York v. McCulley ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 19, 2005
TENTH CIRCUIT
Clerk of Court
KENNETH L. YORK,
Plaintiff-Appellant,
v.
JUANITA A. McCULLEY; No. 05-1455
DEPARTMENT OF DEFENSE; U.S. (District of Colorado)
SECRET SERVICE; CENTRAL (D.C. No. 05-CV-1324-ZLW)
INTELLIGENCE AGENCY;
FEDERAL BUREAU OF
INVESTIGATION; DEPARTMENT
OF JUSTICE,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before BRISCOE, LUCERO and MURPHY, Circuit Judges.
After examining appellant’s brief and the appellate record, this court has
determined unanimously that oral argument would not materially assist the
*
This order and judgment is not binding precedent, except under the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.
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.
Proceeding pro se, Kenneth L. York appeals the district court’s dismissal of
the civil rights action he brought pursuant to Bivens v. Six Unknown Named
Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). The district
court dismissed the action because York failed to file a second amended
complaint as ordered by the court. York also seeks to proceed in forma pauperis
on appeal.
York filed an initial complaint on July 15, 2005 and an amended complaint
on July 26, 2005. The magistrate judge concluded that York’s amended complaint
failed to comply with the pleading requirements of Rule 8 of the Federal Rules of
Civil Procedure because it did not set forth a short and plain statement of his
claims, specify the constitutional right or rights that allegedly have been violated,
or clearly state the relief sought. York was ordered to file a second amended
complaint and specifically warned that the failure to do so within thirty days
would result in the dismissal of his suit. York did not comply with the order and
the district court dismissed the action without prejudice on September 21, 2005.
The Federal Rules of Civil Procedure permit a district court to dismiss an
action for failure to comply with a court order. See Fed. R. Civ. P. 41(b). This
court reviews such dismissals for abuse of discretion. See Mobley v. McCormick,
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40 F.3d 337, 340 & n.1 (10th Cir. 1994). Upon review of the entire record, we
conclude that the district court did not abuse its discretion when it dismissed
York’s action. Although York filed several letters, documents, and motions after
he was ordered to amend his complaint, none of those filings contain a short and
plain statement of his claims and, thus, they do not comply with the pleading
requirements of Rule 8 or the district court’s order. Further, York received
adequate notice from the district court that his action would be dismissed if he
failed to cure the deficiencies in his complaint.
Accordingly, we affirm the district court’s dismissal of York’s suit.
York’s motion to proceed in forma pauperis on appeal is granted.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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