Tracy v. United States ( 1999 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 2 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
ROBERT E. TRACY, Acting in Behalf
of Petitioner’s Wife and Sons,
Plaintiff-Appellant,
No. 99-6231
v. (W. District of Oklahoma)
(D.C. No. CIV-98-885-M)
UNITED STATES OF AMERICA;
DEPARTMENT OF JUSTICE,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before TACHA, McKAY, and MURPHY, Circuit Judges.
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)(2); 10th Cir. R. 34.1(G). The court
therefore orders the case 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This order and judgment is not binding precedent, except under the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. 36.3.
Plaintiffs, Robert Earl Tracy, his wife, and his children (collectively
“Plaintiffs”), proceeding pro se, filed a complaint on June 25, 1998 in the
United States District Court for the Western District of Oklahoma. The United
States and the Department of Justice were named as defendants (“Defendants”).
The complaint, which is virtually incomprehensible, contains references to a
plethora of constitutional provisions which Plaintiffs claim were violated by
Defendants. In addition to the federal claims alluded to in the complaint,
Plaintiffs also allege wrongdoing by state and local officials in the states of
California, Oklahoma, Texas, and Arkansas and to wrongs purportedly committed
against them by family members.
Defendants filed a Motion for More Definite Statement or, in the
Alternative, Motion to Dismiss. The district court held that Plaintiffs’ complaint
failed to comply with the pleading requirements of Rules 8(a)(1) and 10(b) of the
Federal Rules of Civil Procedure. The district court also concluded that, even if
Plaintiffs were allowed to amend their complaint, they would be unable to file a
short and plain statement of the grounds upon which the court’s jurisdiction
depends. Accordingly, the district court dismissed the complaint without
prejudice. 1 Additionally, the district court enjoined Plaintiffs from filing further
Although Plaintiffs’ complaint was dismissed without prejudice, this court
1
has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. See Petty v.
Manpower, Inc., 591 F.2d 615, 617 (10th Cir. 1979) (holding appellate court had
-2-
lawsuits in the United States District Court for the Western District of Oklahoma
unless they are represented by an attorney admitted to practice before that court
or unless they first obtain leave of the court. Plaintiffs appeal the district court’s
dismissal of their complaint. 2
This court is required to construe all pleading filed by Plaintiffs liberally.
See Haines v. Kerner, 404 U.S. 519, 520 (1972). However, Plaintiffs’ appellate
brief, like their complaint and other pleadings, is vague, disjointed, and replete
with sentence fragments and conclusory statements. Although Plaintiffs’
pleadings reference violations of several Amendments to the United States
Constitution and “many more of the U.S. Codes,” it is impossible to discern the
exact bases of Plaintiffs’ claims. Plaintiffs do not provide any coherent details of
the acts underlying those violations, including the dates on which they occurred.
jurisdiction when district court dismissed complaint without prejudice but it was
the clear intent of the district court to dismiss not only the complaint but also the
entire action as well); see also Clardy v. Levi, 545 F.2d 1241, 1242 n.2 (9th Cir.
1976) (“An order dismissing a complaint but not the action is not final and
appealable under § 28 U.S.C. § 1291 (1970) unless special circumstances clearly
indicate that the action could not be saved by any amendment which the plaintiff
could reasonably be expected to make.”).
2
Nowhere in their anfractuous appellate brief do Plaintiffs specifically
challenge that portion of the district court’s Order restricting them from filing
further lawsuits in the United States District Court for the Western District of
Oklahoma. This court will not address claims not raised on appeal. See Drake v.
City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir.1991) (“Despite the liberal
construction afforded pro se pleadings, the court will not construct arguments or
theories for the plaintiff in the absence of any discussion of those issues.”).
-3-
Even construed liberally, Plaintiffs’ pleadings fail to meet even the minimal
requirements of the Federal Rules of Civil and Appellate Procedure.
Upon de novo review of Plaintiffs’ pleadings, the district court’s Order
dated March 8, 1999, and the entire record on appeal, this court affirms the
district court’s dismissal of Plaintiffs’ complaint without prejudice for
substantially the reasons stated in the district court’s Order.
ENTERED FOR THE COURT:
Michael R. Murphy
Circuit Judge
-4-