Appellate Case: 21-1292 Document: 010110615700 Date Filed: 12/07/2021 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 7, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
VICTOR CHARLES FOURSTAR, JR.,
Plaintiff - Appellant,
v. No. 21-1292
(D.C. No. 1:21-CV-00414-LTB-GPG)
JOE BIDEN; MONTANA (D. Colo.)
DEPARTMENT OF CORRECTIONS
UNKNOWN HEADS; MICHAEL
CARVAJAL, Director of Federal Bureau
of Prisons; UNKNOWN U.S.
SENTENCING COMMISSION
MEMBERS,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, BRISCOE, and PHILLIPS, Circuit Judges.
_________________________________
Proceeding pro se,1 Victor Fourstar appeals the district court’s dismissal of his
complaint. Exercising jurisdiction under 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 help determine 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 This order and judgment is not binding precedent,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.
1
We liberally construe Fourstar’s filings, but we will not serve as his
advocate. James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
Appellate Case: 21-1292 Document: 010110615700 Date Filed: 12/07/2021 Page: 2
BACKGROUND
While incarcerated,2 Fourstar sued dozens of known and unknown defendants,
alleging various conspiracies and constitutional violations related to his prison
conditions. A magistrate judge concluded that Fourstar’s complaint violated Federal
Rule of Civil Procedure 8. The magistrate judge gave Fourstar several opportunities
to amend his complaint. And though Fourstar filed two amended complaints, the
deficiencies remained. Thus, the magistrate judge recommended that Fourstar’s
complaint be dismissed for violating Rule 8’s pleading requirements.
The district court adopted the magistrate judge’s recommendation and
dismissed the complaint without prejudice. It also denied Fourstar’s motion to
proceed in forma pauperis on appeal, certifying under 28 U.S.C. § 1915(a)(3) that
Fourstar’s appeal would not be in good faith. Fourstar now appeals.
DISCUSSION
We review a district court’s dismissal of a complaint under Rule 8 for abuse of
discretion. See Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1162 (10th
Cir. 2007). Under Rule 8(a)(2), a complaint “must contain . . . a short and plain
statement of the claim showing that the [plaintiff] is entitled to relief.”
This isn’t Fourstar’s first appeal before this court. As was the case in Fourstar
v. Smith, 748 F. App’x 856, 857 (10th Cir. 2019), his complaint lists various federal
and state authorities but fails “to link those authorities to any of the factual
2
When Fourstar filed his suit and notice of appeal, he was a federal prisoner in
Colorado. He has since been released.
2
Appellate Case: 21-1292 Document: 010110615700 Date Filed: 12/07/2021 Page: 3
allegations he makes in the successive paragraphs.” And “[h]is brief on appeal
largely recounts the factual allegations in his complaint.” Id. Thus, we again
conclude that Fourstar’s complaint hasn’t complied with Rule 8. The district court
therefore did not abuse its discretion in dismissing his complaint without prejudice.
We also find this appeal to be frivolous under 28 U.S.C. § 1915(e)(2)(B)(i). As
a result, we assess a third strike under 28 U.S.C. § 1915(g). See Davis v. Kan. Dep’t
of Corr., 507 F.3d 1246, 1249 (10th Cir. 2007). Fourstar is now barred from bringing
a civil action or an appeal from a civil action without prepaying the applicable filing
fee unless he is “under imminent danger of serious physical injury.” 28 U.S.C. §
1915(g).3
Additionally, we deny his request to proceed in forma pauperis and remind
him that he must pay the appellate filing fee in full. See Kinnell v. Graves, 265 F.3d
1125, 1129 (10th Cir. 2001); see also 18 U.S.C. § 1915(b)(1).
3
We deny as moot Fourstar’s motion for reconsideration of our order denying
him counsel in this appeal, motion for temporary injunctive relief, and supplemental
motion for appointment of counsel and expert services.
3
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CONCLUSION
For these reasons, we affirm the district court’s dismissal of Fourstar’s
complaint, assess a third strike against him, and deny his request for in forma
pauperis status.
Entered for the Court
Gregory A. Phillips
Circuit Judge
4