OpenJurist

48 F3d 1231 Gibson v. Cripple Creek Colorado Springs al Quintana W Suthers Fourth Judicial District Gold Rush Hotel Gold Diggers Casino Peggy Riner J Barry

Edward C. GIBSON, El Paso County Sheriff Candidate,
Plaintiff-Appellant,
v.
CRIPPLE CREEK, Colorado, City of; COLORADO SPRINGS,
Colorado, City of; AL QUINTANA, Detective; John W.
SUTHERS, Fourth Judicial District Attorney; FOURTH JUDICIAL
DISTRICT of Colorado, named: Fourth Judicial District
Court(s) System; GOLD RUSH HOTEL, GOLD DIGGERS CASINO,
PEGGY RINER, Bernard J. BARRY, El Paso County Sheriff,
Defendants-Appellees.

No. 94-1168.
(D.C. No. 94-Z-677)

United States Court of Appeals, Tenth Circuit.

March 1, 1995.

48 F.3d 1231
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Before SEYMOUR, Chief Judge, McKAY, and HENRY, Circuit Judges.

ORDER AND JUDGMENT1

1

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); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.

2

Edward C. Gibson filed this pro se action pursuant to 42 U.S.C.1983 asserting multiple constitutional claims against numerous defendants apparently arising from his arrest for writing hot checks. The district court dismissed Mr. Gibson's complaint and cause of action without prejudice for failure to set out a short plain statement of his claims as required by Fed.R.Civ.P. 8(a)(2). On appeal, Mr. Gibson contends that his complaint complies with Rule 8(a)(2) and that the district court's ruling was motivated by racial bias. We affirm.

3

Rule 8 provides that a complaint "shall contain ... a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). When a complaint does not comply with this requirement, the court has the power to dismiss it. Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.1988). It is true that pro se pleadings are "to be construed liberally and held to a less stringent standard than formal proceedings drafted by lawyers." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). Nevertheless, it is not "the proper function of the district court to assume the role of advocate for the pro se litigant." Id. The court is thus not required to "grope through ... pages of irrational prolix and redundant pleadings, containing matters foreign to the issue involved ... in order to determine the grounds for the petitioner's complaint." 5 C.Wright & A.Miller, Federal Practice and Procedure, 1281, at 522 (2d ed.1990).

4

The complaint in this case consists of thirty-seven pages of rambling, disjointed factual allegations and vague, seemingly unrelated assertions of constitutional violations, plus several attachments which shed no light on the nature of Mr. Gibson's claims. Accordingly, Mr. Gibson's pleading, even when liberally construed, does not satisfy the Rule 8(a) requirement of a short plain statement of his claims showing that he is entitled to relief.

5

"Dismissal ... is usually reserved for those cases in which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised." Salahuddin, 861 F.2d at 42. As described above, the complaint here falls into this category and dismissal was therefore proper. While a court that dismisses pursuant to Rule 8(a) normally grants leave to file an amended complaint, id., Mr. Gibson did not request leave to amend and continues to assert erroneously on appeal that his complaint conforms to Rule (8)'s requirement. In addition, we observe that the dismissal was without prejudice, and that court in its order encouraged Mr. Gibson to seek legal counsel before proceeding further, providing specific information on the availability of counsel for those unable to afford an attorney. Accordingly, the court did not abuse its discretion in dismissing the complaint and cause of action.

6

Finally, we reject out of hand Mr. Gibson's allegation that the lower court's ruling was motivated by bias. Mr. Gibson offers nothing in support of this claim other than the fact that the court dismissed his complaint. As described above, dismissal was clearly warranted. Moreover, the court was commendably solicitous of Mr. Gibson's ability to proceed with his claim in a proper fashion.

7

AFFIRMED. All pending motions are denied. The mandate shall issue forthwith.

1

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 the court's General Order filed November 29, 1993. 151 F.R.D. 470