Smith v. Byron White 10th Circuit Fed. Court

Full title: MATTHEW A. SMITH, Plaintiff, v. BYRON WHITE 10TH CIRCUIT FEDERAL COURT…

Court: UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Date published: Feb 27, 2014

Civil Action No. 14-cv-00443-BNB (D. Colo. Feb. 27, 2014)

Opinion

Civil Action No. 14-cv-00443-BNB

02-27-2014

MATTHEW A. SMITH, Plaintiff, v. BYRON WHITE 10TH CIRCUIT FEDERAL COURT, CO, Defendant.

LEWIS T. BABCOCK

CIRCUIT FEDERAL COURT, CO, Defendant.

ORDER OF DISMISSAL

Plaintiff, Matthew A. Smith, initiated this action by filing 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). On February 21, 2014, he filed an amended Complaint (ECF No. 4) that appears to be identical to the original Complaint and an amended Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 5). Mr. Smith will be granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

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). For the reasons stated below, the Court will dismiss the action as legally frivolous.

The Court must construe the amended 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 (10^th Cir. 1991). If the amended 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 claims in this action stem from the fact that the United States Court of Appeals for the Tenth Circuit affirmed an order dismissing a previous lawsuit he filed in the District of Colorado. See Smith v. Adams Cnty. Combined Court, No. 13-cv-02945-LTB (D. Colo. Nov. 1, 2013), aff'd, No. 13-1463, 2014 WL 223840 (10^th Cir. Jan. 22, 2014). The Tenth Circuit concluded that the appeal was wholly frivolous. 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 denied legal right to venue change necessary to seek fair justice. Both parties should have had equal procedural practice by the law." (ECF No. 4 at 2.) He seeks damages as relief.

The instant action is legally frivolous. Mr. Smith cites no jurisdictional authority that would allow him to file an action for damages against the Tenth Circuit because his rights allegedly were violated in connection with an appeal filed in the Tenth Circuit. Therefore, the Complaint is legally frivolous and 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.

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 (10^th Cir. Nov. 5, 2013); Smith v. Adams Cnty. Combined Court, No. 13-cv-02945-LTB (D. Colo. Nov. 1, 2013), aff'd, No. 13-1463 (10^th 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, it is

ORDERED that the amended Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 5) is granted. It is

FURTHER ORDERED that the Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 3) is DENIED as moot. It is

FURTHER ORDERED that the Complaint, the amended Complaint, and the action are dismissed as legally frivolous 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 27^th day of February, 2014.

BY THE COURT:

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LEWIS T. BABCOCK, Senior Judge

United States District Court