Smith v. Commonwealth of Virginia
- Colleen McMahon
- 1:20-cv-07521
- U.S. District Court · Southern District of New York
- 1
In Smith v. Commonwealth, Judge McMahon dismissed Smith’s new case without prejudice because he did not obtain required filing permission.
Wesley Edward Smith, III’s case was dismissed without prejudice because he did not obtain the required court permission before filing; he was also denied permission to proceed without paying filing fees on appeal.
What happened
In Smith v. Commonwealth of Virginia, Wesley Edward Smith, III filed a new case without a lawyer and asked to proceed without paying filing fees. A 2014 court order had barred him from filing new cases without first getting permission from the court.
Smith had not asked for that permission before filing this case. The court therefore dismissed the action without prejudice because he failed to follow the 2014 order.
Judge McMahon also ruled that an appeal would not be taken in good faith and denied Smith permission to proceed without paying fees for an appeal.
The detailed version
- Smith v. Commonwealth of Virginia · No. 1:20-cv-07521
- Colleen McMahon
- Sept. 15, 2020
Background
The court stated that, on February 27, 2014, Smith was barred from filing any new action without paying filing fees unless he first obtained the court’s permission. In this new pro se case, meaning a case filed without a lawyer, Smith requested permission to proceed without paying filing fees but did not first seek the required leave to file.
Ruling
The court dismissed the action without prejudice for failure to comply with the February 27, 2014 order. The dismissal was based on Smith’s failure to obtain permission before filing; the order does not address the underlying claims. The Clerk of Court was directed to mail Smith a copy of the order and record service on the docket.
Appeal and Filing Fees
The court certified under 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith. It therefore denied Smith permission to proceed without paying filing fees for an appeal.
Read the full 1-page opinion on CourtListener, the free public archive maintained by the Free Law Project.