FILED
United States Court of Appeals
Tenth Circuit
April 22, 2010
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
THURMAN HARVEY HINES,
Plaintiff-Appellant,
v. No. 09-6239
(D.C. No. 5:07-CV-01429-R)
JUSTIN JONES, Director; MIKE (W.D. Okla.)
ADDISON, Warden; SANDRA
DORRIS, Law Library Supervisor;
LAURA SERSHON, Case Manager;
JERRY CHRISMAN, Deputy Warden;
LARRY HOSEK, Correctional
Officer; B. STEPHENS, Correctional
Officer; RICK ALLAN, Case
Manager, JHCC; DENNIS ROSE, Unit
Manager, JHCC; BRYAN GANTZ;
WILSON, Officer, Jess Dunn
Correctional Center,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before TACHA, BALDOCK, and BRISCOE, Circuit Judges.
*
After examining the briefs and appellate record, this panel has determined
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. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Plaintiff-Appellant Thurman Harvey Hines, appearing pro se, appeals from
the district court’s order dismissing his civil rights complaint for failure to state a
claim for relief. He also seeks leave to proceed on appeal in forma pauperis.
Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM the court’s order.
We DENY Mr. Hines’s motion to proceed in forma pauperis.
In December 2007, Mr. Hines, a state prisoner, along with several fellow
prisoners, filed a pro se civil rights complaint. The magistrate judge ordered
certain deficiencies be cured. However, because Mr. Hines was the only plaintiff
who cured the defects pertaining to him, the judge recommended that the other
purported plaintiffs be dismissed, and ordered Mr. Hines “to file an amended
complaint which asserts those claims pertaining solely to him and which specifies
the acts or omissions allegedly committed by each Defendant on which [his]
claims are based and the harm suffered by him as a result.” R. at 126. There was
no objection to the judge’s recommendation, and it was adopted by the district
court. Thereafter, Mr. Hines filed his amended complaint.
The magistrate judge conducted a review of Mr. Hines’s amended
complaint under 28 U.S.C. §§ 1915A(a) and 1915(e)(2)(B), and concluded that it
should be dismissed for failure to state a claim for relief. In a thorough report
and recommendation, the judge painstakingly worked through the amended
complaint, which he accurately described as containing “rambling ambiguous
statements which incorporate legal terminology and ‘buzz words’ to suggest the
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violation of various constitutional rights.” Hines v. Jones, No. CIV-07-1429-R,
2009 WL 3448222, at *4 (W. D. Okla., Oct. 21, 2009). He concluded that the
complaint failed to state any “cognizable constitutional violations,” id., and that it
would be futile to allow Mr. Hines any additional opportunities to amend.
The district court’s order adopting the magistrate judge’s report and
recommendation noted that Mr. Hines’s objection, in addition to being “rambling
and difficult to understand,” id. at *1, “included factual allegations . . . not
included in his Amended Complaint and not properly before the Court,” id. The
court addressed the “specific objections which [it was] able to comprehend,” id.,
and “concur[ed] in the findings, conclusions and recommendation of the
Magistrate Judge,” id. at *2. The court denied Mr. Hines’s later-filed motion for
leave to proceed in forma pauperis on appeal because the “appeal is not taken in
good faith.” R. at 252.
On appeal, Mr. Hines concedes that his amended complaint failed to state
claims for relief. He argues instead that the district court should have construed
his objection to the magistrate judge’s report and recommendation “as [a] motion
for leave to amend [his] complaint.” Aplt. Opening Br. at 5. According to
Mr. Hines, he “should have been allowed to amend [his] complaint or been
instructed by Court to amend [his] complaint after showing of sufficient facts [in
his objection] to state a claim under § 1983.” Id. at 4. He admits that he “did
not specifically request for leave to amend complaint in caption or motion,” id. at
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3, but asserts that the court should have divined his intention when he asked in his
objection that he be allowed “to properly round off any factual allegation
needed,” id. In his objection, Mr. Hines never asked to file another complaint.
Instead, he asked the court to overrule the judge’s report and recommendation, to
serve the defendants, and require them to answer the complaint and file a
“Martinez Report.” R. at 218.
Although “[a] pro se litigant’s pleadings are to be construed liberally,” Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), Mr. Hines’s pro se status does
not excuse his obligation to comply with the fundamental requirements of the
civil procedure rules. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836,
840 (10th Cir. 2005). His objection did not qualify as a motion to amend his
complaint and the district court did not err in failing to treat it as such. In
addition to the fact that it is not “the proper function of the district court to
assume the role of advocate for the pro se litigant,” id., judges are not mind
readers and should not be expected to guess at what a litigant might intend.
We AFFIRM the dismissal of Mr. Hines’s civil rights complaint. Because
we also agree with the court’s determination that Mr. Hines’s appeal lacks a good
faith basis, we DENY his motion to proceed in forma pauperis. This court has
assessed partial payments on the appellate filing fee; given our denial of leave to
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proceed in forma pauperis, Mr. Hines is directed to make immediate payment of
the unpaid balance due.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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