FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 9, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
DAVID ALLEN RICHESON,
Plaintiff - Appellant,
v. No. 20-1429
(D.C. No. 1:20-CV-02086-LTB-GPG)
UNITED STATES OF AMERICA, (D. Colo.)
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, KELLY, and McHUGH, Circuit Judges.
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Plaintiff-Appellant David Allen Richeson, appearing pro se, appeals the
dismissal of his pro se amended complaint for failure to comply with the pleading
requirements of Rule 8 of the Federal Rules of Civil Procedure. Exercising
jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
I
Richeson filed a pro se complaint in the United States District Court for the
District of Colorado, asserting one or more claims under the Federal Tort Claims Act.
The magistrate judge assigned to the case ordered Richeson to file an amended
complaint that complied with the pleading requirements of Rule 8. Richeson filed an
amended complaint but did not include a short and plain statement of any claims that
entitled him to relief. Instead, he attached to the amended complaint 84 pages of
exhibits and asserted “[t]he attached 11 March 2020 VA FTCA claim exhibits and
supporting documentation detail specific VA employee negligent acts creating
personal injury.” ROA at 17.
After reviewing the amended complaint and attachments, the magistrate judge
determined that Richeson still failed to comply with the pleading requirements of
Rule 8 and ordered him to file a second amended complaint. Richeson did not do so
despite an extension of the time to file. Therefore, the amended complaint was the
operative pleading before the magistrate judge.
On November 3, 2020 the magistrate judge issued a report and
recommendation to dismiss Richeson’s amended complaint for “fail[ing] to provide
fair notice of the specific claims he is asserting and the specific factual allegations
that support th[ose] claims.” Id. at 108. The report and recommendation informed the
parties that they had 14 days to file any written objections to the district court and
that failure to do so may preclude both de novo review by the district court and
appeal. Id. at 105 n.2.
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Richeson did not file any objections to the report and recommendation. But the
district court docket indicates that on November 23, 2020 a copy of the magistrate
judge’s report that was mailed to Richeson was returned as undeliverable. ECF No.
16. On November 30, 2020, the district court adopted the magistrate judge’s report
and recommendation and dismissed Richeson’s amended complaint without
prejudice. The district court also certified that any appeal from this dismissal would
not be taken in good faith. Richeson now appeals.
II
“This court has adopted a firm waiver rule under which a party who fails to
make a timely objection to the magistrate judge’s findings and recommendations
waives appellate review of both factual and legal questions.” Morales-Fernandez v.
I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005) (citing Moore v. United States, 950 F.2d
656, 659 (10th Cir. 1991)). “This rule does not apply, however, when (1) a pro se
litigant has not been informed of the time period for objecting and the consequences
of failing to object, or when (2) the ‘interests of justice’ require review.” Id.
We ordered Richeson to show cause why he has not waived his right to
appellate review under our firm waiver rule. Richeson responded that he did not
receive written notice of the magistrate judge’s report, as the district court docket
confirms. Additionally, he claimed that he never received electronic notification of
any court action and has had difficulty accessing email correspondence.
We have held that a pro se party has shown cause for a failure to timely object
to a magistrate judge’s report where the pro se party established that they did not
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receive the report until after the period for objection expired. United States v.
Summerlin, 162 F.3d 1175 (10th Cir. 1998) (unpublished); see also Vega v. Suthers,
195 F.3d 573, 580 (10th Cir. 1999) (“[W]e have excused the failure to file timely
objections only in the rare circumstance in which a represented party did not receive
a copy of the magistrate’s R & R.”). The district court docket indicates that Richeson
did not receive a copy of the magistrate judge’s report and recommendation. But we
need not resolve whether Richeson has waived his appellate rights here because we
agree with the district court that his amended complaint does not comply with the
requirements of Rule 8. See Young v. Attorney Gen. for New Mexico, 534 F. App’x
707, 709 (10th Cir. 2013) (unpublished).
III
To state a claim for relief, a complaint must contain “(1) a short and plain
statement of the grounds for the court’s jurisdiction . . . ; (2) a short and plain
statement of the claim showing that the pleader is entitled to relief; and (3) a demand
for the relief sought . . . .” Fed. R. Civ. Pro. 8(a)(1). By complying with these
requirements, a complaint will provide notice to the opposing party of the basis of the
claims against them and will also permit the court to determine whether the
allegations, if proven, will entitle the plaintiff to relief.
Richeson’s amended complaint does neither of these things and, as a result,
does not meet the requirements of Rule 8. Richeson argues, however, that although
he does not have all the facts and details of his case, he should not have to provide an
exacting account of his injury. But Richeson does not need to provide exact details to
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state a claim for relief under Rule 8. He needs only to provide allegations which are
clear enough so that the opposing party and the court can discern a factual and legal
basis for his claims. We agree with the magistrate judge and the district court that
Richeson has not met this standard. While the 84 pages of attachments to the
amended complaint provide a few pieces of the puzzle as to what has happened to
Richeson over the years, together they demonstrate only a general allegation of
wrongdoing. And although we must construe Richeson’s pro se pleadings liberally,
we cannot be his advocate in discerning a factual or legal basis for his claims. Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
IV
For those reasons, we AFFIRM the district court’s dismissal of Richeson’s
complaint. Any other pending motions before the court are dismissed as moot.1
Entered for the Court
Mary Beck Briscoe
Circuit Judge
1
On March 2, 2021, Richeson filed a “Motion to Compel U.S. Department of
Veteran Affairs and U.S Social Security Administration to Answer Questions
Previously Presented Without Reply as Supported with Attached Affidavits.”
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