                                                                     FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                 June 18, 2009
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                  Clerk of Court
                                  TENTH CIRCUIT


 RANDY K. GOMETZ,

          Plaintiff-Appellant,

 v.

 UNITED STATES OF AMERICA;
 FEDERAL BUREAU OF PRISONS;
 HARRELL WATTS; MICHAEL K.
 NALLEY; RON WILEY; JOHN T.                              No. 08-1470
 SHARTLE; MARK A. MUNSON;                      (D.C. No. 1:08-CV-01258-ZLW)
 MAUREEN S. CRUZ; H. CHURCH; M.                           (D. Colo)
 COLLINS; T. GOMEZ; T. SUDLOW;
 FENLON; HAGOOD; CLARK; G.
 KNOX; MANLEY; A. OSAGIE; M.
 SCHAPPAUGH; DALGLISH; S.
 NAFZIGER; UNKNOWN PHYSICIAN’S
 ASSISTANT; UNKNOWN MAIL ROOM
 OFFICER; CINK,

          Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before HARTZ, EBEL, and O’BRIEN, Circuit Judges.



      *
       After examining appellant’s brief and the 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) and 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order and judgment is not binding precedent, except under the doctrines of law of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.
      This appeal involves the district court’s dismissal without prejudice of

Plaintiff-Appellant Randy Gometz’s Bivens action. See Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Mr.

Gometz, a federal prisoner proceeding pro se, alleges numerous violations of his

constitutional rights, including violations of his due process rights under the Fifth

Amendment and his right to be free from cruel and unusual punishment under the

Eighth Amendment. The district court dismissed this case without prejudice after

Mr. Gometz failed to timely comply with the court’s order to file a second

amended complaint. Mr. Gometz filed a request for reconsideration, which the

district court denied. This appeal followed, challenging both the district court’s

dismissal of Mr. Gometz’s case and its denial of his motion for reconsideration. 1

      For substantially the reasons stated by the district court, we AFFIRM.

Further, this court DENIES the motions Mr. Gometz has filed with this court

while this appeal was pending.




      1
         This court has appellate jurisdiction over the district court’s dismissal of
this case even though the dismissal was without prejudice, because the district
court dismissed the entire action, not just the complaint. See B. Willis, C.P.A.,
Inc. v. BNSF Ry. Corp., 531 F.3d 1282, 1296 n.15 (10th Cir. 2008) (“A dismissal
of the complaint is ordinarily a non-final, nonappealable order (since amendment
would generally be available), while a dismissal of the entire action is ordinarily
final.”) (quoting Moya v. Schollenbarger, 465 F.3d 444, 448-49 (10th Cir. 2006)).

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I. Background

      Mr. Gometz’s initial complaint was nearly 100 pages long. The district

court ordered Mr. Gometz to file an amended complaint that complied with his

duty to provide the court with a “short and plain statement of the claim.” Fed. R.

Civ. P. 8. Mr. Gometz filed an amended complaint on August 14, 2008.

Although this complaint was shorter than his original complaint, it was still very

long. Further, the district court found that despite the length of the complaint,

Mr. Gometz had failed to explain “how each named Defendant personally

participated in the asserted constitutional violations.” (ROA Doc. 12 at 3.)

Accordingly, the district court ordered Mr. Gometz to file a second amended

complaint within 30 days. The court subsequently extended the time for Mr.

Gometz to file his second amended complaint until October 24, 2008.

      Mr. Gometz did not file his second amended complaint until November 6,

2008. The district court therefore dismissed this case.

      Following the district court’s dismissal, Mr. Gometz filed a motion

objecting to the magistrate’s ruling. The order of dismissal had actually been

entered by District Judge Weinshienk, not the magistrate, but the court liberally

construed Mr. Gometz’s pro se motion. Mr. Gometz asked the court to reconsider

its dismissal in light of the fact that he is disabled, did not have copies of his

original complaint—thus making it difficult for him to draft an amended

complaint—and filed his second amended complaint only a few days after the

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court’s deadline. Since that motion was filed within ten days of the district

court’s dismissal of the case, the district court construed it as a motion for

reconsideration pursuant to Fed. R. Civ. P. 59. The district court denied his

motion, finding that he “does not allege the existence of any new law or evidence

and he fails to convince the Court of the need to correct clear error or prevent

manifest injustice.” (ROA Doc. 21 at 3.) This timely appeal followed.



II. Discussion

      “A district court has the power to dismiss a complaint when a plaintiff fails

to comply with the Federal Rules of Civil Procedure, including Rule 8(a)(2)’s

‘short and plain statement’ requirement.” Kuehl v. F.D.I.C., 8 F.3d 905, 908 (1st

Cir. 1993). This court reviews a district court’s dismissal without prejudice for

failure to comply with Rule 8 for an abuse of discretion. See Abdelsamed v.

United States, 13 Fed. Appx. 883, 884 (10th Cir. July 17, 2001) (unpublished);

Kuehl, 8 F.3d at 908.

      This court also reviews “a district court’s denial of a Fed. R. Civ. P. 59(e)

motion for reconsideration under an abuse of discretion standard.” Barber ex rel.

Barber v. Colo. Dep’t of Revenue, 562 F.3d 1222, 1228 (10th Cir. 2009) (citation

omitted). “Grounds warranting a motion to reconsider include (1) an intervening

change in the controlling law, (2) new evidence previously unavailable, and (3)

the need to correct clear error or prevent manifest injustice. Thus, a motion for

                                          -4-
reconsideration is appropriate where the court has misapprehended the facts, a

party’s position, or the controlling law.” Servants of Paraclete v. Does, 204 F.3d

1005, 1012 (10th Cir. 2000) (citation omitted).

      The district court did not abuse its discretion in dismissing Mr. Gometz’s

complaint after he failed to file a second amended pleading as ordered by the

judge. The district court generously gave Mr. Gometz a second opportunity to

amend his complaint, after his first amendment failed to cure the problems in his

original complaint. Further, the court granted his request for an extension on the

deadline for his second amended complaint, and only dismissed the case after Mr.

Gometz failed to file his second amended complaint within that extended

timeframe. In these circumstances, we cannot say the district court abused its

discretion by dismissing Mr. Gometz’s case without prejudice. Cf. Abdelsamed,

13 Fed. Appx. at 884 (upholding dismissal for failure to comply with Rule 8

where appellant’s amended complaint failed to cure the errors found in the

original complaint); Ciralsky v. C.I.A., 355 F.3d 661, 669-70 (D.C. Cir. 2004)

(upholding dismissal for failure to comply with Rule 8 where amended complaint

did not cure the defects found in the original, and noting that, although dismissal

with prejudice may have been too harsh, dismissal without prejudice was entirely

appropriate).

      Nor did the district court abuse its discretion in deciding that none of the

bases for granting relief under Rule 59(e) applied in this case. Mr. Gometz failed

                                         -5-
to point to any new law or evidence that the court did not have before it when it

issued its order of dismissal or show that dismissal of this case without prejudice

would cause clear error or manifest injustice.

        The district court’s dismissal of his case was without prejudice. This

means that Mr. Gometz may file a new complaint before the district court that

complies with all the rules discussed in this opinion and the district court’s

orders, and provided he does not have statute of limitations or other difficulties.

Any new complaint can address the issues Mr. Gometz has raised in the motions

filed before this court while this appeal was pending, and so they are all denied as

moot.



III. Conclusion

        For the foregoing reasons, this court AFFIRMS the district court’s

dismissal of this case without prejudice, AFFIRMS the district court’s denial of

Mr. Gometz’s motion for reconsideration, and DENIES the motions he has filed

before this court while his appeal was pending.


                                        ENTERED FOR THE COURT


                                        David M. Ebel
                                        Circuit Judge




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