FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS August 22, 2012
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
HORACE R. BUTLER,
Plaintiff - Appellant, No. 12-1264
v. (D. Colorado)
CITY OF ARVADA, COLORADO, (D.C. No. 1:12-CV-01057-LTB)
Defendant - Appellee.
ORDER AND JUDGMENT *
Before MURPHY, ANDERSON, and HARTZ, Circuit Judges.
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This order and judgment is not binding precedent, except under the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. 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. 32.1.
Plaintiff and appellant, Horace R. Butler, proceeding pro se, appeals the
dismissal of his complaint for failure to comply with the district court’s order to
amend his complaint. For the following reasons, we affirm that dismissal. 1
Mr. Butler is a 67-year-old African American male, who lives in Arvada,
Colorado. Mr. Butler’s complaint and his appellate brief list a number of
encounters he claims to have had with the police in Arvada. He accuses the
authorities of “misconduct,” “tampering with evidence,” “civil rights
violation[s],” “harassment,” and he claims he has suffered “[a] wrongful
conviction,” “mental anguish,” “stress,” “character assassination,” and the denial
of his “constitutional right[] to an attorney.” Appellant’s Opening Br. at 3-4. He
further claims he was stopped illegally in his car on at least one occasion, June 1,
2010.
Mr. Butler also alleges that the authorities engaged in “misconduct,
conspiracy, fabricating, [telling] lies” and “[t]ampering with evidence” during a
hearing and trial on August 11 and August 27, 2010. He further asserts the police
assaulted him and his mother on March 31, 2012, and that he was handcuffed at
some point.
Other than those dates, Mr. Butler does not identify any particular incident,
date or even a general time-frame for these allegations, nor does he list any legal
1
We also deny Mr. Butler’s motion requesting that the City of Arvada
furnish certain recordings on appeal.
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authority to support his claims. He alleges generally that he has been the victim
of persistent racial discrimination, and he asks “that the court place Sanction, on
The City of Arvada, CO at $65,000.000 million [sic].” Id. at 6.
On April 26, 2012, the district court issued an order directing Mr. Butler to
file an amended complaint because his complaint, as filed, “does not comply with
the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure.”
Order at 1, R. Vol. 1 at 10. The court observed that Mr. Butler “fails to provide a
short and plain statement of the grounds for the court’s jurisdiction” and “fails to
identify the statutory authority that allows the court to consider the claims he is
asserting in this action.” Id. at 11. While noting that Mr. Butler may be
intending to assert claims pursuant to 42 U.S.C. § 1983, the court stated that
“[m]erely making a conclusory allegation that the Arvada courts and police
department do not respect the constitution is not sufficient to state a cognizable
claim against the City of Arvada.” Id. at 12.
The court directed Mr. Butler to “explain what each defendant did to him
. . .; when the defendant did it; how the defendant’s action harmed him . . .; and
what specific legal right [Mr. Butler] believes the defendant violated.” Id.
(quoting Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th
Cir. 2007)). It also informed him that he must identify a municipal policy or
custom causing the alleged violations, in light of his assertion of claims against a
municipal entity. The court ordered Mr. Butler to file such a complaint within
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thirty days, and it cautioned Mr. Butler that failure to amend his complaint would
result in the dismissal of the complaint without further notice.
In response, on May 4, 2012, Mr. Butler filed a letter with the district
court, described by the court as follows:
Among other things, Mr. Butler describes in the letter a conversation
he had with the city attorney for the City of Arvada, states that the
City of Arvada has no defense and will settle out of court if they are
wise, and describes an incident with the City of Arvada police
officers that occurred on April 26, 2012. Attached to the letter are
various documents, including copies of a municipal summons dated
March 31, 2012; various municipal noise ordinances; City of Arvada
police reports relevant to the March 31 municipal summons and
another incident on April 3, 2012; and a statement by Mr. Butler
regarding the incident occurring on March 31, 2012. Mr. Butler has
not filed an amended complaint as directed, and the letter to the
Court filed on May 4 does not include a short and plain statement of
the claims he is asserting in this action. Therefore, Mr. Butler has
failed to comply with Magistrate Judge Boland’s order directing him
to file an amended complaint, and the action will be dismissed for
that reason.
Order at 1-2, R. Vol. 1 at 36-37. The district court then dismissed Mr. Butler’s
complaint without prejudice. The court also denied Mr. Butler the opportunity to
proceed on appeal in forma pauperis. After paying the full filing fee, Mr. Butler
pursued this appeal.
As indicated, Mr. Butler’s appellate brief provides no more specifics than
did his complaint in district court. Mr. Butler also does not specifically claim any
error in the district court’s dismissal of his complaint. The district court
dismissed Mr. Butler’s action without prejudice pursuant to Fed. R. Civ. P. 41(b)
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for failure to file an amended complaint as directed by the court. We have
consistently interpreted Rule 41(b) “to permit courts to dismiss actions sua sponte
for a plaintiff’s failure to prosecute.” Olsen v. Mapes, 333 F.3d 1199, 1204 n.3
(10th Cir. 2003). We review a dismissal under Rule 41(b) for an abuse of
discretion, asking whether the district court made “a clear error of judgment or
exceed[ed] the bounds of permissible choice in the circumstances.” Ecclesiastes
9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1143 (10th Cir. 2007)
(citations, internal quotation marks, and brackets omitted).
After examining Mr. Butler’s appellate pleadings and the record on appeal,
we conclude the district court did not abuse its discretion in dismissing Mr.
Butler’s complaint without prejudice. The allegations in Mr. Butler’s complaint
are unintelligible and Mr. Butler was given the opportunity to amend that
complaint. Even in his appellate brief, which is also largely incomprehensible,
Mr. Butler offers no explanation for why he failed to comply with the district
court’s order to amend his complaint.
Although Mr. Butler is acting pro se, and therefore entitled to a liberal
reading of his filings, we have “repeatedly insisted that pro se parties follow the
same rules of procedure that govern other litigants.” Kay v. Bemis, 500 F.3d
1214, 1218 (10th Cir. 2007) (further quotation omitted).
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For the foregoing reasons, we AFFIRM the dismissal of Mr. Butler’s
action.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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