United States District Court, D. Colorado
TOMMIE L. SMITH, Plaintiff,
FORT COLLINS RESCUE MISSION, Defendant.
RECOMMENDATION OF DISMISSAL
P. Gallagher, United States Magistrate Judge
matter comes before the Court on the Amended Prisoner
Complaint (ECF No. 10). Plaintiff proceeds pro se. The
matter has been referred to this Magistrate Judge for
recommendation (ECF No. 20). The Court has considered the
entire case file, the applicable law, and is sufficiently
advised in the premises. This Magistrate Judge respectfully
recommends that the Complaint be dismissed with prejudice.
Tommy Lee Smith, was detained at the Larimer County Detention
Facility in Fort Collins, Colorado, at the time he initiated
this action on March 6, 2019 by filing pro se a
Letter with the Court. On March 7, 2019, Mr. Smith filed a
Prisoner Complaint (ECF No. 3) and a Prisoner's Motion
and Affidavit for Leave to Proceed Pursuant to 28 U.S.C.
§ 1915 (ECF No. 4). Plaintiff has been granted leave to
proceed in forma pauperis pursuant to 28 U.S.C.
§ 1915. (ECF No. 6).
March 18, 2019, the Court directed Mr. Smith to file an
amended pleading within 30 days because the original
complaint failed to state an arguable claim for relief under
42 U.S.C. § 1983. (ECF No. 8). Mr. Smith filed a Motion
for Leave to File an Amended Complaint (ECF No. 9) and an
Amended Prisoner Complaint (ECF No. 10) the same day. In a
March 20, 2019 minute order, the Court recognized that the
March 18 Order and Plaintiff's March 18 filings had
crossed in the mail and granted Mr. Smith until April 20,
2019 to file an amended pleading, on the court-approved
Prisoner Complaint form, in compliance with the March 18
Order. (ECF No. 11).
March 27, 2019, Mr. Smith filed a Motion for Leave to File an
Amended Complaint (ECF No. 12) to modify the Defendant's
name in the case caption and setting forth the basis of his
claims. On March 29, 2019, Plaintiff filed another Motion to
Amend Prisoner Complaint (ECF No. 13), which is largely
identical to the March 27 motion.
April 23, 2019, Mr. Smith filed a notice that he would be
released from the Larimer County Detention Facility to a drug
treatment program in Pueblo, Colorado, and would notify the
Court of his new address once it was known. (ECF No. 17).
Plaintiff filed a formal change of address on April 25, 2019.
(ECF No. 18).
Smith has now failed to file a (Second) Amended Prisoner
Complaint, on the court-approved form, in compliance with the
March 18 Order.
Court construes Mr. Smith's filings liberally because he
is not represented by an attorney. See Haines v.
Kerner, 404 U.S. 519, 52021 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However,
the Court will not act as an advocate for a pro se litigant.
See Hall, 935 F.2d at 1110.
Smith has been granted leave to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915. Therefore,
the Court must dismiss any claims in the Complaint that are
frivolous See 28 U.S.C. § 1915(e)(2)(B)(i). 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
Analysis of the Pleadings
Smith claims in the original complaint filed on March 7 (ECF
No. 3), and in the amended complaint filed on March 18, 2019
(ECF No. 10), that Defendant Fort Collins Rescue Mission
violated his due process rights by discriminating against him
after he was released on parole and was homeless. Plaintiff
states that he was hoping to be admitted to the “Step
to Success Program” at the Rescue Mission, but
Defendant refused to allow him to bring his keyboard inside
the shelter. Defendant also called the police and reported
incorrectly that Plaintiff had stolen an amplifier. According
to Mr. Smith, the police declined to arrest him on the ground
that it was “a civil matter.” (Id. at
4). Mr. Smith asserts that he then reported the shelter's
fire and health code violations to the City of Fort Collins.
The Defendant retaliated by banning him “for the rest
of [his] life” (id.), in violation of his
First Amendment rights. Mr. Smith requests monetary relief.
Smith asserts constitutional claims pursuant to 42 U.S.C.
§ 1983. As discussed in the March 18 Order, to state a
claim for relief under § 1983, Plaintiff “must
'allege the violation of a right secured by the
Constitution and laws of the United States, and must show
that the alleged deprivation was committed by a person acting
under color of state law.'" Bruner ...