F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 5 2001
TENTH CIRCUIT
__________________________ PATRICK FISHER
Clerk
MICHAEL DUANE WINDSOR; F. DAVID
SLUSHER; KIPLING KEY,
Plaintiffs-Appellants,
No. 01-1082
v. (D. Colo.)
(D.Ct. No. 00-Z-2059)
COLORADO DEPARTMENT OF CORRECTIONS;
BILL OWENS; JOHN W. SUTHERS; JOSEPH T.
McGARRY; DON LAWSON; TONY SCHENK;
ORVILLE NEUFELDS; FRANK E. RUYBALID;
RICHARD A. SOARES; JUDY BULLARD; TED
LAURENCE; PHYLLIS GRISWOULD; GISELA
WALKER; CATHIE HOLST; ROSE HEDGEMAN;
BRAD ROCKWELL, in their official and personal
capacities; John/Jane Doe(s),
Defendants-Appellees.
____________________________
ORDER AND JUDGMENT *
Before SEYMOUR, McKAY, and BRORBY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
*
This order and judgment is not binding precedent except under the doctrines of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.
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Appellants Michael Duane Windsor, F. David Slusher, and Kipling Key,
state inmates appearing pro se, appeal the district court’s decision dismissing
their prisoner civil rights complaint, brought pursuant to 42 U.S.C. § 1983. The
district court dismissed Appellants’ complaint for failure to prosecute because
they did not file an amended complaint, as ordered, in compliance with the
pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. We
exercise our jurisdiction under 28 U.S.C. § 1291 and affirm.
Appellants and another individual, James Alan Braxton, initiated a 42
U.S.C. § 1983 action by filing a standard § 1983 complaint form and hundreds of
attachments. The district court assigned the matter to a magistrate judge, who
issued an order finding the complaint deficient because it failed to comply with
the pleading requirements of Fed. R. of Civ. P. 8. The magistrate judge found the
complaint, together with the attachments, failed to sufficiently identify the
specific injuries suffered, and presented only “long-winded, chronological
recitations of acts or events without stating clearly how each Plaintiff’s
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constitutional rights were violated.” In addition, the magistrate judge concluded
“[n]either the Court nor Defendants are obligated to search through the Complaint
and its voluminous exhibits in order to glean a clear and succinct statement of
each claim for relief. It is Plaintiffs’ responsibility to edit and organize their
claims and supporting allegations into a manageable format.” Besides detailing
the deficiencies in the complaint, the magistrate judge also explained the basic
pleading requirements of Fed. R. Civ. P. 8. The magistrate judge then ordered the
Plaintiffs to file, within thirty days from the date of the magistrate judge’s order,
an amended complaint complying with Fed. R. Civ. P. 8, and instructed that
failure to do so would result in dismissal without further notice.
After the magistrate judge issued its order, Plaintiff James Alan Braxton
filed a motion to dismiss his civil rights complaint, explaining he failed to
exhaust the administrative grievance procedures, and asking his complaint be
dismissed separately from the other Plaintiffs. The district court issued an order
of voluntary dismissal, dismissing Mr. Braxton without prejudice. The remaining
Plaintiffs filed an objection to the magistrate judge’s order, listing reasons 1) why
they were unable to comply with the order, and 2) their intent to stand on their
complaint, which they described as “simple, concise, and direct,” containing all
the material facts supporting their case. The district court determined the
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objections lacked merit. The district court further noted the Plaintiffs failed to
file an amended complaint as ordered and that the magistrate judge had informed
them failure to do so would result in dismissal. Accordingly, the district court
dismissed their complaint without prejudice for failure to prosecute.
On appeal, the three named Appellants present the following issues for
review:
Was it an abuse of discretion for the District Court to dismiss
Appellants’ Complaint: (i) when the Complaint met none of the
grounds for dismissal pursuant to 28 U.S.C. § 1915A(b); (ii) when
the District Court[’s] application of Rule 8 Fed.R.Civ.P. was
overbroad [sic] as applied to Plaintiffs; (iii) when Plaintiffs, who are
prisoners, are required by rule to use the court’s forms and follow the
rules accompanying that form; (iv) when Plaintiffs have a protected
right to avoid the “strikes” under the PLRA, by carefully bringing all
available information; (v) when the pleadings state a valid claim on
which the Plaintiffs could prevail, and the court can reasonably read
them; (vi) when Plaintiffs paid the filing fee in full?
In addition, Appellants suggest the complaint is lengthy and encompasses 504
paragraphs and several hundred exhibits because of the requirement they state all
facts necessary to show the culpability of the seventeen named Defendants. They
surmise the magistrate judge should have set forth the facts and documents to be
omitted rather than dismiss their complaint simply because he was annoyed by its
length. Finally, they note the district court somehow improperly construed their
intent to stand on their complaint, rather than to amend it, as a “failure to
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prosecute.”
The decision to dismiss an action without prejudice for failure to comply
with Fed. R. Civ. P. 8 is within the sound discretion of the district court, and we
review the court’s decision for an abuse of discretion. See Kuehl v. FDIC, 8 F.3d
905, 908 (1st Cir. 1993), cert. denied, 511 U.S. 1034 (1994); Atkins v. Northwest
Airlines, Inc., 967 F.2d 1197, 1203 (8th Cir. 1992); Salahuddin v. Cuomo, 861
F.2d 40, 42 (2d Cir. 1988). Rule 8(a) requires Appellants’ complaint contain “a
short and plain statement of the grounds upon which the court’s jurisdiction
depends, ... (2) a short and plain statement of the claim showing that [they are]
entitled to relief, and (3) a demand for judgment for the relief [they] seek[]. Fed.
R. Civ. P. 8(a). Although we construe Appellants’ pro se pleadings liberally, they
must follow the rules of federal civil and appellate procedure, including Fed. R.
Civ. P. 8. See Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994), cert.
denied, 513 U.S. 1090 (1995). In addition, the Federal Rules of Civil Procedure
allow a district court to dismiss an action for failure to prosecute or comply with
a court order. See Fed. R. Civ. P. 41(b). Thus, we review for abuse of discretion
the district court’s dismissal of Appellants’ § 1983 suit for failure to file an
amended complaint in contravention of a court order. See Mobley v. McCormick,
40 F.3d 337, 340 & n.1 (10th Cir. 1994).
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Applying these principles, we have generally reviewed Appellants’ lengthy
complaint and hundreds of attachments in support thereof. In the interest of
judicial economy, we decline to duplicate the same analysis of the district court
and magistrate judge here, other than to conclude, for the same reasons, that the
complaint fails to comply with the pleading requirements of Fed. R. Civ. P. 8.
The sheer volume of the complaint and its attachments fail to give the Defendants
fair notice of the basis of the claims against them so they may respond, or allow
this court to conclude the allegations, if proven, show Appellants in this case are
entitled to relief. See Monument Builders of Greater Kansas City, Inc. v.
American Cemetery Ass’n of Kansas, 891 F.2d 1473, 1480 (10th Cir. 1989), cert.
denied, 495 U.S. 930 (1990)). In addition, Appellants’ decision to “stand by”
their complaint is a risk they took when the magistrate judge ordered them to file
an amended complaint in accordance with Fed. R. Civ. P. 8 and informed them
failure to do so would result in dismissal. For this reason, we conclude the
district court did not abuse its discretion in ordering Appellants to file an
amended complaint in compliance with Fed. R. Civ. P. 8, or by dismissing the
§1983 complaint without prejudice for failure to prosecute when Appellants failed
to file an amended complaint.
As to Appellants’ other issues on appeal, we conclude for the same reasons
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they are equally without merit, regardless of the large number of named
Defendants or the fact Appellants paid the filing fee and used the court form
required for bringing a prisoner § 1983 action. Moreover, while the magistrate
judge and district court are required to construe the pro se complaint in this case
liberally, they are not required to construct Appellants’ claims or grounds of relief
for them or provide specific instructions on what facts or documents to omit. See
Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).
Finally, we have determined “a dismissal without prejudice counts as a
strike, so long as the dismissal is made because the action is frivolous, malicious,
or fails to state a claim.” Day v. Maynard, 200 F.3d 665, 557 (10th Cir. 1999)
(per curiam). In this case, the district court did not dismiss Appellants’ § 1983
complaint without prejudice for failure to state a claim, but for failure to
prosecute their case because they did not file an amended complaint in
compliance with Fed. R. Civ. P. 8 as ordered. Therefore, under the circumstances
presented in this case, we conclude the three-strikes provision of which
Appellants complain does not apply here.
For these and substantially the same reasons in the magistrate judge’s
December 18, 2000 Order Directing Plaintiffs to File Amended Complaint and the
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district court’s February 6, 2001 Order and Judgment of Dismissal, we AFFIRM
the district court’s dismissal of Appellants’ § 1983 complaint without prejudice.
The filing of this order and judgment renders moot Appellants’ Motion to
Suspend Rules and to Expedite its Decision.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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