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Flute v. United States, 10th Cir. (2015)
Flute v. United States, 10th Cir. (2015)
Clerk of Court
No. 14-1316
(D.C. No. 1:14-CV-01269-LTB)
(D. Colo.)
Defendant - Appellee.
After examining the briefs and the appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is therefore ordered
submitted without oral argument.
Plaintiff Gary Flute, a federal prisoner representing himself pro se, filed a
complaint in the Federal Court of Claims alleging that certain employees of the Bureau
of Prisons transferred Plaintiff from a prison in Illinois to a prison in Colorado with only
four hours of notice, which thereby triggered the effective loss of personal property
This order and judgment is not binding precedent, except under the doctrines of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.
and wages. (R. at 17.) The Court of Claims concluded it lacked jurisdiction to
adjudicate Plaintiffs claim, and it transferred the complaint to the District of Colorado.
The Colorado district court instructed Plaintiff to file his complaint on the courts current
form. Plaintiff obtained the correct form and filed a prisoner complaint identifying three
claims apparently based on the prison transfer: deprivation of rights by and through
conspiracy against rights, obstruction of justiceagency proceedings, and theft by
deception/larceny. (R. at 31-33 (capitalization omitted).)
A magistrate judge reviewed the complaint and concluded it failed to satisfy Rule
8 of the Federal Rules of Civil Procedure because, among other things, it failed to
explain (1) what a defendant did to [Plaintiff]; (2) when the defendant did it; (3) how the
defendants action harmed him; and (4) what specific legal right the defendant violated.
(R. at 55 (citing Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th
Cir. 2007)).) The magistrate judge also concluded that the complaint fail[ed] to assert
specifically the matter [Plaintiff] is challenging under the Federal Tort Claims Act
(FTCA) claim. (R. at 55.) Plaintiff was ordered to file an amended complaint that
addressed these deficiencies.
Although Plaintiff filed an amended complaint, the district court concluded the
complaint failed to comply with the magistrate judges directives and contained the same
deficiencies as the original complaint. The court accordingly dismissed the complaint
without prejudice for failure to comply with Rule 8 and with the magistrate judges order.
We review the district courts dismissal of Plaintiffs complaint for abuse of
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discretion. Nasious, 492 F.3d at 1161. After thoroughly reviewing Plaintiffs brief and
the record on appeal, we are not persuaded the district court abused its discretion in
dismissing the complaint without prejudice for failure to comply with Rule 8. Although
Plaintiffs pro se pleadings must be liberally construed, he still bears the burden of
alleging sufficient facts on which a recognized legal claim could be based. Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Given the confusing and conclusory
nature of Plaintiffs original and amended complaints, we see no error in the district
courts conclusion that Plaintiff failed to meet this burden.
Accordingly, for substantially the same reasons given by the magistrate judge and
district court, we AFFIRM the district courts dismissal of this case. We GRANT
Plaintiffs motion to proceed in forma pauperis on appeal but remind him he is obligated
to continue making partial payments until the entire filing fee has been paid in full.
Entered for the Court
Monroe G. McKay
Circuit Judge
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