Smith v. Porter

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
August 4, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

DENNIS LEON SM ITH,
Plaintiff-Appellant, No. 06-1049
v. (D.C. No. 05-CV-02269 ZLW )
LARRY PORTER, Public M inister, (D . Colo.)
Defendant-Appellee.

OR D ER AND JUDGM ENT *

Before KELLY, M cK AY, and LUCERO, Circuit Judges.

After examining the briefs and the appellate record, this panel has

determined unanimously that oral argument would not materially assist in the

resolution of this appeal. See Fed. R. App. P. 34(a)(2). The case is therefore

ordered submitted without oral argument.

M r. Smith filed a complaint against Appellee, an assistant district attorney

for Baca County, Colorado. Although M r. Smith’s pro se allegations are difficult

to interpret, it seems that his complaint alleges constitutional violations in

connection with various traffic incidents. It appears that M r. Smith’s previous

*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
appeal to this court, which was dismissed on September 8, 2004, involved the

same events as the present appeal. See Smith v. Nieschburg, 107 Fed. Appx. 885

(10th Cir. 2004).

In the instant action, M r. Smith filed a complaint with the district court on

October 27, 2005. The magistrate judge generously commenced a civil action

“although the merits of M r. [Smith’s] Notice are questionable” and instructed him

to file his claims on a court-approved form and either pay the filing fee or submit

a m otion to proceed in forma pauperis. Order and Judgment of Dismissal, 1 (D.

Colo. Jan. 10, 2006). On November 16, M r. Smith filed his claims on a court-

approved form but neglected to pay the filing fee or submit a motion to proceed in

forma pauperis pursuant to 28 U.S.C. § 1915. In his motion, M r. Smith argues

strangely that the district court lacks jurisdiction and requests that the court

dismiss for lack of jurisdiction. He also filed a Writ of M andamus. The district

court dismissed his complaint and action for failure to cure the defects, as

requested by the magistrate judge. Order and Judgment of Dismissal, at 2.

M r. Smith then filed a letter with the district court on January 20, 2006,

which the court construed as a M otion to Reconsider. Order Denying M otion to

Reconsider, 1 (D. Colo. Feb. 15, 2006). The district court denied this motion.

Finally, the district court, applying 28 U.S.C. § 1915, denied M r. Smith leave to

appeal. See Order (D. Colo. Feb. 27, 2006). W hile we have not determined

whether the standard of review of an order denying leave to appeal under § 1915

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is de novo or abuse of discretion, we would reach the same decision under either

standard in this case. See Plunk v. Givens, 234 F.3d 1128, 1130 (10th Cir. 2000).

W e have carefully reviewed M r. Smith’s brief, the magistrate judge’s order,

the district court’s orders, and the record on appeal, and for substantially similar

reasons to the those laid out by the district court in its January 10, 2006,

February 15, 2006, and February 27, 2006, orders, we AFFIRM the district

court’s dismissal of M r. Smith’s spurious claim and the district court’s denial of

leave to appeal. W e D EN Y M r. Smith’s motion to proceed in forma pauperis and

remind him of his obligation to pay filing fees and to respect the business of this

court.

Entered for the Court

M onroe G. M cKay
Circuit Judge

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