Smith v. Arraj

Filing 5

ORDER dismissing this action, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 2/24/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-00438-BNB
MATTHEW A. SMITH,
Plaintiff,
v.
ALFRED M. ARRAJ FEDERAL COURT, CO,
Defendant.

ORDER OF DISMISSAL

Plaintiff, Matthew A. Smith, has filed pro se a Complaint (ECF No. 1) and a
Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 3).
The Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No.
3) will be granted.
Pursuant to § 1915(e)(2)(B)(i), the Court must dismiss the action if Mr. Smith’s
claims are frivolous. A legally frivolous claim is one in which the plaintiff asserts the
violation of a legal interest that clearly does not exist or asserts facts that do not support
an arguable claim. See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). For the
reasons stated below, the Court will dismiss the action as legally frivolous.
The Court must construe the Complaint liberally because Mr. Smith is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). If the Complaint reasonably can be read
“to state a valid claim on which the plaintiff could prevail, [the Court] should do so

despite the plaintiff’s failure to cite proper legal authority, his confusion of various legal
theories, his poor syntax and sentence construction, or his unfamiliarity with pleading
requirements.” Hall, 935 F.2d at 1110. However, the Court should not be an advocate
for a pro se litigant. See id.
Mr. Smith’s Complaint in this action stems from the fact that a prior lawsuit he
filed in the District of Colorado raising claims of employment discrimination against his
former employer was dismissed with prejudice and summary judgment was entered in
favor of his former employer. See Smith v. United Parcel Service, No. 12-cv-01578-LTB
(D. Colo. Nov. 15, 2013), appeal filed, No. 13-1483 (10th Cir. Nov. 18, 2013). Mr. Smith
contends that summary judgment should have been entered in his favor in 12-cv-01578LTB and that his claims were misunderstood. According to Mr. Smith, “[a]s for what is
at question in this case there were improper procedures obvious unfair decision made
by the court compelled evidence necessary to further support his claims. Both parties
should have had equal procedural practice by the law.” (ECF No. 1 at 2.) He seeks
damages as relief.
The instant action is legally frivolous. The remedy available to Mr. Smith if he
disagrees with the Court’s decision in 12-cv-01578-LTB is to seek review of that
decision in the United States Court of Appeals for the Tenth Circuit, which he has done.
Mr. Smith cites no jurisdictional authority that would allow him to file a separate action
for damages against the federal district court because his claims were dismissed.
Therefore, the Complaint is legally frivolous and will be dismissed.
Furthermore, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any
appeal from this order would not be taken in good faith and therefore in forma pauperis
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status will be denied for the purpose of appeal. See Coppedge v. United States, 369
U.S. 438 (1962). If Plaintiff files a notice of appeal he also must pay the full $505
appellate filing fee or file a motion to proceed in forma pauperis in the United States
Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App.
P. 24.
Finally, Mr. Smith has filed two other actions in the District of Colorado seeking
damages from a state court and a state agency based on disagreements with decisions
made by those entities that were dismissed summarily for lack of subject matter
jurisdiction. See Smith v. Colo. Dep’t of Labor and Emp’t, No. 13-cv-02946-LTB (D.
Colo. Nov. 1, 2013), appeal filed, No. 13-1462 (10th Cir. Nov. 5, 2013); Smith v. Adams
Cnty. Combined Court, No. 13-cv-02945-LTB (D. Colo. Nov. 1, 2013), aff’d, No. 131463 (10th Cir. Jan. 22, 2014) (concluding appeal is wholly frivolous). Mr. Smith is
warned that he may be sanctioned, including the imposition of filing restrictions, if he
persists in engaging in abusive litigation tactics by filing frivolous lawsuits. Accordingly,
it is
ORDERED that the Motion and Affidavit for Leave to Proceed Pursuant to 28
U.S.C. § 1915 (ECF No. 3) is granted. It is
FURTHER ORDERED that the Complaint and the action are dismissed as legally
frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). It is

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FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied without prejudice to the filing of a motion seeking leave to proceed in forma
pauperis on appeal in the United States Court of Appeals for the Tenth Circuit.
DATED at Denver, Colorado, this

24th day of

February

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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, 2014.