Smith v. Scalia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

__________________________________
)
KENNETH L. SMITH, )
)
Plaintiff, )
)
v. ) Civil Action No. 13-CV-0298 (KBJ)
)
HONS. ANTONIN G. SCALIA, et al., )
)
Defendants. )
)
_________________________________ )

MEMORANDUM OPINION

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. ¶¶ 601-

617.)
 Before this Court at present are two motions to dismiss the amended complaint.

(ECF Nos. 36, 37.) 1 In their motions, Defendants contend that the complaint must be

dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject

matter jurisdiction and also pursuant to Rule 12(b)(6) for failure to state a claim upon

which relief can be granted. (See Mem. in Supp. of Mot. to Dismiss of the D.C. Court

Defs. (“D.C. Defs.’ Mem.”), ECF No. 36-1, at 3, 10-22; Non-D.C. Defs.’ Mot. & Mem.

of Law in Supp. of Mot. to Dismiss (“Non-D.C. Defs.’ Mot.”), ECF No. 37, at 14-23.) 2

In particular, Defendants argue that absolute and sovereign immunity bar Smith’s

claims; that no cause of action exists for several of the claims Smith alleges; and that,

in any event, certain of Smith’s claims are entirely precluded by both res judicata and

issue preclusion because the complaint raises claims that previous courts have already

heard and rejected. (D.C. Defs.’ Mem. at 10-22; Non-D.C. Defs.’ Mot. at 14-23.)

Additionally, Defendants ask the Court to impose a pre-filing injunction against Smith

in order to bar him from initiating any new pro se actions in this Court without first

obtaining leave to file. (D.C. Defs.’ Mot. ¶ 10; Non-D.C. Defs.’ Mot. at 6.) The Non-

D.C. Defendants—i.e., the United States and the individual defendant judges who are

not appointed to the United States courts for the District of Columbia—also seek

monetary sanctions. (Non-D.C. Defs.’ Mot. at 6.)

1
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 “Non-
D.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.)
2
Page numbers throughout refer to the number assigned by the Court’s electronic filing system.

2
 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.

I. BACKGROUND

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

3
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. 10-
0078 (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.

3
appeal of three such cases, and will not be repeated here. See Smith v. Krieger, 389 F.

App’x 789, 792-93 (10th Cir. 2010). In short, after the Colorado Supreme Court denied

his application for bar membership, Smith brought suit against the Colorado Supreme

Court justices in federal court in the District of Colorado and in Colorado State court

seeking to overturn that decision. See id. at 791. The U.S. District Court in the District

of Colorado dismissed the complaint; the Tenth Circuit affirmed the dismissal on

appeal; and the Supreme Court of the United States denied certiorari. See id. at 791-

92, 799-800. Smith then filed suit against the judge on the U.S. District Court for the

District of Colorado who decided the matter, and each of the Tenth Circuit judges and

Supreme Court justices who were involved in upholding the dismissal decision. See id.

This pattern repeated itself in Colorado district court eight more times—in effect, each

time a court rendered an opinion unfavorable to Smith, he responded by filing a new

lawsuit naming the authors of the prior judicial opinions as defendants and alleging that

those judges, too, had violated his constitutional rights. See id. at 791-92. Moreover,

in several of the cases, Smith specifically requested that the federal judges who ruled

against him be removed from the bench “due to their alleged failure to maintain the

‘good Behaviour’ required for continued tenure under Article III,” and he also claimed

an alleged right to prosecute the defendant judges pursuant to authority he maintains is

vested in him under the Ninth and Tenth Amendments, id. at 796—claims that Smith

brings again now. In addition, Smith’s sole attempt to bring suit in Colorado state court

fared no better: the Denver County District Court dismissed the case on the grounds

that it lacked jurisdiction to consider challenges to the state supreme court’s decisions

regarding bar admission; the Colorado Supreme Court affirmed dismissal; and the

4
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

4
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).

5
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

5
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).

6
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. ¶¶ 621-

6
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.

7
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

7
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.)

8
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.

II. LEGAL STANDARDS

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.

9
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

(D.D.C. 2001).

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

10
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, the-

defendant-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.

11
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).

III. ANALYSIS

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

12
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

13
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

capacity.

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

14
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.

15
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.

8
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).

16
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

17
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

at 463.

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

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).

18
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

10
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)).

19
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.

20
 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

citations omitted).

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

21
“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.

22
 C. There Is No Cause Of Action Available For The Non-Monetary Relief
Plaintiff Seeks
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

23
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

24
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. §§ 515-

519, 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.”

11
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).

25
(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.

IV. 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;

12
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.)

26
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

27
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

28
Court does believe that this is an appropriate case for the imposition of a pre-filing

injunction.

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

29
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,

30
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

13
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[.]”).)

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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.

V. CONCLUSION
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.

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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.

Date: May 26, 2014 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge

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