Smith v. CCRD
ORDER dismissing this action, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 3/19/14. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00788-BNB
MATTHEW A. SMITH,
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). Pursuant to
§ 1915(e)(2)(B)(iii), the Court must dismiss any claims in which Mr. Smith is seeking
monetary relief from a defendant who is immune from such relief. For the reasons
stated below, the Court will dismiss the action pursuant to § 1915(e)(2)(B)(i) & (iii).
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.
This action is one of four separate and apparently related lawsuits commenced
by Mr. Smith on the same day. See also Smith v. Dep’t of Justice, No. 14-cv-00785BNB (D. Colo. filed Mar. 17, 2014); Smith v. EEOC, No. 14-cv-00786-BNB (D. Colo.
filed Mar. 17, 2014); Smith v. United Parcel Service, No. 14-cv-00787-BNB (D. Colo.
filed Mar. 17, 2014). The lawsuit against United Parcel Service, Mr. Smith’s former
employer, may be predicated on claims of employment discrimination. The other three
actions are asserted against federal and state agencies allegedly involved in processing
Mr. Smith’s claims against United Parcel Service, apparently because Mr. Smith is
unhappy with how those claims have been processed and resolved.
The Defendant in the instant action is the Colorado Civil Rights Division (CCRD).
Mr. Smith alleges in the Complaint that:
There was Negligence between the Plaintiff and CCRD
(Cause Organizations Plaintiff Drafted Complaint). The
Agencies Fiduciary Duty is unclear to the plaintiff; essentially
it is belief it is to Protect According to Law. The CCRD
negligently skipped investigation, mediation, and conciliation
claiming it was a case the CCRD does not have jurisdiction
in my district/division. As for entitlement redress according
to law; n Charge/Right to Sue to be Re-Evaluated by this
district/division. I would like to be represented by CCRD
legal counsel for the remainder of these proceedings in
another district/division as U.S.C. 42-1440-(A) says I have a
right to change of venue in any district or division in the
interest of justice. There should be reviewed company
policy, company procedure, and company employment
Contracts/Agreements. I wou not only like my Charge/Right
to Sue to be Re-Evaluated by this district/division. I would
like to be represented by CCRD legal counsel for th
remainder of these proceedings in another district/division as
U.S.C. 42-1440-(A) says I have a right to change of venue in
any district or division in the interest of justice.
Both parties should have had equal practice by the law.
(ECF No. 1 at 2 (quoted verbatim without alteration or use of the traditional “sic” to
indicate mistakes).) Mr. Smith also seeks damages as relief.
Although the claims Mr. Smith is asserting against the CCRD are not clear,
whatever claims Mr. Smith is asserting are legally frivolous. Mr. Smith fails to allege
any facts that support an arguable claim against the CCRD and he fails to cite any
statutory authority that would allow the Court to consider claims against the CCRD
arising out of the CCRD’s processing of his claims against United Parcel Service. The
Court also notes that the Eleventh Amendment prevents Mr. Smith from suing the
CCRD for damages. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66 (1989)
(stating that the Eleventh Amendment bars suits against States unless the State has
waived its immunity). Therefore, the Complaint 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
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, the Court notes that Mr. Smith has filed numerous frivolous lawsuits in
the District of Colorado and that he recently was ordered to show cause why filing
restrictions should not be imposed. See Smith v. Byron White 10th Cir. Fed. Court, No.
14-cv-00669-LTB (D. Colo. Mar. 10, 2014) (dismissing action as legally frivolous and
ordering Mr. Smith to show cause within twenty-one days). Because the issue of filing
restrictions is being addressed in another case, it is unnecessary to consider the issue
in this action at this time. 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 pursuant
to 28 U.S.C. § 1915(e)(2)(B)(i) and (iii) because Plaintiff’s claims are legally frivolous
and he is seeking relief from a Defendant who is immune from such relief. 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 19th day of
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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