Smith v. US Department of Education et al

Filing 49

ORDER granting Mr. Smith's motion to proceed in forma pauperis. The Court declines to permit Mr. Smith to proceed with this action and dismisses without prejudice Mr. Smith's proposed complaint in this action. Signed by Judge Kristine G. Baker on 4/25/2018. (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 against defendants Sergeant
Barry Roy, Lieutenant Tim K. Knuckles, Lieutenant Shawn Gardner, and the Arkansas State Police
Department. Also before the Court is Mr. Smith’s motion to proceed in forma pauperis and motion
styled as “declaration of exempt filing fee status.” On March 2, 2018, Mr. Smith originally
tendered to the Clerk for filing his 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. Copies of these
documents are attached to this Order. Mr. Smith tendered to the Clerk for filing a proposed
scheduling order with notice of jury trial sought and a demand for jury trial. 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.
The Court notes that Mr. Smith’s current complaint is against defendants that are not named
in the present case. The Court includes Mr. Smith’s current complaint under this case because the
current complaint is duplicative of past complaints filed by Mr. Smith. Also, Mr. Smith tendered

to the Clerk the current complaint against Sergeant Roy, Lieutenant Knuckles, Lieutenant Gardner,
and the Arkansas State Police Department in conjunction with a separate complaint that is against
the defendants originally named under this case, Phillip Carter, Special Agent Brian Beers, and
the United States Department of Education.
Based on Mr. Smith’s status as a restricted filer and based on the filings he has submitted
for consideration, this Court determines that Mr. Smith may not proceed with his claims because
his current claims are duplicative of a complaint 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 filed by Mr. Smith is duplicative of the complaints filed
by Mr. Smith in Fredrick Smith v. Rick G. McKelvey and Arkansas State Police Department, 3:16cv-00010-DPM (E.D. Ark. February 3, 2016), and Fredrick Smith v. United States Department of
Education, et al., 3:16-cv-00089-KGB (E.D. Ark. May 24, 2016).
In Fredrick Smith v. Rick G. McKelvey and Arkansas State Police Department, Judge D.P.
Marshall, Jr., dismissed Mr. Smith’s complaint because it did not pass the screening requirements.
Case No. 3:16-cv-00010-DPM, 2 (E.D. Ark. February 3, 2016). In the complaint, Mr. Smith sued
a state police officer in his official capacity solely for monetary damages. Id. Judge Marshall
reasoned that Mr. Smith’s claims failed because the police officer was protected against monetary
damages by the Eleventh Amendment. Id. Judge Marshall further reasoned that Mr. Smith did
not have a private cause of action against defendant based on claims brought under criminal
statutes. Id. In Fredrick Smith v. United States Department of Education, et al., Judge Marshall
also dismissed Mr. Smith’s complaint without prejudice because it did not pass the screening
requirements. Case No. 3:16-cv-00089-KGB, 4-5 (E.D. Ark. May 24, 2016). Judge Marshall

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reasoned that Mr. Smith failed to plead sufficient facts to support his claims under 18 U.S.C. §
1964 (Racketeer Influenced and Corrupt Organizations, “RICO”) and 15 U.S.C. § 1 (Sherman
Antitrust Act). Id. In his complaint currently before the Court for consideration, Mr. Smith fails
to plead enough facts to support his claims under RICO and the Sherman Antitrust Act because
his factual allegations do not mention any of the named defendants. Instead, for his claims under
RICO and the Sherman Antitrust Act, Mr. Smith only alleges facts relating to Ricky McKelvey,
who was previously sued by Mr. Smith but not named as a defendant in the present action.
In the complaint currently before the Court for consideration, Mr. Smith has raised issues
directly related to those alleged and dismissed in his complaint filed in a previous case. He has
not cured the deficiencies cited by Judge Marshall in the prior cases cited by this Court. 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 25th day of April, 2018.

____________________________
Kristine G. Baker
United States District Judge

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