Smith v. Department of Education, The

Filing 4

ORDER dismissing this action without prejudice, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 10/16/14. 2 Application to Proceed in District Court Without Prepaying Fees or Costs is denied as moot. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-02762-BNB
MATTHEW ALAN SMITH,
Plaintiff,
v.
THE DEPARTMENT OF EDUCATION,
Defendant.

ORDER OF DISMISSAL

Plaintiff, Matthew Alan Smith, has submitted to the Court pro se a Complaint
(ECF No. 1) and an Application to Proceed in District Court Without Prepaying Fees or
Costs (Long Form) (ECF No. 2). For the reasons stated below, the action will be
dismissed.
Mr. Smith is subject to a sanction order that restricts his ability to file pro se
actions. See Smith v. Byron White 10th Circuit Fed. Court, No. 14-cv-00669-LTB (D.
Colo. Mar. 10, 2014). The sanction order was entered on April 4, 2014. (See id. at ECF
No. 7.) In the sanction order Mr. Smith was “prohibited from filing any new action in the
United States District Court for the District of Colorado without the representation of a
licensed attorney admitted to practice in the District of Colorado unless he obtains
permission to proceed pro se” by following the procedures specified in the sanction
order. In order to proceed pro se, the sanction order requires Mr. Smith to submit to the
Court a motion requesting leave to file a pro se action that includes certain information

along with a copy of the proposed new pleading to be filed in the pro se action.
Mr. Smith is not represented by an attorney in the instant action, and he has not
obtained leave of court to proceed pro se. Mr. Smith also has not filed a motion for
leave to file a pro se action as required by the sanction order in 14-cv-00669-LTB, and
he has made no attempt to comply with the terms of the sanction order. Therefore, the
action will be dismissed for failure to comply with the sanction order.
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.
P. 24. Accordingly, it is
ORDERED that the Complaint and the action are dismissed without prejudice for
failure to comply with the sanction order restricting Plaintiff’s ability to file pro se actions
in this Court. It is
FURTHER ORDERED that the Application to Proceed in District Court Without
Prepaying Fees or Costs (Long Form) (ECF No. 2) is DENIED as moot. It is

2

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

16th

day of

October

BY THE COURT:

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

3

, 2014.