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UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
__________________________
United States Court of Appeals
Tenth Circuit
FEB 3 1999
PATRICK FISHER
Clerk
MARVIN BISHOP,
Plaintiff-Appellant,
v.
ROY ROMER, Governor,
No. 98-1294
(D. Colo.)
(D.Ct. No. 98-D-1238)
Defendant-Appellee.
MARVIN BISHOP,
Plaintiff-Appellant,
v.
COLORADO DEPARTMENT OF CORRECTIONS;
ARISTEDES W. ZAVARAS, Executive Director;
DOCTOR McGARRY, Chief Medical Officer;
DOCTOR DIAMOND, Chief Mental Health Officer;
FRANK E. RUYBALID, Step III Grievance Officer,
all of C.D.O.C.; LARRY EMBRY, with his medical
and administrative staff; FREMONT CORRECTIONAL FACILITY, all of (F.C.F.); AL ESTEP, Warden,
with his administrative and medical staff; LIMON
CORRECTIONAL FACILITY, all of (L.C.F.);
DONICE NEAL, Warden, with her administrative,
medical and mental health staff; COLORADO STATE
PENITENTIARY, all of (C.S.P.); sued in their
individual and official capacities,
Defendants-Appellees.
____________________________
No. 98-1296
(D. Colo.)
(D.Ct. No. 98-D-171)
ORDER AND JUDGMENT *
Before BRORBY, EBEL, and LUCERO, 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 case is
therefore ordered submitted without oral argument.
Appellant Marvin Bishop, a pro se inmate, appeals the district courts
dismissal of his civil complaints without prejudice. We consolidate both appeals
for singular disposition. Because we conclude his appeals are frivolous, we deny
his motions for leave to proceed on appeal in forma pauperis and dismiss his
appeals pursuant to 28 U.S.C. 1915(e)(2)(B)(i).
Mr. Bishop filed two civil rights actions under 42 U.S.C. 1983. In the
first action, Mr. Bishop alleged nonfeasance by the Governor of Colorado for
This order and judgment is not binding precedent except under the doctrines of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.
*
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failing to respond to his letters and authorize an investigation of drug use by his
ex-wife and her boyfriend which he claimed could prove his innocence and false
imprisonment. The district court dismissed the complaint without prejudice under
the principle announced in Heck v. Humphrey, 512 U.S. 477 (1994), which bars
42 U.S.C. 1983 actions relating to or challenging the validity of a criminal
conviction and sentence. Id. at 486-87.
In the second action, Mr. Bishop asserted multiple constitutional claims
against numerous Colorado Department of Corrections officials for abusive
treatment resulting from his request for a single, rather than shared, prison cell
because of alleged medical and mental health reasons. In support of his
contentions, Mr. Bishop asserted numerous allegations of misconduct by prison
officials, including contentions they violated his constitutional rights by slamming
his cell door and refusing to provide him ear plugs, supportive shoes, and dietary
supplements such as vitamins, minerals, and proteins. In two separate orders, the
district court directed Mr. Bishop to file an amended complaint complying with
Rule 8(a)(2) of the Federal Rules of Civil Procedure, which requires a complaint
contain short and plain statements of (1) the grounds for jurisdiction and (2) a
claim showing relief, together with a demand for judgment for the relief sought.
The district court noted Mr. Bishops original complaint and supplementary
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thirty-six-page complaint contained rambling and verbose allegations of
incidents concerning denial of medical treatment, placement in administrative
segregation, and convictions on Code of Penal Discipline violations, together with
claims of interference with inmate grievance procedures, denial of library
photocopies, improper shakedowns, and subjection to an unheated cell. In
response to the courts order, Mr. Bishop filed an amended complaint that
contained many of the same allegations contained in his first complaint, together
with an exhaustive recitation of several state statutes and prison administrative
rules allegedly violated. The district court dismissed the complaint without
prejudice under Fed. R. Civ. P. 8(a)(2), stating it contained an unnecessarily
lengthy and confusing dissertation containing rambling and verbose allegations
which neither the court nor the defendants are required to search through ... to
determine what claims are being asserted.
After dismissal of the complaints in each action, Mr. Bishop sought
reconsideration. The district court construed the requests for reconsideration as
motions to alter or amend the judgments pursuant to Fed. R. Civ. P. 59(e) and
then denied the motions.
Mr. Bishop appeals the dismissal of both complaints. In his appeal of his
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action against the governor, Mr. Bishop contends the district court erred in
applying Heck to bar his 1983 action, and must allow him an opportunity to
amend his complaint to include relevant statutes and citations. In his other
appeal, Mr. Bishop argues his original and supplemental complaints meet all the
requirements of Fed. R. Civ. P. 8, and that even his grossly reduce[d] amended
complaint meets the rule and the judges orders. He also complains the district
court judge improperly refused to appoint him counsel and should have recused
himself.
Discussion
A. Section 1983 Action Barred by Heck v. Humphrey
We have carefully reviewed Mr. Bishops complaint of nonfeasance by the
governor and his assertion that an investigation of his ex-wifes and her
boyfriends drug use would prove his innocence and vindicate his claim of false
imprisonment. In essence, Mr. Bishops allegations implicate the validity of his
conviction and continued confinement. As the district court recognized, the
United States Supreme Courts decision in Heck v. Humphrey, 512 U.S. 477
(1994), controls this case. Humphrey states a 1983 action is an inappropriate
vehicle for challenging the validity of outstanding criminal judgments unless the
plaintiff proves the conviction has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal ... or called into question by a
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federal courts issuance of a writ of habeas corpus. Id. at 486-87. Accordingly,
we agree with the district court that Mr. Bishop failed to show an invalidation of
his conviction or sentence, requiring dismissal of his 1983 complaint. As for
Mr. Bishops request to amend his complaint, we find the district courts order
that dismissed his complaint without prejudice adequately advised him he may
initiate a new action under 1983, if he successfully invalidates his conviction
and sentence.
B. Dismissal Pursuant to Rule 8(a)(2)
Rule 8 provides that a complaint shall contain ... a short and plain
statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ.
P. 8(a)(2). When a complaint does not comply with this requirement, the court
has the power to dismiss it. Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.
1988). The decision to dismiss an action without prejudice for failure to comply
with Rule 8 is within the sound discretion of the district court, and we review the
courts decision for abuse of discretion. Id. See also Atkins v. Northwest
Airlines, Inc., 967 F.2d 1197, 1203 (8th Cir. 1992); Gillibeau v. City of
Richmond, 417 F.2d 426, 431 (9th Cir. 1969).
We have reviewed the original, supplemental, and amended complaints in
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Mr. Bishops 1983 action against officials of the Colorado Department of
Corrections. These documents consist of several pages of rambling, disjointed
factual allegations, seemingly unrelated conclusory assertions of constitutional
violations, and an exhaustive recital of statutes and administrative rules, which
shed no light on the exact nature of Mr. Bishops claims. Even giving his pro se
complaints liberal construction, Mr. Bishop fails to satisfy the Rule 8(a)(2)
requirement for a short and plain statement of claims showing he is entitled to
relief. Thus, his complaint fails to give the opposing parties a reasonable and fair
notice of the basis of the complaint, placing an impermissible burden on them to
identify his specific legal claims. See Monument Builders of Greater Kansas
City, Inc. v. American Cemetery Assn. of Kansas, 891 F.2d 1473, 1480 (10th Cir.
1989), cert. denied, 495 U.S. 930 (1990). Accordingly, the district court did not
abuse its discretion in dismissing Mr. Bishops 1983 complaint without
prejudice.
We next address Mr. Bishops claim the district court erred in failing to
appoint him counsel. Contrary to his contentions, the right to counsel in a civil
suit is not a constitutional right under the Sixth Amendment. See MacCuish v.
United States, 844 F.2d 733, 735 (10th Cir. 1988).
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As to Mr. Bishops request for recusal or disqualification of the district
court judge, we review under a plain error standard since he did not move or file
the necessary affidavit for recusal or disqualification below. See United States v.
Kimball, 73 F.3d 269, 273 (10th Cir. 1995). Even construing his pro se pleadings
liberally, Mr. Bishops mere conclusory allegation the judge must recuse himself
is insufficient to form a basis for recusal or disqualification. See Hinman v.
Rogers, 831 F.2d 937, 939 (10th Cir. 1987).
Because Mr. Bishops appellate pleadings offer no further explanation of
his claims, we conclude his appeal are legally frivolous and subject to dismissal
pursuant to 28 U.S.C. 1915(e)(2)(B)(i). For these reasons, we deny Mr.
Bishops motions to proceed in forma pauperis, Objection to Order dated
December 2, 1998, Objection to Order dated December 8, 1998, September 8
and 24, 1998 motions entitled Motion for Relief,and Declaration in Support of
Plaintiffs Motion for Temporary Restraining Order and Preliminary Injunction
with Damages. We have also reviewed Mr. Bishops October 9, 1998 letter and
find nothing therein to convince us of the merit of his appeals. Accordingly, we
AFFIRM the district courts judgments dismissing Mr. Bishops 1983
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complaints. We conclude Mr. Bishops two appeals count as two prior occasions
for the purposes of 28 U.S.C. 1915(g). The mandate shall issue forthwith.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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