Robert J. Heard v. Milton E. Buddy Nix, Jr.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-14515 FEBRUARY 23, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 04-03574-CV-CAM-1
ROBERT J. HEARD,
Plaintiff-Appellant,
versus
MILTON E. BUDDY NIX, JR.,
ALAN A. ADAMS,
TYRONE ALLEN,
RB,
GB, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(February 23, 2006)
Before ANDERSON, BIRCH and BARKETT, Circuit Judges.
PER CURIAM:
Robert J. Heard, a pro se Georgia prisoner, appeals the district court’s order
dismissing his civil complaint with prejudice as a result of his non-compliance
with an order to conform his complaint to the requirements of Fed.R.Civ.P. 8(a).
On appeal, Heard argues, pro se, that, by dismissing his complaint, the district
court retroactively enlarged the scope of its order directing him to comply with
Rule 8(a), in violation of due process. He further argues that the order dismissing
his complaint was not based on “a clear record of delay or wilful [sic] contempt”
and that a lesser sanction would have sufficed. He argues that the district court
abused its discretion because it did not examine sufficiently his claims prior to
dismissing his complaint, as required by Fed.R.Civ.P. 12(b)(6). Finally, Heard
recounts the factual basis for his claims, arguing that they were sufficient to
survive dismissal.
We review orders dismissing complaints based on non-compliance for an
abuse of discretion. Kilgo v. Ricks, 983 F.2d 189, 192 (11th Cir. 1993)
(concerning dismissals under Fed.R.Civ.P. 41(b) for failure to comply with local
rules). Rule 8(a)(2) requires that a pleading contain a “short and plain statement of
the claim” showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2).
Federal Rule of Civil Procedure 10(b) requires that the averments of a claim “shall
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be made in numbered paragraphs, the contents of each of which shall be limited as
far as practicable to a statement of a single set of circumstances . . . [and] [e]ach
claim found upon a separate transaction or occurrence . . . shall be stated in a
separate count.” Fed.R.Civ.P. 10(b). Although pro se complaints must be liberally
construed, Trawinski v. United Tech., 313 F.3d 1295, 1297 (11th Cir. 2002), such
complaints still must comply with the procedural rules governing the proper form
of pleadings, McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 1984,
124 L.Ed.2d 21 (1993).
We have determined that “shotgun” complaints are not sufficient pleadings,
stating that:
The typical shotgun complaint contains several counts, each one
incorporating by reference the allegations of its predecessors, leading
to a situation where most of the counts (i.e., all but the first) contain
irrelevant factual allegations and legal conclusions.
Strategic Income Fund v. Spear, Leeds & Kellogg, 305 F.3d 1293, 1295 & n. 9
(11th Cir. 2002). In such cases, it is “virtually impossible to know which
allegations of fact are intended to support which claim(s) for relief,” and a party
faced with such a complaint is not expected to draft a responsive pleading.
Anderson v. Dist. Bd. of Trustees of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366 (11th
Cir. 1996). Therefore, it is important for a court to “narrow and define the issues
from the earliest stages of the litigation.” Ebrahimi v. City of Huntsville Bd. of
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Educ., 114 F.3d 162, 165 (11th Cir. 1997). “Absent such efforts, shotgun notice
pleadings . . . would impede the orderly, efficient, and economic disposition of
disputes.” Id.Local Rule 41.3 states, “The court may, with or without notice to the parties,
dismiss a civil case . . . if . . . [a] plaintiff . . . refuse[s] to obey a lawful order of the
court. . . . [A] dismissal . . .operates as an adjudication upon the merits . . . unless
the court specifies otherwise in its order of dismissal.” N.D. Ga. R. 41.3. The
district court may dismiss an action sua sponte under Fed.R.Civ.P. 41(b) for failure
to prosecute or failure to obey a court order. Fed.R.Civ.P. 41(b); Hildebrand v.
Honeywell, Inc., 622 F.2d 179, 181 (5th Cir. 1980). We have held that:
[t]he legal standard to be applied under Rule 41(b) is whether there is
a clear record of delay or willful contempt and a finding that lesser
sanctions would not suffice. Dismissal of a case with prejudice is
considered a sanction of last resort, applicable only in extreme
circumstances.
Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985) (quotations and citation
omitted). We have upheld an involuntary dismissal with prejudice under Rule
41(b) when a pro se “appellant not only exhibited a pattern of delay, but also
received a warning of dismissal and refused to obey court orders to appear.”
Hepperle v. Johnston, 590 F.2d 609, 613 (5th Cir. 1979). Dismissal with
prejudice, however, is not proper if the plaintiff negligently failed to comply with
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the court’s order and did not act in bad faith. E.E.O.C. v. Troy State Univ., 693
F.2d 1353, 1357 (11th Cir. 1982).
Upon review of the record, and consideration of Heard’s brief, we find no
reversible error here. Heard originally filed a 55-page, 12-count complaint,
accompanied by a 27-page affidavit, against 100 defendants. Essentially, the
complaint and affidavit alleged that the defendants had conspired with each other
in order to “obtain money and property through fraudulent means,” to deprive the
government and “inmates of their right to the fair and honest services of a state
official,” and to “conceal[] the conspiracy.” On March 14, 2005, Heard filed a 22-
page amended complaint, incorporating by reference his original complaint, adding
4 defendants, and adding 1 count and then filed a 19-page second affidavit and
supplemental statement of facts.
On May 19, 2005, the district court, without addressing his motions and with
“due regard to [Heard’s] pro se status,” ordered him to amend “his complaint to
bring it into compliance with [Rule] 8(a).” Specifically, the district court ordered
Heard to “submit a complaint that precisely specifie[d] in ‘short and plain
statements,’ among other things, which rights are claimed to have been violated
and how, when and by whom they were violated.” The district court further
ordered that Heard “name only those defendants who [were] absolutely essential to
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his claims.” (Id.). Finally, the district court specifically warned that, if Heard
failed to comply with its order, his action would be dismissed pursuant to N.D. Ga.
R. 41.2.
Heard then filed a 43-page second amended complaint, incorporating by
reference his first complaint, first affidavit, amended complaint, and second
affidavit, and naming 102 defendants, making clear that he did not even attempt to
comply with the district court’s order. We find no abuse of discretion.
AFFIRMED.
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