Ward v. Garnett , 639 F. App'x 568 ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 27, 2016
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Elisabeth A. Shumaker
Clerk of Court
JOSEPH WAYNE WARD,
Plaintiff - Appellant,
v. No. 16-1046
(D.C. No. 1:15-CV-02440-LTB)
STANLEY GARNETT, (D. Colo.)
Defendant - Appellee.
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ORDER AND JUDGMENT*
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Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
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State prisoner Joseph Wayne Ward filed a pro se complaint in federal district
court against Boulder County District Attorney Stanley Garnett to challenge Mr.
Ward’s previous conviction in Colorado state court.1
A magistrate judge ordered Mr. Ward to file an amended complaint that
complied with Federal Rule of Civil Procedure 8. Finding the amended complaint
*
After examining the briefs and 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). The case is therefore
ordered 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
Mr. Ward’s original complaint included claims against Stanley Garnett and
others, but his amended complaint raises claims only against Mr. Garnett.
unintelligible and in violation of Rule 8, the district court dismissed it without
prejudice. Mr. Ward appeals. Exercising jurisdiction under 28 U.S.C. § 1291, we
affirm the district court’s dismissal and deny Mr. Ward’s request to proceed in forma
pauperis (“ifp”).
We review a Rule 8 dismissal for abuse of discretion. See Nasious v. Two
Unknown B.I.C.E. Agents, 492 F.3d 1158, 1162 n.3 (10th Cir. 2007). Under Rule
8(a)(2), a complaint “must contain . . . a short and plain statement of the claim
showing that the [plaintiff] is entitled to relief.” We construe pro se pleadings
liberally. See Diversey v. Schmidly, 738 F.3d 1196, 1199 (10th Cir. 2013). But we
do not assume the role of advocate and craft arguments for the pro se litigant. See
United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009).
The amended complaint refers to DA Garnett as a “Fiduciary Trustee,” to a
“Private Administrative Remedy,” to a “Contract/Agreement Between the Parties,”
and to other terms, none of them adequately explained. ROA at 60-61. It lists eight
claims. The first seven each start with a heading containing one or more of the
following: “Violations of USCA V & XIV, et al.,” “Breach of Fiduciary Duties,”
“Violation of Oath of Office,” “28 USC §§ 241 & 242,” “Breach of Contract,”
“Article I § 10,” “Violation of Office,” and “Article III § 2.” Id. at 61-63. A short
paragraph of “Supporting Facts” then follows each claim. Id. Five of these
paragraphs include the term “Certificate of Dishonor/Administrative
Judgment/Notarial Protest” without adequately explaining what it is. Id. Claim eight
is simply a list, without any “Supporting Facts,” that mostly repeats Mr. Ward’s
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earlier headings, such as “Violation of Due Process, USCA V.” Id. at 63. As best as
we can tell, Claim Two appears to allege the Colorado court where Mr. Ward was
convicted lacked subject matter jurisdiction, and Claim Four appears to allege DA
Garnett profited from his conviction, but in neither instance does the “Supporting
Facts” paragraph plainly explain the basis for such claims. Id. at 62.
Although Mr. Ward attempts to provide further information in his appellate
brief about his claims, he misstates the law—for example, arguing the Colorado court
where he was convicted lacked Article III jurisdiction under the U.S. Constitution,
Aplt. Br. at 2—and does not otherwise show that the amended complaint contained a
“plain statement of [a] claim” or that the district court abused its discretion in
dismissing it.
Having carefully reviewed the amended complaint, we find, as the district
court did, that it is largely unintelligible and not plain. We conclude the district court
did not abuse its discretion when it dismissed the amended complaint under Rule
8(a)(2) for failure to “contain . . . a short and plain statement of [a] claim.”
We therefore affirm. We also deny Mr. Ward’s request to proceed ifp; he is
therefore responsible for immediate payment of the unpaid balance of his appellate
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filing fee. Because we find this appeal to be frivolous, we assess a strike under 28
U.S.C. § 1915(g).
ENTERED FOR THE COURT,
Scott M. Matheson, Jr.
Circuit Judge
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