SMITH v. Commonwealth of Va.
| Decision Date | 08 April 2011 |
| Docket Number | Civil Action No. 3:10cv881 |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | WESLEY EDWARD SMITH, III, Plaintiff, v. COMMONWEALTH OF VIRGINIA, et al., Defendants. |
OPINION TEXT STARTS HERE
These matters are before the court on ROBERT A. DYBING'S MOTION TO DISMISS (Docket No. 9), Defendant J. Kirk Courcey Showalter's MOTION TO DISMISS (Docket No. 15), the MOTION TO DISMISS (Docket No. 18) filed by Governor Bob McDonald [properly, Robert F. McDonnell], Kenneth T. Cuccinelli, II, Catherine Crooks-Hi11 and the Commonwealth of Virginia (collectively "Virginia Defendants"), the MOTION FOR SANCTIONS (Docket No. 24) filed by Robert A. Dybing, and DEFENDANT HILL'S MOTION FOR SANCTIONS (Docket No. 33). For the reasons set forth below, all motions will be granted.
Wesley Edward Smith, III, attempted to register to vote in Virginia for the 2008 presidential election. See Mem. in Support of Defendant[] Showalter's Mot. to Dismiss at 4. Smith filled out the voter registration form twice and registration was denied both times. Id. at Ex. A. When he attempted to vote in the election, he was precluded from doing so because he was not registered to vote. Id. Smith appealed the denial of his registration and the ensuing refusal to let him vote to the Circuit Court of the City of Richmond. Id. On December 10, 2008, that court affirmed the registration decision and rejected the claim involving the refusal to allow Smith to vote because Smith had failed properly to complete the voter registration form. Id.
Thereafter, on December 28, 2008, Smith filed an action in this Court against the Commonwealth of Virginia, Governor Tim Kaine, the Virginia State Board of Elections, and J. Kirk De Courcey Showalter, Robert A. Dybing and James V. Ingold, alleging that the defendants had violated 42 U.S.C. § 1983 when they deprived him of his right to vote. Robert A. Dybing's Mem. in Support of Mot. to Dismiss at 3, Ex. A. The Court eventually dismissed Smith's Third Amended Complaint for failure to state a claim. The dismissal was with prejudice and without leave to amend. See id. at Ex. B. Smith appealed that decision and the United States Court of Appeals for the Fourth Circuit affirmed. Id. at Ex. C. Smith did not seek review in the Supreme Court of the United States. Id. at 3.
After the Fourth Circuit's decision, Smith filed several more actions in Virginia state courts and in the United States District Court for the Southern District of New York, all alleging the same violations of his voting rights that he had presented to this Court. See Defendant Hill's Mem. of Law in Support of Mot. for Sanctions at 2-4, Exs. A-G, I-K. Those cases were all dismissed. Id. In the most recent of those cases, the Circuit Court for the City of Richmond imposed sanctions against Smith, including an injunction preventing him from filing future actions in that court without the court's permission. Id.
Smith once again has filed an action in this Court. The Complaint is vague, bereft of factual assertions, and laden with conclusions. However, its core is that Compl. at ¶ 5. That, of course, is the gravamen of the case which he filed in this Court on December 28, 2008, and which was reviewed by the Fourth Circuit. Many of the defendants are the same as in this case, e.g., the Commonwealth of Virginia, Governor Tim Kaine (former Governor), Mrs. Showalter, Mr. Dybing, and the Virginia Registrar. To that list, Smith has added Virginia's current Governor, the Honorable Bob McDonald [sic], Virginia Attorney General, Kenneth T. Cuccinelli, II, and Catherine Crooks-Hill, an attorney who filed a special appearance and a motion to quash service of process in Smith's latest case in the Circuit Court of the City of Richmond.
Each defendant has filed a motion to dismiss. Dybing has filed a motion to dismiss alleging that the Complaint fails to state a claim under Fed. R. Civ. P. 12(b)(6) and that any claims are barred by res judicata and the statute of limitations. Showalter has filed a motion to dismiss based on the same grounds. The Virginia Defendants have filed a motion to dismiss based on those same grounds and on Fed. R. Civ. P. 12(b)(1) because this Court has no subject matter jurisdiction to hear Smith's claims.
Smith has filed a brief opposing the various motions to dismiss, and he has filed various other documents arguing that the Complaint should not be dismissed. None of those documents filed by Smith clarify the exact nature of the cause of action or why the Complaint should not be dismissed. Each simply repeats the claims in the Complaint and reiterates that the suit should be allowed to proceed.
Defendants Dybing and Crooks-Hill have also moved for sanctions against Smith under Fed. R. Civ. P. 11 in the form of a pre-filing injunction preventing him from filing any future suits against any of the Defendants without leave from the Court.
The Virginia Defendants assert that the Court lacks subject matter jurisdiction first because the Complaint shows on its face that there is no diversity jurisdiction, a jurisdictional ground asserted in the Complaint. On that score, the Virginia Defendants are plainly right. Virginia is not a citizen of any state. See State Highway Com. Of Wyoming v. Utah Constr. Co., 278 U.S. 194, 200 (1929). Because Virginia is not a citizen of any state, it cannot be diverse with any plaintiff and Smith's claims against the Virginia Defendants may not proceed based on diversity jurisdiction.
The Virginia Defendants also argue that the Complaint asserts no federal question. The Virginia Defendants are right on that score as well. Smith says that he is proceeding under 42 U.S.C. § 1983. Of course, that statute creates no substantive rights. But, Section 1983 does permit federal courts to adjudicate claims that seek redress for violations of federal constitutional or federal statutory rights. Smith fails to set forth in his Complaint a single federal constitutional or statutory right, much less a violation of such right. The only law that Smith specifically alleges to have been violated is a Virginia statute: "This is an action pursuant to 8.01-277 of the Code of Virginia.''1 Compl. at ¶ 4. The Complaint also refers to, and attaches as its Exhibit A, an Order entered by the Circuit Court of the City of Richmond wherein that court denied Smith's Motion to Vacate Judgment and Dismiss the court's previous order which granted the "Commonwealth's Motion to Quash Service of Process and Motion to Dismiss," Compl. at Ex. A, which appears to address topics that are addressed in Va. Code Ann. § 8.01-277. Because the only law alleged to have been violated is a Virginia statute, the Complaint seeks to use 42 U.S.C. § 1983 to seek redress for the violation of a state law. Section 1983 may not be used for such purposes and the Complaint therefore fails to present a federal question. Thus, there is no federal question jurisdiction.
The fact that the Complaint talismanically, and in conclusory fashion, mentions the federal constitution and a federal law does not convert the case into one that presents a federal question where, as here, the Complaint actually recites (rightly or wrongly) that it proceeds on the basis of a specific state statute. Nor does the Complaint even hint that either the cited state statute itself or Virginia's alleged failure to conform with the state statute's requirements offends either the federal constitution or a federal statute.2
Finally, the type of relief that Smith seeks also precludes this Court's subject matter jurisdiction. Even if one could cobble together a federal question out of the almost incoherent Complaint, the best that could be said is that Smith seeks money damages from the Commonwealth and various of its officials acting in their official capacities. The Eleventh Amendment deprives the Court of jurisdiction over such claims. U.S. Const. amend. XI. While Smith mentions the possibility of equitable relief in the prayer for relief, nothing in the text of the Complaint would remotely support injunctive relief against an ongoing violation of federal law.
For the foregoing reasons, the MOTION TO DISMISS (Docket No. 18) filed by the Commonwealth of Virginia and Governor Bob McDonald [properly Robert McDonnell] , Kenneth T. Cuccinelli, II, and Ms. Catherine Crooks-Hill will be granted for lack of subject matter jurisdiction.
The doctrine of res judicata prevents plaintiffs from re-litigating claims that have already been subject to judgment on the merits. Preclusion by res judicata requires three elements: "(1) a judgment on the merits in a prior suit resolving (2) claims by the same parties or their privies, and (3) a subsequent suit based on the same cause of action." Aliff v. Joy Mfg. Co., 914 F.2d 39, 42 (4th Cir. 1990). Even if the plaintiff is not proceeding on the same legal theory advanced in the first suit, the first suit will preclude the second if "the second suit 'arises out of the same transaction or series of transactions as the claim resolved by the prior judgment....'" Ohio Valley Envtl. Coal, v. Aracoma Coal Co., 556 F.3d 177, 210 (4th Cir. 2009) (citing Aliff, 914 F.2d at 43). Dismissal based on Rule 12(b)(6) is "a judgment on the merits, and therefore triggers claim preclusive and res judicata effect." Enzo Therapeutics v. Yeda Research and Dev. Co., 467 F.Supp. 2d 579, 585 (E.D. Va. 2006) (citing Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 399 n. 3 (1981)).
Any claim of action based on Virginia's allegedly having deprived Smith of his voting rights is barred by...
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