## 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 Smi th 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 No. 97-1242 (D.C. No. 96-D-2372) (D. Colo.)*This order and judgment is not binding precedent except under the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 judicataand collateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

1 Throughout the record the appellant variously sig ns documents as "Michael Duane, Smith" and "Michael Duane Smith"; w e will refer to him as Mr. Smith.
-2- ORDER AND JUDGMENT *
Before SEYMOUR, BRORBYand BRISCOE , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.

Michael Duane Smith 1 appeals from an order of the United States Distric t Court for the District of Colorado denying Mr. Smith's request for a new Article III judge; granting the Government's motion to dism iss and dismissing with prejudice Mr. Smith's complaint; denying all of Mr. Smith's pending motions; and quashing the subpoena served upon the district judg e. We have jurisdiction2Mr. 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 fai led to comply with 10th Cir. R. 28.2 requiring a clear statement of whether ther e have been any prior or related appeals in this case.
-3- pursuant to 28 U.S.C. § 1291, and we affirm. Furth ermore, 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 T reasury Robert Rubin and numerous lesser officials of the IRS in their "priv ate capacity" alleging fraud, kidnaping, trespass, and a plethora of other violations of his rights. 2Mr. Smith attempted to sue the named defendants pursuant to 1 8 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 p arty defendant, pursuant to 28 U.S.C. § 2679 (d)(1). Simultaneousl y, the Government filed a-4-

motion to dismiss for lack of subject matter jurisd iction pursuant to Fed. R. Civ. P. 12(b)(1), for lack of personal jurisdiction purs uant 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 coul d 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 pretri al matters. Denying the magistrate judge's authority to supervise the case, Mr. Smith failed to appear at a scheduling/planning conference ordered by the magis trate 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 moti on to dismiss. The district court dismissed the case with prejudice and denied all Mr. Smith's pending motions. This appeal followed.-5- 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 the y seized his bank account; (2) the Secretary of the Treasury, the Commissionerof Internal Revenue, and the District Directors are liable for the actions of th eir agents under the doctrine of respondeat superior ; (3) the magistrate judge had no jurisdiction to d ecide 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 v ariously erred in quashing subpoenas, denying Mr. Smith the right to discoveryand 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 court s of the United States" and the "United States District Court," and that the latterlacks jurisdiction to hear constitutional claims.
The Government's motion to dismiss asserted multipl e 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-6-

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, appl ying 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 Amend ment 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 f indings of the district court in this appeal.
The district court determined Mr. Smith's suit agai nst 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 bar s 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) (constituti onal tort-7-

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 allegin g constitutional rights violation must plead specific facts supporting the claim), cert. denied , 471 U.S. 1125 (1985); or whether Mr. Smith might have an act ion 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 withinthe scope of employment enjoy absolute immunity), cert. denied , 498 U.S. 999 (1990).
Having satisfied itself that Mr. Smith had no legit imate 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 an d cannot add to it in any substantive manner.
Turning to Mr. Smith's ancillary allegations on app eal, he contends the Secretary, the Commissioner, and the District Direc tor are liable for the purportedly unconstitutional actions of their subor dinates under the doctrine of-8-

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 "a ffirmative link" requirement). In constitutional tort suits a gainst federal officials for monetary damages, as we have here, the complaint mu st 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 th at these officials were directly and personally involved in the events givi ng rise to this action, and they were properly dismissed from the action.
Mr. Smith contends the magistrate judge lacked juri sdiction to hear the case because Mr. Smith had not consented to have the cas e "tried" by a magistrate judge. See Fed. R. Civ. P. 73(b) (consent requirement for civ il trial jurisdiction); 28 U.S.C. § 636(c) (jurisdiction and authority of m agistrate judge). However, the order of reference to the magistrate judge was limi ted 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 ass igned 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 di strict court, not the magistrate-9-

judge, ruled on the Government's motion to dismiss, denied Mr. Smith's various motions, and entered judgment. Therefore, the magi strate judge did not exceed his jurisdiction in this matter, and Mr. Smith's co nsent was not required.
Mr. Smith next claims the district court improperlydenied him his constitutional right to have "non-bar counsel." Th e Constitution does not guarantee a right to counsel in all situations; the re 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) (discussin g when right to counsel arises in civil proceedings). Her ein, 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 q uashing subpoenas, denying him the right to discovery, and denying himhis right to a trial. The record indicates discovery was stayed pending the d istrict court's ruling on the Government's motion to dismiss. The discovery issu es 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 a llegations state a claim of-10-

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 abr idged 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 misgu ided, 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 sanctio ns to regulate the3 Generally, an "appeal is frivolous when 'the resu lt is obvious or the

appellant's arguments of error are wholly without m erit.'" 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)).
-11- 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 ha s 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 andsingle 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 consider ed 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 fr ivolous 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 claim s).
Mr. Smith already has had an opportunity to respondto the imposition of-12-

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 no tice and opportunity to respond must precede the imposition of sanctions).
Therefore, under Fed. R. Civ. P. 38, we order Mr. S mith to show cause why he should not be sanctioned in the amount of $500.0 0, payable to the Clerk of the United States Court of Appeals for the Tenth Circui t, as a small contribution to the United States for the costs of this action. Fu rthermore, Mr. Smith is prohibited from filing any further complaints in th e 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 M r. 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 sho uld 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 Ord er and Judgment, the sanctions will be imposed.-13-

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