Smith v. Krieger

• Decision Date: 27 July 2010
• Docket Number: D.C. No. 1:09-CV-01018-PAB,No. 09-1503,D.C. No. 1:08-CV-00251-CMA-KMT,No. 10-1012,09-1503,10-1012
• Citation: Smith v. Krieger, D.C. No. 1:08-CV-00251-CMA-KMT, D.C. No. 1:09-CV-01018-PAB, No. 09-1503 (10th Cir. Jul 27, 2010)
• Parties: KENNETH L. SMITH, Plaintiff-Appellant, v. HON. MARCIA S. KRIEGER, in her official capacity as Judge of the United States District Court for the District of Colorado; THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO; THE TENTH CIRCUIT COURT OF APPEALS; THE COLORADO COURT OF APPEALS; THE SUPREME COURT OF COLORADO; JOHN DOES 1-99, Defendants-Appellees. KENNETH L. SMITH, Plaintiff-Appellant, v. STEPHEN H. ANDERSON; ROBERT R. BALDOCK; ROBERT E. BLACKBURN; MARY BECK BRISCOE; ROBERT H. HENRY; PAUL J. KELLY, JR.; MARCIA S. KRIEGER; MICHAEL W. MCCONNELL; STEPHANIE K. SEYMOUR; DEANELL REECE TACHA; JOHN DOES 1-20; WILEY Y. DANIEL; JUDGE DOE 21, in their representative capacities; UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

KENNETH L. SMITH, Plaintiff-Appellant,

v.HON. MARCIA S. KRIEGER, in her official capacity as Judge of the United States District Court for the District of Colorado;

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO;

THE TENTH CIRCUIT COURT OF APPEALS; THE COLORADO COURT OF APPEALS;

THE SUPREME COURT OF COLORADO; JOHN DOES 1-99, Defendants-Appellees.

KENNETH L. SMITH, Plaintiff-Appellant,

v.STEPHEN H. ANDERSON; ROBERT R. BALDOCK; ROBERT E. BLACKBURN;

MARY BECK BRISCOE; ROBERT H. HENRY; PAUL J. KELLY, JR.; MARCIA S. KRIEGER;

MICHAEL W. MCCONNELL; STEPHANIE K. SEYMOUR; DEANELL REECE TACHA;

JOHN DOES 1-20; WILEY Y. DANIEL; JUDGE DOE 21, in their representative capacities; UNITED

STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO, Defendants-Appellees.

No. 09-1503

D.C. No. 1:08-CV-00251-CMA-KMT

No. 10-1012

D.C. No. 1:09-CV-01018-PAB

United States Court Of Appeals For The Tenth Circuit

July 27, 2010

ORDER AND JUDGMENT^*

Before HOLMESand PORFILIO, Circuit Judges, and BRORBY, Senior Circuit Judge.

Jerome A. Holmes Circuit Judge

These appeals are the latest in a series of cases and appeals filed pro se by Kenneth L. Smith, 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.SeeSmith v. Mullarkey, 67 F. App'x 535, 536(10th Cir.2003)(Mullarkey I)(explaining denial of Mr. Smith's application);Smith v. Mullarkey, 121 P.3d 890, 891(Colo.2005)(Mullarkey II)(same).In No. 09-1503, Smith v. Krieger, the district court granted the defendants' motions to dismiss and denied Mr. Smith's post-judgment motion to alter or amend the judgment.In No. 10-1012, Smith v. Anderson, the district court granted thedefendants' motions to dismiss, denied Mr. Smith's post-judgment motion, and imposed filing restrictions.

This court, on its own motion, has consolidated these appeals for submission and disposition.Because Mr. Smith proceeded pro se in the district court and on appeal, we give his filings a liberal construction, but we do not act as his advocate, and his pro se status does not relieve him of complying with procedural rules applicable to all litigants.SeeGarrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840(10th Cir.2005).In Krieger, we conclude that we have jurisdiction over only the denial of his post-judgment motion, which we affirm, deeming that appeal frivolous.In Anderson, we conclude that we have jurisdiction over the district court's dismissal of his action and its order imposing filing restrictions, both of which we affirm.Further, based on Mr. Smith's abusive pattern of litigation, we impose a monetary sanction of $3,000 and appellate filing restrictions.

I. 09-1503, Smith v. Krieger

A.Background

In Smith v. Krieger, Mr. Smith filed a complaint in the United States District Court for the District of Colorado.He initially named the Honorable David M. Ebel as a defendant in his official capacity, apparently with an eye to policing Judge Ebel's handling of another case Mr. Smith had filed in that district, Smith v. Bender, No. 1:07-cv-01924-MSK-KMT(filed Sept. 12, 2007).

See Aplt.Opening Br.at 17("this lawsuit was filed with the purpose of attempting to prevent what happened in [Bender]").Mr. Smith also named the district court and this court(the Federal Defendants), the Colorado Court of Appeals and the Colorado Supreme Court(the StateDefendants), and 99 John Does as defendants.The case was drawn to Judge Ebel, who recused himself, and reassigned to the Honorable Marcia S. Krieger.After Judge Ebel recused himself in Bender, that case was assigned to Judge Krieger.Mr. Smith then filed an amended complaint in this case, substituting Judge Krieger in her official capacity for Judge Ebel.

Mr. Smith's amended complaint was based on allegations that "[d]efendants' practices of issuing 'designer law'(opinions applicable to one and only one set of defendants), issuing so-called 'unpublished' opinions (opinions declared to be devoid of precedential effect), and issuing opinions that fabricate and/or elide key facts" exceeded judicial power as defined in Article III of the Constitution and deprived him and similarly situated citizens of their right of access to the courts and to due process under the First, Fifth, and FourteenthAmendments. R., Vol. 1 at 488-89, ¶¶ 104, 108.He also alleged that defendants violated his right to equal protection by treating "all pro se cases... shabbily and superficially."Id. at 488, ¶ 106(internal quotation marks omitted).He requested a declaration that defendants violated these rights as alleged, and preliminary and permanent injunctions prohibiting them from issuing orders or decisions (1) without addressing all legal arguments or factual contentions in a manner sufficient to facilitate adequate appellate (and, in this court, en banc) review; (2) without providing a rationale for any deviation from controlling precedent "sufficient to ensure that an appellate court and the general public will be aware of the variance"; and (3)"designated as being without precedential effect."Id. at 490-91.

After being named as a defendant in this case, Judge Krieger recused herself and filed a motion to dismiss.The Federal Defendants and the StateDefendants also filed motions to dismiss.A magistrate judge issued a recommendation that defendants' motions be granted for a variety of reasons and that Mr. Smith's motion for injunctive and declaratory relief be denied.Mr. Smith filed objections.The district court modified the recommendation and adopted it, granting defendants' motions, denying Mr. Smith's motion, and dismissing the case in its entirety.With respect to Judge Krieger and the Federal Defendants, the district court determined that they were protected by sovereign immunity, a "concept [that] has long been firmly established by the Supreme Court, see, e.g., Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 411-12(1821),"Smith v. Krieger, 643 F. Supp. 2d 1274, 1280(D. Colo.2009).The court also concluded Mr. Smith had failed to show a waiver of the Federal Defendants' or Judge Krieger's sovereign immunity.The court further explained that to the extent Mr. Smith's complaint could be read as requesting relief against thosedefendants under the mandamus provision of 28 U.S.C. § 1361, this court had determined in Trackwell v. United States Government, 472 F.3d 1242, 1245-46(10th Cir.2007), that § 1361 does not confer district-court jurisdiction over the federal courts or their judicial officers.

As to the StateDefendants, the court concluded it lacked power to direct them in the performance of their judicial duties, seeVan Sickle v. Holloway, 791 F.2d 1431, 1436 n.5(10th Cir.1986), and that Mr. Smith's allegation that the Colorado Supreme Court's adverse decision in Mullarkey II was rendered without jurisdiction was no bar to the application of the Rooker-Feldman doctrine¹ to his present claims because "'there is no procedural due process exception to the Rooker-Feldman rule.'"Krieger, 643 F. Supp. 2d at 1283(quotingSnider v. City of Excelsior Springs, Mo., 154 F.3d 809, 812(8th Cir.1998)).

The district court's order was filed on August 3, 2009, and its separate judgment on August 4, 2009.On August 21, 2009, Mr. Smith filed a motion titled "Rule 59(e) Motion to Alter or Amend Judgment"(the Post-Judgment Motion), and he later moved for a hearing on the motion.The district court denied both motions on September 9, 2009, concluding that in his Post-Judgment Motion, Mr. Smith had simply reargued his case, which was not an appropriate basis for relief under Rule 59(e), and that a hearing was unnecessary.

Mr. Smith filed his notice of appeal (NOA) on November 6, 2009.In its substantive entirety, the NOA read:

NOTICE IS HEREBY GIVEN that Kenneth L. Smith, Plaintiff in the above-captioned case, hereby appeals to the United States Court of Appeals for the Tenth Circuit from the Final Judgment entered herein on August 4, 2009(post-judgment motions disposed of on September 9, 2009).

R., Vol. 2at 451.

B.Discussion

1.Appellate Jurisdiction

Although none of the appellees have expressed concern about the effect that the timing of Mr. Smith's Post-Judgment Motion or the substance of his NOA has on our jurisdiction over this appeal, we have an obligation to analyze our jurisdiction sua sponte.SeeAmazon, Inc. v. Dirt Camp, Inc., 273 F.3d 1271, 1274(10th Cir.2001).Under Rule 4 of the Federal Rules of Appellate Procedure, "the timely filing of a notice of appeal in a civil case is a jurisdictional requirement."Bowles v. Russell, 551 U.S. 205, 214(2007).And under Rule 3(c)(1) of those Rules, a "notice of appeal must... specify the party or parties taking the appeal,""designate the judgment, order, or part thereof being appealed," and "name the court to which the appeal is taken."Fed. R. App. P. 3(c)(1)."Rule 3's dictates are jurisdictional in nature, and theirsatisfaction is a prerequisite to appellate review.Although courts should construe Rule 3 liberally when determining whether it has been complied with, noncompliance is fatal to an appeal."Smith v. Barry, 502 U.S. 244, 248(1992).Thus, to confer jurisdiction on this court, a document must be filed within the time specified by Rule 4 and provide the notice required by Rule 3.

Although it is clear from his NOA that Mr. Smith intended to appeal to this court, the NOA is not timely with respect to the district court's underlying judgment, and it is debatable whether he adequately designated the order denying his Post-Judgment Motion as an object of his appeal.We first address timeliness.

Because Mr. Smith did not file his Post-Judgment Motion within ten days of the district court's judgment, excluding intervening weekend days and holidays, seeFed. R. Civ. P. 6(a)(2)(2009), ²we treat it as a motion brought under Rule 60(b) rather than one brought under Rule 59(e).SeePrice...