Smith v. Bender

FILED
United States Court of Appeals
Tenth Circuit

September 11, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT

KENNETH L. SMITH,

Plaintiff-Appellant,

v. No. 09-1003
(D.C. No. 1:07-CV-01924-MSK-KMT)
MICHAEL L. BENDER; NATHAN B. (D. Colo.)
COATS; GREGORY J. HOBBS, JR.;
REBECCA LOVE KOURLIS; ALEX
J. MARTINEZ; NANCY E. RICE;
MARY J. MULLARKEY; JOHN W.
SUTHERS; FRIEDRICK C. HAINES;
JOHN DOES 1-99; THE UNITED
STATES OF AMERICA,

Defendants-Appellees.

ORDER AND JUDGMENT *

Before TACHA, PORFILIO, and ANDERSON, Circuit Judges.

Kenneth L. Smith, proceeding pro se, appeals from the district court’s

opinion and final order dismissing his claims against the above-named defendants

*
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
therefore ordered submitted without oral argument. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
and denying his motion to recuse the district judge. Exercising jurisdiction under

28 U.S.C. § 1291, and having reviewed the district court’s rulings de novo, we

affirm.

I.

We begin by commending the district judge for her thorough and detailed

work in this case, and hereby adopt the following background statement from her

opinion and final order:

According to the original pro se Complaint . . . , the Plaintiff
was a litigant in the case of Smith v. Mullarkey, Denver District
Court Case No. 02-cv-127. In that case, the Plaintiff alleged claims
under 42 U.S.C. § 1983, among others, relating to the denial of his
admission to the bar of the State of Colorado. The Denver District
Court dismissed the Plaintiff’s case, ostensibly on the grounds that
the Colorado Supreme Court has the exclusive jurisdiction over
matters involving the licensing of persons to practice law. The
Plaintiff filed a timely appeal of the dismissal to the Colorado Court
of Appeals, but on August 16, 2005, the Court of Appeals found that
it lacked jurisdiction over the case-presumably for the same reason
stated by the District Court-and transferred the case to the Colorado
Supreme Court pursuant to C.R.S. § 13-4-110(1)(a). Although each
of the Justices of the Colorado Supreme Court were named as parties
in the case (apparently due to their oversight of the attorney
admissions process to which the Plaintiff objected), it found that
“[b]y operation of the Rule of Necessity, [Colorado Code of Judicial
Conduct,] Canon 3F,” the court could nevertheless hear the matter.
Smith v. Mullarkey, 121 P.3d 890, 891 n.1 (Colo. 2005). In that
same order, the Court affirmed the decision of the District Court on
its merits. Id. at 892.

The Complaint . . . in this action [was filed against the seven
Justices of the Colorado Supreme Court, the Attorney General and an
Assistant Attorney General of the State of Colorado, and the United
States, and it] expressly states four causes of action [relating to Smith
v. Mullarkey]: (i) a claim pursuant to 42 U.S.C. § 1983 that each of

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the Defendants violated [the Plaintiff’s] constitutional rights under
[the] Due Process and Equal Protection clauses; (ii) a claim
captioned as one for “denial of access to the courts,” but which
appears to assert a civil conspiracy among the Defendants, as a result
of which the Plaintiff was injured because . . . he was unable to
obtain the relief he sought in Smith v. Mullarkey; (iii) a claim for
“supervisory liability,” apparently asserted only against Defendant
Suthers (who, as Attorney General of the State of Colorado, appeared
on behalf of the defendants in Smith v. Mullarkey and allegedly
oversaw the actions of Defendant Haines, the Assistant Attorney
General who actually defended the case) because he failed to take
effective remedial action to prevent Defendant Haines from engaging
in a constitutional violation; and (iv) a claim against the United
States, alleging that it has failed to provide the Plaintiff with a
remedy for his grievances, thereby violating treaty obligations
created by the International Covenant on Civil and Political Rights
(“ICCPR”). The Plaintiff seeks money damages and unspecified
injunctive relief.

....

On February 6, 2008, the Plaintiff filed a pro se Amended
Complaint. . . . The Amended Complaint does not appear to modify
any of the first three claims asserted by the Plaintiff, but elaborates
substantially on the basis for the Plaintiff’s fourth claim under the
ICCPR. As best the Court can determine, the Plaintiff alleges that
the conduct violating his rights under the ICCPR include[s]: an
alleged criminal conspiracy, involving both the Defendants here and
other non-party judges of the District of Colorado and the 10th
Circuit Court of Appeals, to violate the Plaintiff’s constitutional
rights; the failure of non-party judges of the District of Colorado and
10th Circuit Court of Appeals to follow controlling Supreme Court
precedent when adjudicating cases brought by the Plaintiff; and the
“Systemic Discrimination Against Pro Se Litigants,” . . . . The
Amended Complaint also adds a new claim for relief, which purports
to seek “declaratory and/or injunctive relief, as appropriate,” but
which cites only to the Declaratory Judgment Act, 28 U.S.C. § 2201,
and requests “an appropriate declaration of his rights under the Bill
of Rights and/or the [ICCPR].”

....

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 The Plaintiff filed a Motion to Recuse . . . . In this motion, he
argues that the undersigned is also adjudicating another case in
which he is the plaintiff and the “United States District Court for the
District of Colorado” is named as a defendant, Smith v. Ebel, D.C.
Colo. Case No. 08-cv-00251-MSK-KMT. According to the Motion
to Recuse, the relief sought in Smith v. Ebel is an “injunction
compelling [District of Colorado] judges who handle this case to
adhere to a minimum standard of conduct,” and that “For this Court
to issue such injunctive relief, it would have to issue that injunction
to itself . . . and would logically warrant this Court’s recusal in this
matter.”

Smith v. Bender, 2008 WL 2751346 at *1, *3-4 (D. Colo. July 11, 2008)

(unpublished) (additional alterations added to original).

II.

In response to motions filed by defendants, the district judge dismissed all

of Mr. Smith’s claims with prejudice in a lengthy and extremely well-reasoned

opinion and final order. First, the judge determined that the doctrine of sovereign

immunity deprived the district court of subject matter jurisdiction over

Mr. Smith’s claims against the United States under the ICCPR. Id. at *6-7.

Second, because the relief Mr. Smith was seeking in this case could only be

granted by upsetting the Colorado Supreme Court’s decision in Smith v.

Mullarkey, the judge determined that the Rooker-Feldman doctrine deprived the

district court of subject matter jurisdiction over Mr. Smith’s claims against the

named Justices of the Colorado Supreme Court. 1 Id. at *8. Third, the judge

1
“The Rooker-Feldman doctrine prevents the lower federal courts from
(continued...)

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determined that the doctrine of qualified immunity barred Mr. Smith’s claims

against defendants Suthers and Haines. Id. at *11-14. In the same order, after

thoroughly analyzing the issue, id. at *4-6, the district judge also denied Mr.

Smith’s recusal motion, finding “no grounds to warrant recusal under [28 U.S.C.]

§ 455 in this case,” id. at *5. Because Mr. Smith has utterly failed to convince us

that any of the district judge’s rulings are erroneous, we affirm the dismissal of

Mr. Smith’s claims and the denial of his recusal motion for the reasons set forth

in the district judge’s opinion and final order. 2

In order to fully address the issues raised by Mr. Smith in this appeal,

however, we also point out the following fallacies in his arguments. First, to the

extent Mr. Smith is seeking to relitigate his federal-law challenges to the

Colorado Supreme Court’s denial of his admission to the bar of the State of

Colorado, those challenges are barred by the doctrines of res judicata and

collateral estoppel by virtue of: (1) this court’s final decision in Mr. Smith’s prior

appeal to this court, see Smith v. Mullarkey, 67 F. App’x 535, 538 (10th Cir.

2003) (applying Rooker-Feldman doctrine and holding that district court correctly

1
(...continued)
exercising jurisdiction over cases brought by state-court losers challenging
state-court judgments rendered before the district court proceedings commenced.”
Mann v. Boatright, 477 F.3d 1140, 1145 (10th Cir. 2007) (quotations omitted).
2
We also note that Mr. Smith has failed to challenge the dismissal of his
claims against defendants Suthers and Haines in his opening brief. Those claims
are therefore deemed abandoned or waived. See Coleman v. B-G Maint. Mgmt. of
Colorado, Inc., 108 F.3d 1199, 1205 (10th Cir. 1997).

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determined that it did not have subject matter jurisdiction over Mr. Smith’s

federal-law claims challenging the denial of his admission to the Colorado bar);

and (2) the fact that the United States Supreme Court denied Mr. Smith’s petition

for a writ of mandamus and/or prohibition pertaining to that final decision, see In

re Smith, 540 U.S. 1103 (2004).

Second, the Rooker-Feldman doctrine bars Mr. Smith from relitigating the

refusal of the Justices of the Colorado Supreme Court to recuse from his appeal in

Smith v. Mullarkey, 121 P.3d 890 (Colo. 2005). See Fieger v. Ferry, 471 F.3d

637, 644 (6th Cir. 2006) (holding that Rooker-Feldman doctrine barred subject

matter jurisdiction over attorney’s declaratory judgment claim to extent it sought

declaration that Michigan Supreme Court Justices’ refusal to recuse themselves in

his past cases violated his due process rights). 3 Because the recusal issue was

inextricably intertwined with the state-court judgment, Mr. Smith’s only available

avenue for relief was to seek certiorari review in the United States Supreme

Court. See 28 U.S.C. § 1257. Indeed, we note that Mr. Smith sought such

certiorari review of the recusal issue, see 2005 WL 3785452 at *5-11, but the

Supreme Court denied his certiorari petition, see Smith v. Mullarkey, 547 U.S.

1071 (2006).

3
Although the Rooker-Feldman doctrine would not bar a general
constitutional challenge to Colorado’s recusal statutes or rules as applied in future
cases, see Fieger, 471 F.3d at 644-46, Mr. Smith has not asserted such a
challenge in this case.

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 Third, the Supreme Court’s recent decision in Caperton v. A.T. Massey

Coal Co., 129 S. Ct. 2252, 2256-57 (2009) (holding that state-court-appellate

judge should have recused himself from appeal as matter of due process) is of no

assistance to Mr. Smith on the recusal issue. Importantly, Caperton was before

the Court on a petition for a writ of certiorari to review a decision of the West

Virginia Supreme Court of Appeals in a civil case brought in state court. Id. at

2257-59. Thus, while Caperton demonstrates the proper way for a state-court

loser to raise federal-law challenges to a state-court judge’s refusal to recuse, it

has no other applicability to this case.

Fourth, in the section of his opening brief entitled “Summary Of The

Argument,” Mr. Smith claims that, in Smith v. Mullarkey, the Justices of the

Colorado Supreme Court “violated his well-established federal right to have [his]

federal civil rights claims and/or facial challenges to a [state] statute grounded in

federal law decided in a state court of general jurisdiction.” Aplt. Opening Br. at

15 (citing Claflin v. Houseman, 93 U.S. 130 (1876)). Mr. Smith further argues

that “[t]his constitutes an ‘independent claim,’ which has always been outside the

ambit of the Rooker-Feldman doctrine.” Id. (citing Kenmen Eng’g v. City of

Union, 314 F.3d 468, 479-80 (10th Cir. 2002)). This is the only reference to this

claim in Mr. Smith’s opening brief, however, as it is omitted from the preceding

sections in the brief, and Mr. Smith likewise did not address it in the “Argument,”

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“Conclusion,” or “Statement Regarding Oral Argument” sections of the brief. 4 Id.

at 17-67. Despite his pro se status, we easily conclude that Mr. Smith has failed

to adequately brief this claim, and we therefore decline to address it. See Adler v.

Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998) (“Arguments

inadequately briefed in the opening brief are waived[.]”). Further, while we still

may possess discretion to consider this claim, we refuse to exercise such

discretion in favor of Mr. Smith given, as set forth below, the blatant disrespect

for the judicial process that he has demonstrated in this appeal. Cf. Garrett v.

Selby Connor Maddux & Janer, 425 F.3d 836, 840, 841 (10th Cir. 2005) (refusing

“to delve for substance in a pro se pleading” where the plaintiff’s appellate briefs

were written in a “scurrilous tone” and did “little more than attempt to impugn

(without basis) the integrity of the district judge”).

Fifth, we note that Mr. Smith has raised new allegations in this appeal

regarding the district judge’s alleged personal relationships with two Justices of

the Colorado Supreme Court. Even if appropriately raised for the first time on

appeal, an issue we do not need to decide, these new allegations do not support

recusal of the district judge because they are based on pure speculation.

4
We also note that Mr. Smith failed to make any specific arguments
pertaining to this claim in the reply brief that he submitted to this court. Instead,
his only reference to the claim is a conclusory, and unsupported, statement that
the “courts” within the Tenth Circuit have “defied” the Supreme Court’s decision
in Claflin “re: availability of state courts to vindicate federal claims.” Aplt.
Reply Br. at 24, 25.

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Specifically, the only thing Mr. Smith appears to know for sure is that: (1) the

district judge’s husband was a college classmate of Justice Hobbs and the two

worked at the same college radio station, see Aplt. Opening Br. at 51; and (2) the

district judge and Chief Justice Mullarkey hosted a luncheon together for the

National Association of Women Judges in May 2008, id. at 49-50. These meager

allegations do not come close to establishing a basis for recusal under 28 U.S.C.

§ 455(a) or (b), and the spurious inferences that Mr. Smith draws from them are

nothing but speculative guesswork. See, e.g., Aplt. Opening Br. at 51-52 (“Notre

Dame is widely reputed as having one of the most effective alumni networks in

the country, and it beggars the imagination to suggest that the two “Golden

Domers” who shared an eclectic hobby, lived in the same city, and traveled in the

same social circles would not have maintained a close personal friendship.”); id.

at 51 (“[O]rganizing presentations like the one [the district judge] and Justice

Mullarkey put on . . . falls to the member judges who are putting it on, and doing

so commands substantial effort. . . . Simply put, it is not the kind of project you

normally collaborate on with your worst enemy.”).

Finally, we note that Mr. Smith’s opening and reply briefs are littered with

frivolous and irrelevant arguments and tirades. His briefs also contain scurrilous

allegations and personal attacks regarding alleged wrongdoing by the named

Justices of the Colorado Supreme Court and the district judge. See, e.g., id. at 45

(“[T]he Defendant Justices were free to take several courses of action that would

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not have earned them a reservation in Leavenworth.”); id. at 61 (“Next in order of

severity is misprision of felony (18 U.S.C. § 4), the provision used in this Circuit

to ensnare Timothy McVeigh confederate Terry Nichols. All [the district judge]

had to ‘know’ is that her friends [on the Colorado Supreme Court] committed a

felony – which, given the facts she judicially noticed, is difficult to ignore – and

her failure to take action entitles her to three years in Club Fed.”); id. at 59-60

(“[The district judge] should have had the legal acumen to recognize that, by

using her good offices to help her husband’s old college chum get out of a pickle,

she was making her own personal reservation for a extended visit to

Leavenworth.”); id. at 60 (“By any objective measure, [the district judge] has

bought herself a rather large and juicy slab of criminal liability.”). We admonish

and warn Mr. Smith that if he files future appeals in this court containing similar

unsupported claims, allegations, or personal attacks, we will not hesitate to

impose hefty sanctions and filing restrictions in order to curb his abusive and

disrespectful litigation practices.

The district court’s opinion and final order is AFFIRMED.

Entered for the Court

John C. Porfilio
Circuit Judge

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