Smith v. Kiser et al

Filing 2

MEMORANDUM OPINION. Signed by District Judge Elizabeth K. Dillon on 7/24/2017. (tvt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
DAVID L. SMITH,
Plaintiff,

)
)
)
)
)
)
)

v.
JACKSON KISER, et al.,
Defendants.

Civil Action No. 7:17cv00349
By: Elizabeth K. Dillon
United States District Judge

MEMORANDUM OPINION
David L. Smith, a prisoner proceeding pro se, filed a civil rights action pursuant to 42
U.S.C. § 1983. Smith has not submitted a filing fee with his complaint, and therefore the court
liberally construes his action as a request to proceed in forma pauperis. However, at least three
of Smith’s previous actions have been dismissed as frivolous.1 Therefore, Smith may not
proceed with this action unless he either pays the $400.00 filing fee or shows that he is “under
imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).
Because Smith has neither prepaid the filing fee nor demonstrated that he is “under
imminent danger of serious physical injury,”2 the court dismisses his complaint without
prejudice pursuant to 28 U.S.C. § 1915(g).
Entered: July 24, 2017.

/s/ Elizabeth K. Dillon
Elizabeth K. Dillon
United States District Judge

1

See, e.g., Smith v. State of North Carolina, Action No. 5:01-ct-00033-BR (E.D.N.C. Feb. 28, 2011); Smith
v. County of Wake, Action No. 5:03-ct-00561-BO (E.D.N.C. Sept. 5, 2003); Smith v. State of North Carolina, Action
No. 5:03-CT-611-BO (E.D.N.C. Sept. 5, 2003); Smith v. State of North Carolina, Action No. 5:03-ct-00688-BR
(E.D.N.C. Sept. 25, 2003).
2

Smith alleges that, from 1996 to 2017, United States District Judge Jackson Kiser, LexisNexis attorney
Nancy Nash, and “Lexis Publishings” conspired to print North Carolina Criminal Procedure legal manuals which
substituted the “essential elements of the N.C. habitual felon statute” with “elements of the N.C. habitual felon
declaration,” and they “ordered dismissal of pro-se colorable 1983 complaint plagued with curable defects without
allowing amendment opportunity.” Based on his pleading, the court finds that Smith has not demonstrated that he is
in imminent danger of serious physical harm.