Smith v. US Department of Education et al

Filing 48

ORDER granting Mr. Smith's motion to proceed in forma pauperis. The Court finds that the complaint Mr. Smith now proposes to file is duplicative of the complaint filed by Mr. Smith in Frederick Smith v. U.S. Department of Education, et al., 3:16-cv-00089-KGB, (E.D. Ark. May 24, 2016). The Court dismisses without prejudice Mr. Smith's proposed complaint in this action. Signed by Judge Kristine G. Baker on 4/24/2018. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
FREDERICK SMITH
v.

PLAINTIFF
Case No. 3:16-cv-00089-KGB

U.S. DEPARTMENT OF EDUCATION;
BRIAN BEERS; and
PHILLIP CARTER

DEFENDANTS
ORDER

Before the Court is plaintiff Frederick Smith’s complaint, motion to proceed in forma
pauperis, and motion styled as “declaration of exempt filing fee status.” On January 29, 2018, Mr.
Smith originally tendered to the Clerk for filing his complaint and motions. On March 2, 2018,
Mr. Smith tendered to the Clerk for filing the identical complaint and motions. On March 12,
2018, Mr. Smith tendered to the Clerk for filing a motion for the Clerk of Court to initiate service
of process. On March 16, 2018, Mr. Smith tendered to the Clerk for filing a proposed scheduling
order with notice of jury trial sought and a demand for jury trial. Copies of these documents are
attached to this Order. Mr. Smith is on the restricted filers list maintained by the Clerk of the
Court. Based on this status, the Court must first review Mr. Smith’s complaint and motion to
proceed in forma pauperis. Based on Mr. Smith’s application, he has neither the funds nor the
income to pay the filing fee. Therefore, the Court grants Mr. Smith’s motion to proceed in forma
pauperis and will permit Mr. Smith to proceed without prepayment of the filing fee.
Based on Mr. Smith’s status as a restricted filer and based on the filings he has submitted
for consideration, the Court determines that Mr. Smith may not proceed with his current claims
because they are duplicative of the complaint in this action previously filed by Mr. Smith. “[28
U.S.C. §] 1915(d) allows federal courts to dismiss frivolous or malicious actions that are filed in

forma pauperis,” including “duplicative complaints.” Aziz v. Burrows, 976 F.2d 1158, 1158 (8th
Cir. 1992). The Court finds that the complaint Mr. Smith now proposes to file is duplicative of
the complaint filed by Mr. Smith in Frederick Smith v. U.S. Department of Education, et al., 3:16cv-00089-KGB, (E.D. Ark. May 24, 2016). In the case, Judge D.P. Marshall, Jr., dismissed Mr.
Smith’s complaint without prejudice because it did not pass the screening requirements. Id. at 45. Judge Marshall reasoned that Mr. Smith’s claims under 42 U.S.C. § 1983 and the Fourth
Amendment to the United States Constitution both failed because the act of taking another’s
property does not violate the United States Constitution when the state provides an adequate postdeprivation remedy, which Arkansas provides under tort law. Id. (citing Hudson v. Palmer, 468
U.S. 517, 533 (1984)). In the complaint currently before the Court for consideration, Mr. Smith
also alleges that defendants violated state and federal criminal law by transporting goods that were
knowingly stolen. Mr. Smith’s claims relating to the transportation of stolen goods fail because,
as a general rule, criminal statutes do not create private causes of action. See e.g., Linda R.S. v.
Richard D., 410 U.S. 614, 619 (1973).
In the complaint currently before the Court for consideration, Mr. Smith has raised issues
directly related to those alleged and dismissed in his complaint previously filed in this case. He
has not cured the deficiencies cited by Judge Marshall previously. Therefore, for these reasons,
the Court declines to permit Mr. Smith to proceed with this action and dismisses without prejudice
Mr. Smith’s proposed complaint in this action.
It is so ordered this the 24th day of April, 2018.

____________________________
Kristine G. Baker
United States District Judge

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