Nasious v. Two Unknown B.I.C.E. Agents

F I L E D

United States Court of Appeals

Tenth Circuit

PU BL ISH

July 3, 2007

UNITED STATES COURT O F APPEALS Elisabeth A. Shumaker

Clerk of Court

TENTH CIRCUIT

JOHN NASIOUS,

Plaintiff-Appellant,

v. No. 07-1105

TW O UNKNOW N B.I.C.E. AGEN TS,

at Arapahoe County Justice Center,

GEORGE W . BUSH , President of the

United States; TOM RIDGE, Secretary

of the United States Department of

Homeland Security; ALBERTO

GONZALES, United States Attorney

General; UN ITED STATES

DEPA RTM EN T O F JUSTICE; JEFF

COPP, Regional Director (Denver),

United States Department of Homeland

Security Immigration and Customs

Enforcement; AG ENT M ICH AEL

W H E ELER ; A G EN T D EV A LUE

CUM M INGS; AGENT EDDIE

SAN CH EZ; AG ENT FRA NK LEE;

JOHN HICKENLOOPER, City and

C ounty of D enver M ayor; C ITY AND

C OU N TY O F D EN V ER BO A RD OF

CO UN TY COM M ISSION ERS; UN DER

SH ERIFF LOVINGER, Director of

Corrections, Denver City and County

Jail; SHERIFF STRONG; NURSE

ROSIE; BETH LINDROSS; DR.

CR UM ; DR. HIRSH ; SHERIFF

FISHER; CA PTAIN B LAIR; CH IEF

W ILSO N, Formerly Lt. W ilson; NURSE

JOE; CO RRECTION AL H EALTH

CA RE M ANAGEM EN T; DR. SOLIS,

CM S; DR.SCH LEG AL, CM S;

DR. SATHER, CM S; ED CILM OR,

Aramark Correctional Services;

ARA M ARK CO RPO RA TION; JOSEPH

NEUBAUER; CEO, Philadelphia,

Pennsylvania; JOSEPH O RTIZ,

Colorado Department of Corrections;

DIRECTOR JEANEENE M ILLER,

Colorado Department of Corrections of

Adult Parole Community Corrections

and YO S; DIVISION OF ADU LT

PA ROLE, Central Sherman Office;

NATALIE KIRKLAND, Parole Officer;

JOHN DOE AND JANE DOE 1-100;

ALL K NO W N D EFENDA NTS

CURRENTLY NOT KNOW N BY

NA M E BU T W ILL BE IDEN TIFIED

AN D A DD ED A T A LA TER DATE;

DEN VER CITY JAIL SGT.

SULLIVA N; SHERIFF JOH N D OE,

Denver City Jail; DENVER CITY JAIL

SHERIFF GU ZM AN ; RA ND Y PYE,

M ayor of C entennial; A RA PA HOE

C OU N TY BO A RD O F

CO M M ISSIONERS; LY NN M YERS;

B ERNIE ZIM M ER ; A RA PA H OE

C OU N TY D ETEN TIO N FA CILITY;

SH ERIFF J. G RA Y SO N RO BINSON;

JOHN DOE AND JANE DOE 1-100;

SGT. GRO SKRU GER; SHERIFF

HANSON; ELAIN E M EYERS, R.N.,

H.S.A., and complete medical staff 1-

50,

Defendants-A ppellees.

Appeal from the United States District Court

for the District of Colorado

(D.C. No. 06-cv-01765-ZLW )

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M r. John Nasious, pro se.

Before LUCERO , H ARTZ, and GORSUCH, Circuit Judges.

G O R SU CH, Circuit Judge.

John Nasious, an inmate in the custody of the Colorado Department of

Corrections, appeals the dismissal of his civil rights complaint for damages under

28 U.S.C. § 1983. M r. Nasious initiated this lawsuit in October 2006, naming at

least 20 individual defendants, as well as scores of John and Jane D oe defendants,

in a 42-page complaint that is, through much of the document, often difficult to

comprehend.

In response, the federal magistrate judge overseeing the case entered an

order indicating that M r. Nasious’s pleading did not comply with the requirements

of Federal Rule of Civil Procedure 8 which, among other things, instructs that

“[e]ach averment of a pleading shall be simple, concise, and direct.” Fed. R. Civ.

P. 8(e); see also Fed. R. Civ. P. 8(a), 12(e). W hile recognizing that Rule 8’s

language is perhaps more aspirational than descriptive of pleading practice, the

magistrate judge not unreasonably found that M r. Nasious’s pleading fell far short

of what is required under even a liberal construction of the Rule. Accordingly, he

advised M r. Nasious to present his claims in a “manageable format that allows the

court and the [d]efendants to know what claims are being asserted,” such that

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each defendant might be able to discern how he or she “participated in the

asserted constitutional violations.” M ag. J. Order of Oct. 13, 2006 at 3. The

magistrate judge also directed M r. Nasious to demonstrate that he had exhausted

his administrative remedies pursuant to 42 U.S.C. § 1997e(a). 1 Finally, the

magistrate judge’s order informed M r. Nasious that if he did not file an amended

complaint “that complies with this order to the court’s satisfaction within the time

allowed, the action will be dismissed without further notice.” Id. at 5.

M r. Nasious filed a timely amended complaint adding at least 22 new

defendants and running some 63 pages. No model of clarity, and arguably worse

than its predecessor in some respects, M r. Nasious’s amended pleading

nonetheless represented an improvement in others – for example, M r. Nasious

managed to shorten the statement of his claims from 17 pages to 11 and he added

several new pages aimed at demonstrating that he had indeed exhausted his

administrative remedies. Docket Entry No. 13 (Am. Compl.). Construing M r.

Nasious’s filings generously and with the leniency due pro se litigants, see

Erickson v. Pardus, ___ U.S.___, 127 S. Ct. 2197, 2200 (2007); Andrews v.

Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007), it appears M r. Nasious aims to

1

The magistrate judge entered his order to amend prior to the Supreme

Court’s decision holding that the exhaustion requirement under the Prison

Litigation Reform Act of 1995, see 42 U.S.C. § 1997e (requiring prisoners to

exhaust prison grievance procedures before filing suit), is an affirmative defense.

Jones v. Bock, ___ U.S. ___, 127 S. Ct. 910, 921 (2007). Accordingly, inmates

are no longer required to specifically plead or demonstrate exhaustion in their

complaints. Id.

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state claims for (at least) false imprisonment and a violation of due process, on

the ground that he is a United States citizen being held pursuant to an unlawful

immigration detainer, see Am. Compl. at 21-23, 25-26; violations of his right to

practice his religion, based upon his detention facility’s failure to prepare a

kosher diet, among other things, see id. at 31-33; and deliberate indifference to

his medical needs, in violation of the Eighth Amendment, see id. at 37.

The district court dismissed the amended complaint, holding that M r.

Nasious continued to fail “to provide a clear and concise statement of each claim

that identifies the constitutional right that allegedly has been violated and that

includes specific facts alleging how the [d]efendant or [d]efendants linked to each

claim personally participated in the asserted constitutional violation.” D . Ct.

Order of Jan. 31, 2007 at 4. And, to be sure, a failure to satisfy Rule 8 can supply

a basis for dismissal: Rule 41(b) specifically authorizes a district court to dismiss

an action for failing to comply with any aspect of the Federal Rules of Civil

Procedure. 2 On M r. Nasious’s subsequent motion, the district court found M r.

Nasious’s proposed appellate arguments meritless and denied him leave to

proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a)(3). See D. Ct. Order

2

“Although the language of Rule 41(b) requires that the defendant file a

motion to dismiss, the Rule has long been interpreted to permit courts [as here] to

dismiss actions sua sponte for a plaintiff’s failure to . . . comply with the rules of

civil procedure or court’s orders.” Olsen v. M apes, 333 F.3d 1199, 1204 n.3 (10th

Cir. 2003).

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of M ar. 28, 2007 at 1. M r. Nasious now appeals the dismissal of his lawsuit and

renews his request for leave to proceed in form a pauperis.

W e review dismissals under Rule 41(b) for abuse of discretion. Olsen v.

M apes, 333 F.3d 1199, 1204 (10th Cir. 2003); Petty v. M anpower, Inc., 591 F.2d

615, 617 (10th Cir. 1979). But what we consider compliant with this standard

depends in great measure on the nature of the district court’s dismissal – that is,

whether dismissal was ordered with or without prejudice to subsequent attempts

at amendment. Because the district court in this case did not specify the nature of

its dismissal order, we must rely on background principles under Rule 41(b), and

they firmly instruct that “[u]nless the court in its order for dismissal otherwise

specifies,” a district court’s dismissal will be treated as adjudicating the merits of

the action – and thus a dismissal with prejudice. See Fed. R. Civ. P. 41(b);

Semtek Int’l Inc. v. Lockheed M artin Corp., 531 U.S. 497, 505-06 (2001).

Employing Rule 41(b) to dismiss a case without prejudice for failure to

comply with Rule 8 of course allows the plaintiff another go at trimming the

verbiage; accordingly, a district court may, without abusing its discretion, enter

such an order w ithout attention to any particular procedures. See Petty, 591 F.2d

at 617; accord Ciralsky v. C.I.A., 355 F.3d 661, 669-71 (D.C. Cir. 2004). 3

3

In numerous unpublished decisions, we have affirmed district courts’

dismissals of actions without prejudice for failure to comply with Rule 8 under

our basic abuse of discretion standard. See, e.g., Owens-El v. Kostar, No. 06-

1444, 2007 W L 867174, at *1 (10th Cir. M ar. 23, 2007) (unpub.); Frazier v.

(continued...)

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Dismissing a case with prejudice, however, is a significantly harsher remedy – the

death penalty of pleading punishments – and we have held that, for a district court

to exercise soundly its discretion in imposing such a result, it must first consider

certain criteria. See Olsen, 333 F.3d at 1204; Gripe v. City of Enid, Okla., 312

F.3d 1184, 1188 (10th Cir. 2002); see also Ciralsky, 355 F.3d at 669-70

(discussing the “harsh sanction” of dismissal with prejudice as opposed to

dismissal without prejudice). Specifically, “[t]hese criteria include ‘(1) the

degree of actual prejudice to the defendant; (2) the amount of interference with

the judicial process; (3) the culpability of the litigant; (4) w hether the court

warned the party in advance that dismissal of the action would be a likely

sanction for noncompliance; and (5) the efficacy of lesser sanctions.’” Olsen, 333

F.3d at 1204 (quoting M obley v. M cCormick, 40 F.3d 337, 340 (10th Cir. 1994));

see also Gripe, 312 F.3d at 1188 (quoting Ehrenhaus v. Reynolds, 965 F.2d 916,

921 (10th Cir. 1992) (same) (hereinafter, the “Ehrenhaus factors”). 4

3

(...continued)

Ortiz, No. 06-1286, 2007 W L 10765, at *1-*3 (10th Cir. Jan. 3, 2007) (unpub.);

Chavez v. Huerfano County, 195 Fed. Appx. 728, 730 (10th Cir. 2006) (unpub.);

Abdelsamed v. United States, 13 Fed. Appx. 883, 884 (10th Cir. 2001) (unpub.).

4

W hile w e have not previously held in a published opinion these factors

applicable to a dismissal w ith prejudice for failure to comply with Rule 8, we

have applied them in numerous other similar scenarios under Rule 41(b). See,

e.g., Issa v. Comp USA, 354 F.3d 1174, 1178 (10th Cir. 2003) (failure to comply

with local rule requiring timely response to any motion); Olsen, 333 F.3d at 1204

(dismissal for failure to comply with Fed. R. Civ. P. 4(i) and for failure to comply

with court’s orders to perfect service under that rule); Reed v. Bennett, 312 F.3d

(continued...)

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Having reviewed the record, we find no indication that the district court

considered the Ehrenhaus factors before dismissing M r. Nasious’s case. Though

we can of course affirm a district court’s dismissal based on our own independent

assessment of its legal propriety, we find ourselves unable to do so in this case.

To be sure, we readily see that the first two of the Ehrenhaus factors are

met. This court has long recognized that defendants are prejudiced by having to

respond to pleadings as wordy and unwieldy as M r. N asious’s pleading remains.

See, e.g., M ann v. Boatwright, 477 F.3d 1140, 1148 (10th Cir. 2007); Knox v.

First Sec. Bank of Utah, 196 F.2d 112, 117 (10th Cir. 1952). W e have also

previously observed the disadvantages to the administration of justice imposed in

circumstances like these; district judges assigned the task of measuring legal

pleadings against certain criteria embodied in Rule 12(b), Rule 56, and the like,

have their task made immeasurably more difficult by pleadings as rambling, and

sometimes incomprehensible, as M r. N asious’s. See, e.g., M ann, 477 F.3d at

1148.

Our inability to affirm arises from our concern over the application of the

remaining three Ehrenhaus factors. The notice and culpability tests are in some

sense the opposite sides of the same coin in this context, for the culpability of a

4

(...continued)

1190, 1193 (10th Cir. 2002) (dismissal pursuant to local rule based on failure to

file a timely response to summary judgment motion); Gripe, 312 F.3d at 1188

(dismissal for failure to appear at a pretrial or scheduled conference and for

failure to file amended complaint pursuant to court’s order).

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pro se litigant for filing a still-prolix amended complaint depends in great

measure on the usefulness of the notice he or she has received from the court

about what is (and is not) expected in an initial pleading. 5 Here, the court surely

put M r. Nasious on notice that he needed to present a short and plain amended

complaint, but we question whether, consonant with our obligations to pro se

litigants who are not expected to understand what recitations are legally essential

and which are superfluous, the court’s order in these circumstances usefully might

have included some modest additional explanation, aimed at the lay person,

describing what judges and law yers m ean when speaking of a short and plain

statement consistent with Rule 8. For example, a district court might helpfully

advise a pro se litigant that, to state a claim in federal court, a complaint must

explain what each defendant did to him or her; when the defendant did it; how the

defendant’s action harmed him or her; and, what specific legal right the plaintiff

believes the defendant violated. After all, these are, very basically put, the

elements that enable the legal system to get weaving – permitting the defendant

sufficient notice to begin preparing its defense and the court sufficient clarity to

adjudicate the merits. See generally Erickson, 127 S. Ct. at 2200; Bell Atlantic

Corp. v. Twombly, ___ U.S.___, 127 S. Ct. 1955, 1964-74 (2007); Swierkiewicz v.

5

The same cannot be said of the represented litigant, for we expect

counsel to know the pleading rules of the road without being given personal

notice of them by the district court. Our concern here is with the pro se litigant

unschooled in the law. See Erickson, 127 S. Ct. at 2200; Andrews, 483 F.3d at

1076-78.

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Sorema N.A., 534 U.S. 506, 508 (2002). In all events, the more helpful the

notice, it seems to us, the greater the culpability a pro se litigant bears in

noncompliance and the notice before us, while giving rise to a degree of

culpability, perhaps did not go as far as it might have done to inform M r. Nasious

of the nature of Rule 8’s mandate.

Likewise, with the final factor of the Ehrenhaus test, we see no indication

that the district court considered the practicability of alternatives to dismissing

M r. Nasious’s cause with prejudice, such as dismissal without prejudice or

perhaps partial dismissal, leaving intact any claims that are adequately stated (if

any exist). W e are particularly concerned with attention to this aspect of

Ehrenhaus when a party, like M r. Nasious, appears pro se, having previously

explained that in such cases, “the court should carefully assess whether it might

appropriately impose some sanction other than dismissal [with prejudice], so that

the party does not unknowingly lose its right of access to the courts because of a

technical violation.” Ehrenhaus, 965 F.2d at 920 n.3.

For the foregoing reasons, we reverse the district court’s dismissal with

prejudice and remand for further proceedings consistent with this opinion; having

found M r. Nasious’s appeal meritorious, we grant his application to proceed in

form a pauperis.

So ordered.

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