Smith v. Alfred M. Arraj Federal Court, CO
ORDER dismissing this action, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 2/27/14. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00442-BNB
MATTHEW A. SMITH,
ALFRED M. ARRAJ FEDERAL COURT, CO,
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 or malicious. 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 and
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 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.
One day prior to filing the instant action, Mr. Smith initiated a separate action by
filing a Complaint that appears to be identical to the Complaint in this action. See Smith
v. Alfred M. Arraj Federal Court, CO, No. 14-cv-00438-LTB (D. Colo. Feb. 24, 2014).
“Repetitious litigation of virtually identical causes of action may be dismissed
under § 1915 as frivolous or malicious.” McWilliams v. Colorado, 121 F.3d 573, 574
(10th Cir. 1997) (quotation marks and alteration omitted). To determine whether a
pleading repeats pending or previously litigated claims, the Court may consult its own
records. See Duhart v. Carlson, 469 F.2d 471, 473 (10th Cir. 1972). The Court has
consulted its records and finds that the Complaint in this action is repetitive of the
Complaint filed in case number 14-cv-00438-LTB. Therefore, the instant action will be
dismissed as legally frivolous and malicious.
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
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.
Finally, Mr. Smith has filed multiple lawsuits in the District of Colorado seeking
damages from courts and a state agency based on disagreements with rulings made by
the courts and the state agency. The Court dismissed for lack of subject matter
jurisdiction the actions Mr. Smith filed against a Colorado state court and a Colorado
state agency. 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). Most recently, the
Court dismissed case number 14-cv-00438-LTB as legally frivolous and warned Mr.
Smith in that action about the possibility of imposing sanctions. The Court reiterates
that warning here: the Court can and will impose appropriate sanctions if Mr. Smith
persists in engaging in abusive litigation tactics by filing frivolous lawsuits. Accordingly,
ORDERED that the Complaint and the action are dismissed as legally frivolous
and malicious pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). It is
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 27th day of
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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