BLD-278                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 19-1622
                                      ___________

                                 JEFFREY W. SMILES,
                                              Appellant

                                             v.

        COUNTY OF BERKS A Political Subdivision of the Commonwealth of
                Pennsylvania also known as BERKS COUNTY;
                  BERKS COUNTY TAX CLAIM BUREAU
              An Agency of the Treasurer’s Office of Berks County;
                BRENDA S. SHAW, in her Individual Capacity;
         KATHIE E. STANISLAW, in her Individual and Official Capacity;
          LILLIAN B. CRAMSEY, in her Individual and Official Capacity;
            STACEY A. PHILE, in her Individual and Official Capacity
                  ____________________________________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                         (D.C. Civil Action No. 18-cv-03833)
                      District Judge: Honorable Edward G. Smith
                      ____________________________________

       Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
         Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                 September 12, 2019
              Before: AMBRO, KRAUSE and PORTER, Circuit Judges

                             (Opinion filed: October 2, 2019)
                                        _________

                                        OPINION*
                                        _________

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM

       Jeffrey Smiles appeals from an order of the United States District Court for the

Eastern District of Pennsylvania, which dismissed his complaint, granting the

Defendants’ motions under Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil

Procedure. As no substantial question is raised by this appeal, we will summarily affirm

the District Court’s judgment. See 3d Cir. I.O.P. 10.6.

       Smiles’s 87-page complaint (plus exhibits) was his third complaint raising nearly

identical civil rights claims and claims under federal criminal statutes against individuals

and entities that are or were involved in attempting to collect real property taxes from

Smiles.1 In these suits, Smiles claims that he does not need to pay taxes because he is a

“non-taxpayer” and “one of the sovereign people of the Commonwealth of

Pennsylvania.” Dkt. #1, ¶¶ 18, 37-38, 40. The District Court properly dismissed the

complaint for lack of subject matter jurisdiction.2


1
  Smiles v. Shaw, E.D. Pa. Civ. No. 17-cv-01355, was dismissed as frivolous and for
failure to state a claim under 28 U.S.C. §§ 1915(e)(2)(B)(i) and (ii), and because it failed
to comply with Rule 8(a) of the Federal Rules of Civil Procedure. Smiles did not file an
amended complaint, despite being invited to do so. A few months later, however, he
filed a nearly identical complaint, captioned Smiles v. County of Berks, and docketed at
E.D. Pa. Civ. No. 17-cv-03543. That complaint was dismissed for the same reasons, and
because Smiles “may not initiate duplicative cases against the same defendants in the
same court.” Smiles v. County of Berks, 2017 WL 3496486, at *2 (E.D. Pa. Aug. 14,
2017).
2
 We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise
plenary review over the District Court’s dismissal of Smiles’s complaint for lack of
subject matter jurisdiction. Nichole Med. Equip. & Supply, Inc. v. TriCenturion, Inc.,
694 F.3d 340, 347 (3d Cir. 2012). The District Court properly dismissed the complaint
without prejudice. See In re Orthopedic “Bone Screw” Prods. Liab. Litig., 132 F.3d 152,
                                             2
       The Tax Injunction Act prohibits a federal court from enjoining “the assessment,

levy or collection of any tax under State law where a plain, speedy and efficient remedy

may be had in the courts of such State.” 28 U.S.C. § 1341. Additionally, the Supreme

Court has held that “taxpayers are barred by the principle of comity from asserting

§ 1983 actions against the validity of state tax systems in federal courts” so long as

“plain, adequate, and complete”3 remedies are available in state court. Fair Assessment

in Real Estate Ass’n, Inc. v. McNary, 454 U.S. 100, 116 (1981). As we have explained,

“[t]aken together, the Tax Injunction Act and the Supreme Court’s decision in McNary

make it clear that a federal court cannot entertain a suit posing either an equitable or a

legal challenge to state or local taxes . . . if a sufficient remedy . . . is available in state

court.” Kerns v. Dukes, 153 F.3d 96, 101 (3d Cir. 1998).

       This Court has repeatedly held that the Pennsylvania state courts provide a “plain,

speedy, and efficient” remedy for challenges to a county’s assessment of real property



155 (3d Cir. 1997). We generally have jurisdiction only when a dismissal is with
prejudice, but a plaintiff can appeal from a dismissal without prejudice when, as here, “he
cannot cure the defect in his complaint.” Booth v. Churner, 206 F.3d 289, 293 n.3 (3d
Cir. 2000).
.
3
  The McNary Court stated:

       We discern no significant difference, for purposes of the principles
       recognized in this case, between remedies which are “plain, adequate, and
       complete,” as that phrase has been used in articulating the doctrine of
       equitable restraint, and those which are “plain, speedy and efficient,” within
       the meaning of § 1341.

454 U.S. at 116 n.8.

                                                 3
taxes. See, e.g., Gass v. County of Allegheny, Pa., 371 F.3d 134, 137-38 (3d Cir. 2004).

Indeed, Smiles has not demonstrated that the state’s “fully-developed administrative and

judicial apparatus” by which a taxpayer may challenge an assessment of his property, see

id. at 140, has become inadequate or unavailable since Gass. Accordingly, Smiles’s

challenge to Berks County’s actions, and that actions of the other individuals and entities

involved, fails for want of subject matter jurisdiction.4 The District Court therefore did

not err in dismissing Smiles’s complaint.5

       For the foregoing reasons, we will affirm the District Court’s judgment.




4
 To the extent Smiles sought to bring claims against the Defendants under federal
criminal statues, “a private citizen lacks a judicially cognizable interest in the prosecution
or nonprosecution of another.” See Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973).
Thus, dismissal of the criminal claims for lack of jurisdiction was also proper. See Steel
Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998) (“Dismissal for lack of subject-
matter jurisdiction because of the inadequacy of the federal claim is proper . . . when the
claim is so insubstantial, implausible, foreclosed by prior decisions of this Court, or
otherwise completely devoid of merit as not to involve a federal controversy.” (internal
quotation marks omitted)).
5
  In an affidavit in support of his appeal, Smiles contends that he never received the
motion to dismiss filed by Defendant Lillian B. Cramsey, and that it was unfair of the
District Court to dismiss his case without allowing him to respond to that filing.
However, even assuming that is true (we note that Cramsey’s motion includes an
appropriate certificate of service), Smiles was not prejudiced by his inability to respond,
as Cramsey’s motion simply “incorporate[d] by reference” the earlier motion to dismiss
filed by the other Defendants. Dkt. #13. Thus, Smiles had an opportunity to respond to
all of the arguments put forth by the Defendants.
                                              4
