Fourstar v. Smith ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 22, 2019
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Elisabeth A. Shumaker
Clerk of Court
VICTOR CHARLES FOURSTAR, JR.,
Plaintiff - Appellant,
v. No. 18-1328
(D.C. No. 1:18-CV-00563-LTB)
SHELLY SMITH; MIKE MCGRATH; (D. Colo.)
JON MOOG; SEVEN MONTANA
SUPREME COURT JUSTICES; ANITA
RICHARD; DEWAYNE BURKE;
CAROL WISE; MARK HIGGINS;
KAREN KLEMPE; MARY ROADS;
TRACY ANDERSON; CLYDE
BARNETT; BRUCE CHENG; DEXTER
LAMPE; KELVIN QUINTANA;
DARRELL WADE; ANGELA
TUTTIOLMONDO; BOB TUCKER;
JORGE VALDEZ; PETER O'BRIEN;
CATHY R. GOETZ; JESSIE CARLSON,
Defendants - Appellees.
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ORDER AND JUDGMENT*
_________________________________
Before HOLMES, MATHESON, and EID, Circuit Judges.
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*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the resolution 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Victor Charles Fourstar, Jr., proceeding pro se, appeals the district court’s
dismissal without prejudice of his complaint. Exercising jurisdiction under 28 U.S.C.
§ 1291, we affirm.
I. BACKGROUND
While incarcerated in a federal prison in Colorado, Mr. Fourstar filed a pro se
prisoner complaint against 23 defendants, including various Colorado prison
personnel, seven Montana Supreme Court justices, and other Montana state officials.
His complaint asserts two numbered claims, each of which appears to include
multiple sub-claims.
In claim one, Mr. Fourstar asserts violations under the First, Fifth, Sixth,
Eighth, Tenth, and Fourteenth Amendments of the U.S. Constitution and the “Bad
Man” Clause of the 1868 Fort Laramie Treaty. [ROA at 11.] The factual allegations
in these claims relate to the medical and dental treatment Mr. Fourstar received in
prison. [Id. at 12-18.] In claim two, Mr. Fourstar asserts violations of the same
constitutional provisions and treaty but also alleges that defendants violated the
Administrative Procedure Act (“APA”). [Id. at 19.] Claim two relates to an ethics
complaint that Mr. Fourstar filed against a Montana prosecutor. [Id. at 19-22.]
The magistrate judge assigned to the case ordered Mr. Fourstar to file an
amended complaint, finding that the original complaint failed to satisfy the pleading
requirements of Rule 8 of the Federal Rules of Civil Procedure. [Id. at 41.] Mr.
Fourstar objected to the magistrate judge’s order, and the district court overruled his
objections [ROA at 4.]. The court then gave Mr. Fourstar an additional month to file
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an amended complaint. [ROA at 60.] Over the next two months, Mr. Fourstar filed
two motions for extensions, both of which the court granted. [Id. at 4.] In granting
Mr. Fourstar’s third extension, however, the court noted that the case would be
dismissed if Mr. Fourstar did not comply with the magistrate judge’s order and file
an amended complaint by the new filing deadline. [ROA at 5.]
Mr. Fourstar failed to file an amended complaint, and the court dismissed his
action without prejudice under Rule 8. [ROA at 89.] The court further “certifie[d]
pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be
taken in good faith and therefore in forma pauperis status will be denied for the
purpose of appeal.” ROA at 89. Mr. Fourstar timely appealed. [ROA at 92.]
II. DISCUSSION
We review the district court’s dismissal of a complaint without prejudice under
Rule 8(a) for abuse of discretion. See Nasious v. Two Unknown B.I.C.E. Agents, 492
F.3d 1158, 1161 (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.” We construe pro se pleadings liberally. See Diversey v. Schmidly, 738 F.3d
1196, 1199 (10th Cir. 2013). But we do not assume the role of advocate and make
arguments for the pro se litigant. See United States v. Pinson, 584 F.3d 972, 975
(10th Cir. 2009).
Mr. Fourstar’s complaint recites a series of encounters that do not appear to
have any common thread. His first claim moves from a discussion of tuberculosis, to
complaints of a chipped tooth, to problems with his knees, to an argument that he was
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denied anxiety medication. [ROA at 11-18.] His second claim alleges that a series
of Montana judges and public officials engaged in a common “scheme” to dismiss the
ethics complaint he filed against a Montana prosecutor. [ROA at 19-21.] Moreover,
although Mr. Fourstar begins his claims by citing constitutional provisions, a treaty,
and the APA, he does not attempt to link those authorities to any of the factual
allegations he makes in the successive paragraphs. His brief on appeal largely
recounts the factual allegations in his complaint. Put simply, the complaint is
difficult to comprehend and falls short of containing a “short and plain statement of
the claim showing that the [plaintiff] is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
We therefore hold that the district court did not abuse its discretion in finding
under Rule 8 that “Mr. Fourstar fail[ed] to provide Defendants fair notice of the
specific claims being asserted against them and the specific factual allegations that
support each claim.” ROA at 88.
III. CONCLUSION
We affirm the judgment of the district court. Because Mr. Fourstar has not
advanced a “reasoned, nonfrivolous argument” on appeal, see Lister v. Dep’t of the
Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005), his motion to proceed in forma pauperis
is denied.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
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