F I L E D

United States Court of Appeals

Tenth Circuit

MAR 9 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MICHAEL DUANE SMITH, proper party plaintiff,

Plaintiff-Appellant,

v.

ROBERT RUBIN, in private capacity; MARGARET

MILNER RICHARDSON, in private capacity;

WALTER A. HUTTON, Jr., in private capacity;

VIRGINIA P. WOOD, in private capacity; JOHN

DOE, JANE DOE, COURT CLERK, in private

capacity, United States Tax Court; ROY MASSEY, in

private capacity; SALLY LONGAN, in private

capacity; TIM WILHELM, in private capacity; TODD

HAWK, in private capacity; JEFFERY SHERRILL, in

private capacity; DARWYN DARL, in private

capacity; PAM C. BIGELOW, in private capacity;

GARY WASSOW, in private capacity; JOHN DOES,

and JANE DOES, in private capacity, who saw

statement submitted by Plaintiff, Michael Duane Smith

to: Internal Revenue Service, Inc.; PHIL BLIGHTON,

in private capacity; KEN SIPES, in private capacity;

MICHELLE DANKERS, in private capacity; CLARK

CARPENTER, in private capacity; TOM

SHERWOOD, in private capacity; DEBORAH S.

DECKER, in private capacity,

Defendants,

and

UNITED STATES OF AMERICA,

Defendant-Appellee.

No. 97-1242

(D.C. No. 96-D-2372)

(D. Colo.)
*

 This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

1

 Throughout the record the appellant variously signs documents as

"Michael Duane, Smith" and "Michael Duane Smith"; we will refer to him as Mr.

Smith.

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ORDER AND JUDGMENT*

Before SEYMOUR, BRORBY and BRISCOE, Circuit Judges.

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); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Michael Duane Smith 1

 appeals from an order of the United States District

Court for the District of Colorado denying Mr. Smith's request for a new Article

III judge; granting the Government's motion to dismiss and dismissing with

prejudice Mr. Smith's complaint; denying all of Mr. Smith's pending motions; and

quashing the subpoena served upon the district judge. We have jurisdiction
2

 Mr. Smith fails to inform this court that he also brought suit against

certain private officers and employees of a private bank in Colorado based on this

tax levy. See Smith v. Kitchen, 132 F.3d 43 (Order & Judgment), 1997 WL

768297 (10th Cir. 1997). We note Mr. Smith has failed to comply with 10th Cir.

R. 28.2 requiring a clear statement of whether there have been any prior or related

appeals in this case.

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pursuant to 28 U.S.C. § 1291, and we affirm. Furthermore, finding Mr. Smith's

claims frivolous, we invoke our power under Fed. R. App. P. 38 to order Mr.

Smith to show cause why he should not be sanctioned.

Background

Mr. Smith's suit arose after officials of the Internal Revenue Service (IRS)

executed a tax levy for $2,176.35 against his bank account. Mr. Smith brought an

action in district court against Secretary of the Treasury Robert Rubin and

numerous lesser officials of the IRS in their "private capacity" alleging fraud,

kidnaping, trespass, and a plethora of other violations of his rights. 2

 Mr. Smith

attempted to sue the named defendants pursuant to 18 U.S.C. §§ 1621, 1622 and

1623, and 42 U.S.C. §§ 1983, 1985, 1986, and 1988, seeking "declaratory

damages," compensatory damages, and other remedies, including costs and fees.

The Government substituted the United States as a party defendant,

pursuant to 28 U.S.C. § 2679 (d)(1). Simultaneously, the Government filed a
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motion to dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ.

P. 12(b)(1), for lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2),

for insufficiency of service of process pursuant to Fed. R. Civ. P. 12(b)(5), and

for failure to state a claim upon which relief could be granted pursuant to Fed. R.

Civ. P. 12(b)(6).

Mr. Smith filed a series of pleadings but failed to respond directly to the

Government's motion to dismiss.

In the interim, the case was referred to a magistrate judge to convene a

scheduling conference and dispose of various pretrial matters. Denying the

magistrate judge's authority to supervise the case, Mr. Smith failed to appear at a

scheduling/planning conference ordered by the magistrate judge.

Having reviewed carefully both Mr. Smith's original complaint and

subsequent pleadings, the district court denied Mr. Smith's motion for a new

Article III judge and granted the Government's motion to dismiss. The district

court dismissed the case with prejudice and denied all Mr. Smith's pending

motions. This appeal followed.
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Discussion

Issues on Appeal

Mr. Smith raises six claims on appeal: (1) the IRS agents violated Mr.

Smith's Fifth Amendment due process rights when they seized his bank account;

(2) the Secretary of the Treasury, the Commissioner of Internal Revenue, and the

District Directors are liable for the actions of their agents under the doctrine of

respondeat superior ; (3) the magistrate judge had no jurisdiction to decide the

case because Mr. Smith did not consent to have the case "tried" by the magistrate

judge; (4) the district court improperly denied Mr. Smith his constitutional right

to have "non-bar counsel"; (5) the district court variously erred in quashing

subpoenas, denying Mr. Smith the right to discovery and denying Mr. Smith his

right to a trial; and (6) the district court erred in rejecting Mr. Smith's claim there

is a substantive difference between "district courts of the United States" and the

"United States District Court," and that the latter lacks jurisdiction to hear

constitutional claims.

The Government's motion to dismiss asserted multiple grounds for

dismissal. We review de novo the dismissal of a case for lack of subject matter

jurisdiction. Fostvedt v. United States , 978 F.2d 1201, 1202 (10th Cir. 1992),

cert. denied , 507 U.S. 988 (1993). We review a district court's dismissal for
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failure to state a claim de novo . Chemical Weapons Working Group, Inc. v.

United States Dep't of the Army , 111 F.3d 1485, 1490 (10th Cir. 1997). Mr.

Smith's pro se complaint is reviewed by a cautious standard, applying the

principle of generous construction to his pleadings. Riddle v. Mondragon , 83

F.3d 1197, 1202 (10th Cir. 1996).

Turning first to the propriety of the district court's dismissal of Mr. Smith's

suit claiming various violations of his Fifth Amendment rights, we again note Mr.

Smith did not respond directly to the Government's motion to dismiss at the

district court level. Nor does he respond to the findings of the district court in

this appeal.

The district court determined Mr. Smith's suit against the United States was

barred by the doctrine of sovereign immunity. See Lehman v. Nakshian , 453 U.S.

156, 160 (1981) (doctrine of sovereign immunity bars suits against the United

States unless it has expressly consented to be sued). The district court, however,

went on to consider whether Mr. Smith might have a Bivens action, see Dahn v.

United States , 127 F.3d 1249, 1254 (10th Cir. 1997) (individual IRS agents not

subject to Bivens actions); see also Vennes v. An Unknown Number of

Unidentified Agents , 26 F.3d 1448, 1453-54 (8th Cir. 1994) (constitutional tort
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remedies generally unavailable against IRS agents), cert. denied , 513 U.S. 1076

(1995); whether the alleged facts demonstrated a constitutional violation, see

Blinder, Robinson & Co. v. United States Securities & Exchange Comm'n , 748

F.2d 1415, 1419 (10th Cir. 1984) (complaint alleging constitutional rights

violation must plead specific facts supporting the claim), cert. denied , 471 U.S.

1125 (1985); or whether Mr. Smith might have an action under the Federal

Employees' Liability Reform and Tort Compensation Act of 1988, see generally

28 U.S.C. § 2679(b)(1) (as amended); see Christensen v. Ward , 916 F.2d 1462,

1471-73, 1475 (10th Cir.) (IRS agents acting within the scope of employment

enjoy absolute immunity), cert. denied , 498 U.S. 999 (1990).

Having satisfied itself that Mr. Smith had no legitimate cause of action

under any available legal theory, the district court dismissed his suit with

prejudice. Having thoroughly reviewed the record, we see no error in this ruling. 

We agree with the analysis of the district court and cannot add to it in any

substantive manner.

Turning to Mr. Smith's ancillary allegations on appeal, he contends the

Secretary, the Commissioner, and the District Director are liable for the

purportedly unconstitutional actions of their subordinates under the doctrine of
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respondeat superior . The law provides otherwise. See Kaiser v. Lief , 874 F.2d

732, 736 (10th Cir. 1989) (holding doctrine of respondeat superior does not apply

to "an officer who has no affirmative link with the constitutional violation"); see

also Kite v. Kelley , 546 F.2d 334, 337 (10th Cir. 1976) (discussing "affirmative

link" requirement). In constitutional tort suits against federal officials for

monetary damages, as we have here, the complaint must allege the defendants

participated or acquiesced in the alleged unlawful conduct of their subordinates. 

Kite , 546 F.2d at 337. Mr. Smith made no allegation that these officials were

directly and personally involved in the events giving rise to this action, and they

were properly dismissed from the action.

Mr. Smith contends the magistrate judge lacked jurisdiction to hear the case

because Mr. Smith had not consented to have the case "tried" by a magistrate

judge. See Fed. R. Civ. P. 73(b) (consent requirement for civil trial jurisdiction);

28 U.S.C. § 636(c) (jurisdiction and authority of magistrate judge). However, the

order of reference to the magistrate judge was limited to nondispositive pretrial

matters for which Mr. Smith's consent is not required by law. See Fed. R. Civ. P.

72(a)-(b) (providing for magistrate judge to be assigned without the consent of

the parties to hear nondispositive pretrial matters); 28 U.S.C. § 636(b)(1)(A)-(B)

(same). As the record clearly demonstrates, the district court, not the magistrate
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judge, ruled on the Government's motion to dismiss, denied Mr. Smith's various

motions, and entered judgment. Therefore, the magistrate judge did not exceed

his jurisdiction in this matter, and Mr. Smith's consent was not required.

Mr. Smith next claims the district court improperly denied him his

constitutional right to have "non-bar counsel." The Constitution does not

guarantee a right to counsel in all situations; there is a presumed right to counsel

only in civil cases where the litigant's physical liberty is directly threatened. See

Garramone v. Romo , 94 F.3d 1446, 1449-50 (10th Cir. 1996) (discussing when

right to counsel arises in civil proceedings). Herein, Mr. Smith's liberty interests

were not threatened, thus the constitutional right to counsel did not arise. We

need not address his vacuous argument regarding the status of "non-bar counsel."

Mr. Smith also claims the district court erred in quashing subpoenas,

denying him the right to discovery, and denying him his right to a trial. The

record indicates discovery was stayed pending the district court's ruling on the

Government's motion to dismiss. The discovery issues arose here in the context

of a suit for damages against Government employees asserting qualified

immunity. In such suits, the defendant is entitled to dismissal before

commencement of discovery, unless the plaintiff's allegations state a claim of
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constitutional violation of clearly established law. Mitchell v. Forsyth , 472 U.S.

511, 526 (1985). Even when viewed with charity, Mr. Smith's pleadings allege no

such claim; thus we find no error.

Further, Mr. Smith is not entitled to a jury trial. Based on the allegations

of his complaint, the defendants are clearly immune from suit. Mr. Smith's

Seventh Amendment right to a jury trial was not abridged because his complaint

failed as a matter of law to present an issue for trial. See Fed. R. Civ. P. 12(b).

Finally, Mr. Smith makes an elaborate, albeit misguided, argument

challenging the jurisdiction of the district court, claiming a "United States District

Court" is different in kind from the "district courts of the United States." This

argument is poppycock.

The judgment of the district court is AFFIRMED in all respects.

Fed. R. Civ. P. 38 Sanctions

This court has the inherent power to impose sanctions to regulate the
3

 Generally, an "appeal is frivolous when 'the result is obvious or the

appellant's arguments of error are wholly without merit.'" Braley v. Campbell,

832 F.2d 1504, 1510 (10th Cir. 1987) (quoting Taylor v. Sentry Life Ins. Co., 729

F.2d 652, 656 (9th Cir. 1984)).

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docket, promote judicial efficiency and to deter frivolous filings. 3 See Van Sickle

v. Holloway , 791 F.2d 1431, 1437 (10th Cir. 1986); Betz v. United States , 753

F.2d 834, 835 (10th Cir. 1985). This court also has statutory power to impose

sanctions for frivolous appeals pursuant to 28 U.S.C. § 1912 and Fed. R. App. P.

38, both of which authorize an award of damages and single or double costs. We

recognize that Mr. Smith is appearing pro se , and we do not desire to unduly

burden him with sanctions, but this court need not endure baseless, repetitive

appeals, serving only to waste the resources of the court and the appellees.

In light of the district court's carefully considered order, Mr. Smith knew or

should have known his appeal, without more, was without merit. Moreover, Mr.

Smith's appeal here simply repeats claims deemed frivolous in his earlier suit

against bank officials, e.g. , the jurisdiction of the magistrate judge and the district

court, the right to "non-bar counsel," and the right to a jury trial. See Smith v.

Kitchen , 1997 WL 768297 at **3-4 (addressing similar claims).

Mr. Smith already has had an opportunity to respond to the imposition of
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sanctions in his earlier case. Id. at **4. We shall provide him with a similar

opportunity. See Fed. R. Civ. P. 38 (enunciating requirement that notice and

opportunity to respond must precede the imposition of sanctions).

Therefore, under Fed. R. Civ. P. 38, we order Mr. Smith to show cause why

he should not be sanctioned in the amount of $500.00, payable to the Clerk of the

United States Court of Appeals for the Tenth Circuit, as a small contribution to

the United States for the costs of this action. Furthermore, Mr. Smith is

prohibited from filing any further complaints in the United States District Court

for the District of Colorado, or any other appeals in this court, in any civil

matters, excluding habeas corpus petitions, until Mr. Smith has certified under

oath that he has satisfied this sanction. The clerks of those courts are directed to

return any such filings to Mr. Smith.

Accordingly, the clerk of this court is directed to issue an order requiring

Mr. Smith to show cause why the above sanctions should not be imposed. Mr.

Smith's response shall not exceed five pages. If the response is not received by

the clerk within ten days of the filing of this Order and Judgment, the sanctions

will be imposed.
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In summary, we AFFIRM the judgment of the district court in all respects,

and we order Mr. Smith to show cause why he should not be sanctioned for his

frivolous appeal.

Entered for the Court

WADE BRORBY

United States Circuit Judge