC. 7), DISMISSING THE UNITED STATES
PRESIDENT AND THE UNITED STATES CONGRESS, AND REQUIRING SMITH TO
FILE AN AMENDED COMPLAINT ON OR BEFORE APRIL 29, 2013
Plaintiff, Barry J. Smith, Sr., filed a pro se petition for redress of grievances against
the United States Congress, the United States President, the Governor of Wisconsin, the
Mayor of Milwaukee, and the United States Social Security Administration. Smith, who
filed the petition under the First Amendment, asserts the following two causes of action:
First Cause of Action: Plaintiff was a supplemental security income recipient
of the U.S. Social Security Administration. Plaintiff applied to participate in
the “PASS”, program to achieve self sufficiency, program and submitted his
business plan to privately borrow about thirty thousand dollars and buy
foreclosed properties to rehab and rent with the intent to become self
sufficient within two years and remove himself from SSI. The Social Security
Administration, motivated by racism, refused to allow him to participate in the
PASS program, and has him repaying over ten thousand dollars in SSI
benefits as a result of that racially motivated refusal to allow him to
participate in the PASS program.
Second Cause of Action: Petitioner is being denied his guaranteed United
States Constitutional rights under the First (right to petition his government
for redress of grievances), Second (right to keep arms to protect his home
and children), Fourth (right to be free from unreasonable searches and
seizures based on his previous condition of Thirteenth Amendment Slavery),
Fifth (right to not be subject to a second jeopardy premised on the same
offense, and to not be compelled to witness against himself based on
previous condition of Thirteenth Amendment Slavery), Sixth (right to
represent himself with the counsel assistance of his choice, and the right to
be confronted by his accuser), Seventh (right to a jury trial where the value
in controversy exceeds twenty dollars), Eighth (right to be unduly charged,
convicted and punished based on either race or previous condition of
Thirteenth Amendment Slavery), Thirteenth (right to complete and total
restoration of the United States Constitutional rights upon discharge of
sentence/punishment), Fourteenth (right to due process and equal protection
of law without regard to previous condition of Thirteenth Amendment
Slavery) and Fifteenth (right to vote for himself in any and every political
election without regard to previous condition of Thirteenth Amendment
Slavery). Defendants are denying Plaintiff these United States Constitutional
rights based on a pattern and practice of Racism directed against him as a
descendant of the slaves described by the United States Supreme Court
Chief Justice Taney in Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 15 L.
Ed. 691).
A similar complaint was filed by Smith on November 10, 2008, and dismissed on the
merits by Judge J.P. Stadtmueller. See Smith Sr. v. The President of the United States,
et al., No. 08-C-956 (E.D. Wis. 2009). The Seventh Circuit Court of Appeals summarily
affirmed the dismissal, finding Smith’s constitutional arguments to be “absurd.” Smith v.
President of the United States, et al., No. 09-3419 (7th Cir. 2010). Prior to that, Judge
Rudolph T. Randa dismissed a complaint filed by Smith against the United States of
America and the State of Wisconsin for failing to state an actionable claim and for lack of
standing. See Smith v. United States, No. 08-C-262 (E.D. April 2, 2008), affirmed No. 082205 (7th Cir. Nov. 13, 2008).
Defendant Thomas M. Barrett moves to dismiss the petition for redress of
grievances under Rule 12(b)(g) on the ground that the petition fails to identify Mayor Barrett
or otherwise assert any legal or factual bases for a claim against him. Likewise, Governor
Walker moves to dismiss on the grounds that the petition lacks any factual allegations,
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merely recites the Constitution, and never alleges any facts that would connect Governor
Walker to any of the alleged Constitutional violations.
In response, Smith argues that he is not suing the mayor or the governor as private
individuals but rather is suing whoever is publicly employed as the mayor and governor.
He further maintains that the allegations are asserted against all defendants who have
failed to defend and enforce “the United States Constitution and the Thirteenth
Amendment on behalf of American-Africans.” According to Smith, these defendants grant
“only those United States and Constitutional rights they choose to grant to him, and they
deny him all others.” Thus, it appears that Smith may be seeking the repeal of “each and
every law in the Wisconsin constitution and the Statutes that violates the Thirteenth
Amendment, among others, of the Constitution of the United States of America.”
To survive dismissal under Rule 12(b)(6), a complaint must “ ‘give the defendant fair
notice of what the ... claim is and the grounds upon which it rests.’ ” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed.2d 929 (2007) (quoting Conley
v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)). Although detailed factual
allegations are not necessary to meet those requirements, a plaintiff must do more than
present “labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do.” Id. Rather, a “complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (internal quotation omitted).
Mindful that the court must liberally construe the petition, there are no facts asserted
regarding the mayor or the governor. Indeed, the only factual assertions appear in the first
cause of action with respect to the Social Security Administration and its refusal to allow
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Smith to participate in the PASS program. Neither the Mayor of the City of Milwaukee or
nor the Governor of Wisconsin are alleged to have any involvement with any decision by
the Social Security Administration. Accordingly, they will be dismissed.
Moreover, the court will dismiss the President of the United States and the U.S.
Congress inasmuch as the petition appears frivolous and fails to plead enough facts to be
plausible on its face. Suits against federal officers in their official capacity are really suits
against the government, and for these suits to go forward, the government must waive its
sovereign immunity. FDIC v. Meyer, 510 U.S. 471, 483, 114 S. Ct. 996, 127 L. Ed. 2d 308
(1994). Because there are no facts plead with respect to these defendants, there is no
need to further explore whether there has been a waiver of sovereign immunity.
The only remaining defendant is the Social Security Administration. Smith submits
that he has been denied the right to participate in the Plan to Achieve Self-Support (PASS)
and that he must repay “over ten thousand dollars in SSI benefits as a result of that racially
motivated refusal to allow him to participate in the PASS program.” It is unclear whether
Smith has a viable claim against Social Security Administration because there are
insufficient facts in the petition with respect to any decision by the administration.
Consequently, the court will grant Smith’s request for leave to amend. Now, therefore,
IT IS ORDERED that the Rule 12(b)(6) motion for dismissal of defendant Thomas
M. Barrett, Mayor of the City of Milwaukee, is granted. (Doc. 3.)
IT IS FURTHER ORDERED that Governor Walker’s Rule 12(b)(6) motion to dismiss
is granted. (Doc. 7.)
IT IS FURTHER ORDERED that the United States President is dismissed as a
defendant.
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IT IS FURTHER ORDERED that the United States Congress is dismissed as a
defendant.
IT IS FURTHER ORDERED that Smith may file an amended complaint on or before
April 29, 2013, clearly identifying any factual bases for a claim against the United States
Social Security Administration. Smith shall identify any decision by the administration,
including the date of that decision and whether he filed an administrative appeal. Failure
to file an amended complaint may result in the immediate dismissal of this action.
Dated at Milwaukee, Wisconsin, this 18th day of April, 2013.
BY THE COURT
/s/ C.N. Clevert, Jr.
C.N. CLEVERT, JR.
U.S. DISTRICT JUDGE
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