Smith v. United Parcel Service, Inc.

Filing 5

ORDER dismissing this action without prejudice, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 10/9/15. 4 Motion for Permission to Proceed Pro Se is denied, and 3 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. 15-cv-02215-GPG
MATTHEW ALAN SMITH,
Plaintiff,
v.
UNITED PARCEL SERVICE, INC.,
Defendant.

ORDER OF DISMISSAL

Plaintiff, Matthew Alan Smith, has submitted to the Court pro se an Amended
Complaint (ECF No. 1), an Application to Proceed in District Court Without Prepaying
Fees or Costs (Long Form) (ECF No. 3), and a Motion for Permission to Proceed Pro Se
(ECF No. 4). The motion for leave to file a pro se action will be denied and 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 April 4, 2014, as a result of Mr. Smith’s abusive
history of filing frivolous actions. (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 a list of all past and currently pending lawsuits filed in the District of
Colorado, a statement of the legal issues to be raised in the proposed new pleading and
whether he has raised those issues in other proceedings in the District of Colorado, and a
copy of the proposed new pleading to be filed in the pro se action.
Mr. Smith includes in his motion for leave to file a pro se action a list of his prior
cases filed in the District of Colorado and he provides a cursory statement of the legal
issues to be raised in the proposed new pleading. Mr. Smith also has submitted a copy
of the proposed new complaint. However, Mr. Smith fails to mention that this is the fifth
lawsuit he has filed in the District of Colorado against Defendant, that all five cases stem
from his employment with Defendant that was terminated in November 2012, and that two
of the prior cases against Defendant were dismissed on the merits. See Smith v. United
Parcel Serv., No. 15-cv-01669-LTB (D. Colo. Aug. 7, 2015) (dismissed for failure to
comply with sanction order); Smith v. United Parcel Serv., No. 14-cv-00787-LTB (D. Colo.
Apr. 23, 2014) (dismissed for failure to comply with pleading requirements of Fed. R. Civ.
P. 8); Smith v. United Parcel Serv., No. 13-cv-01815-LTB-CBS (D. Colo. Mar. 24, 2014)
(dismissed on merits), appeal dismissed, 578 F. App’x 755 (10th Cir. 2014); Smith v.
United Parcel Serv., No. 12-cv-01578-LTB-CBS (D. Colo. Nov. 15, 2013) (dismissed on
merits), appeal dismissed, 578 F. App’x 755 (10th Cir. 2014). Although it does not
appear that the specific tort claims Mr. Smith asserts in the proposed new pleading were
raised in either of the two prior employment discrimination cases that were dismissed on
the merits, Mr. Smith presents no argument that would justify allowing him to file another

2

pro se action against Defendant arising out of a term of employment that ended in
November 2012.
Furthermore, even assuming Mr. Smith could raise the claims he asserts in the
proposed new pleading in a new action, it is not clear what specific claims Mr. Smith is
asserting in the proposed new pleading because the Amended Complaint does not
comply with the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure.
Mr. Smith has been advised in a number of prior cases that he must provide a short and
plain statement of his claims showing he is entitled to relief. See, e.g., Smith v. United
Parcel Serv., No. 14-cv-00787-LTB (D. Colo. Apr. 3, 2014). He has failed to do so in the
proposed new pleading and the absence of a short and plain statement of the claims he
intends to pursue is another reason that justifies denying leave to file a pro se action.
For these reasons, the motion for leave to file a pro se action will be denied and the
action 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. P. 24. Accordingly, it is
ORDERED that the Motion for Permission to Proceed Pro Se (ECF No. 4) is
DENIED. It is
FURTHER ORDERED that the Amended Complaint (ECF No. 1) and the action

3

are dismissed without prejudice. It is
FURTHER ORDERED that the Application to Proceed in District Court Without
Prepaying Fees or Costs (Long Form) (ECF No. 3) is DENIED as moot. 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

9th day of

October

BY THE COURT:

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

4

, 2015.