* 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

(continued...)

FILED

United States Court of Appeals

Tenth Circuit

February 15, 2011

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

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

(D.C. No. 1:09-CV-02589-PAB)

(D. Colo.)

ORDER AND JUDGMENT*
*

(...continued)

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 This order and judgment is not binding precedent, except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. 

1 See Smith, 389 F. App’x at 795-97, 799 (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 districtcourt filing restrictions); see also Smith v. Thomas, 383 F. App’x 8, 8 (D.C. Cir.

2010) (denying request for mandamus relief compelling the United States

Supreme Court to grant certiorari petitions); Smith v. Bender, 350 F. App’x 190,

195 (10th Cir. 2009) (affirming dismissal of action against Justices of the

Colorado Supreme Court and other governmental officials and denial of motion to

recuse district judge); Smith v. U.S. Court of Appeals, 484 F.3d 1281, 1286-87

(10th Cir. 2007) (holding that Mr. Smith lacked standing to challenge use of

non-precedential unpublished decisions to dispose of appeals and denying

mandamus relief); Smith v. Mullarkey, 67 F. App’x 535, 538 (10th Cir. 2003)

(determining that federal court lacked jurisdiction to consider denial of

Mr. Smith’s bar application).

-2-

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

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 F. App’x 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,
2 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.’” Krieger, 389 F. App’x at

800-801 (quoting Bender, 350 F. App’x at 195). Accordingly, any future pro se

filings by Mr. Smith will be subject to those filing restrictions.

-3-

403 U.S. 388, 395-96 (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 F. App’x 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 AngloAmerican society itself,” id. at 60 (footnote omitted). “As judges have become a

law unto themselves, they have abandoned any protections they might otherwise
-4-

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,
-5-

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, 129 S. Ct. 1937, 1948 (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
-6-

“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 F. App’x 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 F. App’x at 800. Under certain circumstances, a party may forfeit

his right to appellant review by making such statements. See Garrett v. Selby
-7-

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.

Entered for the Court

Jerome A. Holmes

Circuit Judge