415 F. App'x 57

10th Cir.

2011

Kenneth L. SMITH, Plaintiff--Appellant, v. Honorable Christine M. ARGUELLO; Stephen H. Anderson; Bobby R. Baldock; James E. Barrett; Robert E. Blackburn; Mary Beck Briscoe; William J. Holloway, Jr.; Marcia S. Krieger; Edward W. Nottingham; John C. Porfilio; Stephanie K. Seymour; Deanell Reece Tacha; Terry Fox; Stephen J. Sorenson, John/Jane Does 1-50, in their personal capacities only; Lloyd Clark; Eric H. Holder, Jr.; David Gaouette; Jeanette Swent; Edward Zahren, John/Jane Does 51-99, in their official capacities only, as representatives of; United States Department of Justice, Defendants-Appellees.

No. 10-1280

United States Court of Appeals, Tenth Circuit

Feb. 15, 2011

begin to exhaust his administrative remedies until after the limitations period had already expired. Consequently, his exhaustion of administrative remedies, however diligent, did not toll the limitations period. See cf. Fisher, 262 F.3d at 1142-43. He is not entitled to administrative tolling.

D. Equitable Tolling

Assuming equitable tolling even applies in this case,¹⁰ a petitioner is entitled to equitable tolling only if he demonstrates (1) he diligently pursued his rights and (2) some extraordinary circumstance prevented his timely filing. See Holland v. Florida, — U.S. —, 130 S.Ct. 2549, 2560, 2562, 177 L.Ed.2d 130 (2010) (holding statute of limitations period defined in 28 U.S.C. § 2244(d) is subject to equitable tolling). Titsworth has failed to satisfy either prong.

We have already concluded that although Titsworth may have diligently pursued his rights, he did not timely do so, having waited over a year after learning he was not receiving enhanced credits to file his first “Request to Staff.” Moreover, after his “Request to Staff” was denied, he waited two more months before he allegedly wrote a letter to the ODOC‘s attorney regarding the matter and another four months before he wrote to the ODOC‘s sentence administrator and Judge Norman. Although he received responses from the sentence administrator and Judge Alford‘s orders. While such facts may excuse a short delay, they hardly support a year delay.

Judge Norman by the end of January 2008, Titsworth waited another six months, until July 10, 2008, to file another “Request to Staff.” These significant time gaps do not demonstrate the required diligence. Titsworth has also not alleged, nor shown, that some extraordinary circumstance beyond his control prevented him from timely filing his § 2241 petition.

The abbreviated record before us suggests the ODOC and the Oklahoma state courts may have been insufficiently attentive to his arguments. Nevertheless, Titsworth here seeks a federal remedy, upon which strict time limits apply. While he may have diligently pursued his claim once he undertook to do so, he started too late. Our sympathy for his circumstances cannot trump positive law.

We DENY a COA and DISMISS this matter.

Kenneth L. Smith, Golden, CO, pro se.

Paul Farley, Office of the United States Attorney, Denver, CO, for Defendants-Appellees.

* 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 and Mr. Smith‘s “demand” for oral argument is denied. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

Before MURPHY, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and HOLMES, Circuit Judge.

ORDER AND JUDGMENT*

JEROME A. HOLMES, Circuit Judge.

Since 2003, Kenneth L. Smith has been filing unsuccessful cases and appeals in federal court, all of which “can be traced to the Colorado Supreme Court‘s denial of his application for admission to the Colorado bar after he refused to submit to a mental status examination.” Smith v. Krieger, 389 Fed.Appx. 789, 791 (10th Cir.2010), petition for cert. filed (U.S. Dec. 21, 2010) (No. 10-837).¹ The present appeal concerns the dismissal of claims brought under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 395-96, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), against current and former federal district and circuit judges, the United States Attorney General, employees of the United States Marshal Service; members of the United States Attorney‘s Offices for the Districts of Colorado and Utah; and numerous Jane and John Does. The case is another milestone along his well-trod “futile path.” Krieger, 389 Fed.Appx. at 800. We affirm the order of the district court dismissing the matter with prejudice.²

I.

For his complaint in this case, Mr. Smith set forth two claims. First, he asserted that the prior decisions against him were so wrong-headed that they amounted to violations of his constitutional rights and criminal conduct on the part of the named judges. He theorized that “if [an] absurd decision is permitted to stand, there is no difference between [a judge] and Saddam Hussein, and that we as citizens have both a legal right and a moral duty to assassinate our federal judges.” R. at 42. Mr. Smith‘s view is that federal judges have become “tyrants,” id. at 64, and “[t]he legal and moral right to kill a tyrant is as old as Anglo-American society itself,” id. at 60 (footnote omitted). “As judges have become a law unto themselves, they have abandoned any protections they might otherwise enjoy under law and the lowly citizen... is legally entitled to use lethal force against them, as the law can provide no shelter against the gales of their unbridled tyranny.” Id. at 65.

Similar rhetoric in Mr. Smith‘s previous cases led to the facts underlying his second claim. His complaint stated that United States Marshals came to his home and informed him that “he was placed on a ‘threat list,‘” causing him to feel “threatened, oppressed, and intimidated.” Id. at 43. Later, “when [he] attempted to enter the ... Courthouse for the lawful purpose of filing documents, [he] was detained and then, escorted to the file room by a United States Marshal.” Id. at 69. This treatment “humiliated and intimidated” him. Id. He alleged that the actions of the marshals and the district judges restricted his rights of free speech and access to the courts.

For several reasons, the district court dismissed both of Mr. Smith‘s Bivens claims against all defendants. Because the judges were sued for their legal decisions in previous suits, they were entitled to absolute judicial immunity. See Whitesel v. Sengenberger, 222 F.3d 861, 867 (10th Cir.2000) (summarizing the basis for the application of judicial immunity even in instances in which the judge‘s action “was in error, was done maliciously, or was in excess of his authority“) (quotation omitted). And the named Assistant United States Attorneys, who represented defendants in Mr. Smith‘s previous suits, were not linked to a deprivation of his constitutional rights. See Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir.2008) (stating that a “complaint‘s use of... a list of defendants named... with no distinction as to what acts are attributable to whom, [makes it] impossible for any of these individuals to ascertain what particular unconstitutional acts they are alleged to have committed“).

Moreover, the Department of Justice officials were named in their official capacities, and a Bivens action only “lies against [a] federal official in his individual capacity.” Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1231 (10th Cir. 2005). Further, the complaint failed to plead that each of these defendants violated the Constitution through their “own individual actions.” Ashcroft v. Iqbal, — U.S. —, 129 S.Ct. 1937, 1948, 173 L.Ed.2d 868 (2009).

As a final matter, the district court succinctly disposed of any claim arising from the marshals’ interactions with Mr. Smith. Most importantly, the court‘s order stated “[a]ny implied argument that the First Amendment prevents the U.S. Marshals Service from informing [Mr. Smith that he was on a threat list] or investigating a threatening statement made to a federal judge is meritless.” R. at 222. What is more, the complaint allegations did not “suggest that being put on a threat list or being escorted to the clerk‘s office ‘would chill a person of ordinary firmness’ in the exercise of constitutionally protected speech.” Id. at 223 (quoting Smith v. Plati, 258 F.3d 1167, 1177 (10th Cir.2001)). In any event, none of the alleged conduct prevented Mr. Smith from filing his submissions or “expressing himself in such pleadings, as the present lawsuit aptly demonstrates.” R. at 223.

Concluding that Mr. Smith‘s complaint failed to state a claim upon which relief could be granted, the district court dismissed the matter. The court entered the dismissal with prejudice and without leave to amend because “there [was] no reason to believe that plaintiff will be able to allege facts to support a viable legal claim.” Id. at 224; see Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir.2006) (“A dismissal with prejudice is appropriate where a complaint fails to state a claim under Rule 12(b)(6) and granting leave to amend would be futile.“).

II.

We call Mr. Smith‘s attention to the filing restrictions and $3,000 sanction imposed in Krieger, 389 Fed.Appx. at 800-801, for “persist[ence] in making unsupported allegations of judicial corruption, baseless claims, and personal attacks on federal and state-court judges.” See also Order, No. 09-1503 (10th Cir. Aug. 11, 2010) (concluding that Mr. Smith had failed to show cause why the monetary sanction should not be imposed). We are disquieted by his continued use of “vulgar language, threats of lethal violence against judges rendering decisions he considers tyrannical, and tirades on a number of irrelevant topics.” Krieger, 389 Fed.Appx. at 800. Under certain circumstances, a party may forfeit his right to appellant review by making such statements. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.2005) (stating that the “scurrilous tone” of appellant‘s briefs and lack of substantive argument convinced the court “to refrain from exercising any discretion [it] may have to delve for substance in a pro se pleading“).

Nevertheless, we review de novo the dismissal of Mr. Smith‘s case for failure to state a claim. See Howard v. Waide, 534 F.3d 1227, 1242-43 (10th Cir.2008). On appeal, Mr. Smith asks this court to renounce firmly established law: the doctrines of judicial immunity, and issue and claim preclusion, as well as procedural rules permitting the disposition of a civil case without a jury trial. We reject Mr. Smith‘s request. For substantially the same reasons relied upon by the district court, we AFFIRM the dismissal of Mr. Smith‘s complaint for failure to state a claim. We also conclude that the district court properly entered the dismissal with prejudice.

JEROME A. HOLMES

UNITED STATES CIRCUIT JUDGE

Notes

See (affirming dismissal of claims that challenged federal judges’ decisions, sought removal of judges, and attempted prosecution of crimes allegedly committed by judges and also affirming district-court filing restrictions); see also (denying request for mandamus relief compelling the United States Supreme Court to grant certiorari petitions); (affirming dismissal of action against Justices of the Colorado Supreme Court and other governmental officials and denial of motion to recuse district judge); (holding that Mr. Smith lacked standing to challenge use of non-precedential unpublished decisions to dispose of appeals and denying mandamus relief); (determining that federal court lacked jurisdiction to consider denial of Mr. Smith‘s bar application).

After Mr. Smith filed this appeal, we resolved an earlier appeal and also imposed filing restrictions to deter his frivolous pro se appeals and increasingly “‘abusive and disrespectful litigation practices.‘” (quoting ). Accordingly, any future pro se filings by Mr. Smith will be subject to those filing restrictions.

We have not expressly held that equitable tolling applies in cases involving § 2241 petitions. However, we have applied it in a number of such cases. See ; see also, e.g., (unpublished); (unpublished). We have also held that § 2241 petitions are subject to the one-year limitations period set forth in 28 U.S.C. § 2244(d)(1), see , which the Supreme Court recently held is subject to equitable tolling. See (holding statute of limitations period defined in 28 U.S.C. § 2244(d) is subject to equitable tolling).

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