Barry J. Smith, Sr. v. Community Care Inc.

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 5, 2022 *
Decided May 6, 2022
Before
DAVID F. HAMILTON, Circuit Judge
AMY J. ST. EVE, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 20-3363
BARRY J. SMITH, SR.,
Plaintiff-Appellant,
v.
COMMUNITY CARE INC., et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Eastern District of
Wisconsin.
No. 20-CV-1482-JPS
J. P. Stadtmueller,
Judge.
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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No. 20-3363 Page 2
O R D E R
After Barry Smith, Sr. lost seven suits accusing the government of enforcing laws
that he believes are racist and wrongly adverse to felons, a district judge barred Smith
from filing suits that include claims “arising out of his status as a descendant of slaves
or his status as a convicted felon.” Smith v. United States Congress, No. 19-CV-1001-PP,
2019 WL 6037487, at *10–11 (E.D. Wis. Nov. 14, 2019). A year later, Smith brought this
suit. He alleges that Community Care Inc. and GuardianTrac LLC, private health care
providers, failed to pay Smith adequately for the care of his disabled brother. The first
claim, invoking 42 U.S.C. § 1981, accuses Community Care of breaking its contract with
Smith because he is a “Black descendant[] of American slaves.” The second, involving
the Fair Labor Standards Act, 28 U.S.C. § 201, accuses both providers of not paying
Smith his due wages. The district court correctly ruled that the filing bar blocked this
suit because the first claim expressly arises out of Smith’s status as a “descendant[] of
American slaves.” Therefore, we affirm.
For over a decade, Smith has sued branches of the United States, Wisconsin, and
Milwaukee governments. He protested that, because of racism directed against him as
“a descendent of the slaves” and his felony conviction, public officials prevented him
from owning a gun, running for office, and exercising certain other rights. Smith, 2019
WL 6037487, at *2. These suits were all dismissed. Id. at *2–3 (listing previous cases).
After the seventh dismissal, the court decided to bar Smith from filing any further suits
in the Eastern District of Wisconsin based on his status as “a descendent of slaves” (the
phrase he uses to describe his race) or as a felon. Id. at *10; see also Support Sys. Int’l, Inc.
v. Mack, 45 F.3d 185, 187 (7th Cir. 1995). We affirmed that dismissal without disturbing
the filing bar. Smith v. United States Congress, 840 Fed. App’x 31, 34 (7th Cir. 2021)
(nonprecedential), cert. denied, 142 S. Ct. 398 (2021).
In this appeal, Smith first challenges the validity of the filing bar, but we cannot
consider this argument. The time to challenge that decision was on direct appeal, not
collaterally in a different case. See Celotex Corp. v. Edwards, 514 U.S. 300, 313 (1995).
Smith can, however, seek relief from the filing bar by asking the judge who enacted it to
modify or rescind it three years after it was enacted—which will occur in November
2022. Smith, 2019 WL 6037487, at *10.
Next, Smith argues that the filing bar should not block this suit because he asked
the district court for leave to amend his first claim to replace “Black descendant of
American slaves” with “American Negro,” so as to avoid the language that triggers the
filing bar. But in his previous suits, and in this one, Smith uses the phrase “descendant

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No. 20-3363 Page 3
of American slaves” to describe his race. See, e.g., Smith, 2019 WL 6037487, at *2 (quoting
Smith’s allegation of “Racism directed against him as a descendent of the slaves”). The
filing bar therefore blocks any suit, like this one, that includes a claim arising out of
Smith’s race, regardless of how he labels it.
Finally, Smith argues that the district judge in this case was biased and should be
recused, but his contention is meritless. Smith relies on the facts that the judge ruled
against him and previously presided over his criminal trial. But adverse rulings and
information learned while presiding in court do not establish bias. See Liteky v. United
States, 510 U.S. 540, 555 (1994).
A FFIRMED

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