          Case: 12-15930   Date Filed: 06/24/2013   Page: 1 of 4


                                                       [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 12-15930
                       Non-Argument Calendar
                     ________________________

                 D.C. Docket No. 1:12-cv-22193-FAM



RANDOLPH H. GUTHRIE, III,

                                                           Plaintiff-Appellant,

                                 versus

UNITED STATES OF AMERICA,
CITY OF NEW YORK,
CITY OF MIAMI, FL,
DADE COUNTY, FL,
WALGREENS, CO.,
CVS CAREMARK CORPORATION, et al.,

                                                       Defendants-Appellees.

                     ________________________

              Appeal from the United States District Court
                  for the Southern District of Florida
                    ________________________

                            (June 24, 2013)
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Before WILSON, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

      Randolph Guthrie appeals pro se the dismissal with prejudice of his third

amended complaint that the United States and more than 30 other defendants

violated the Federal Tort Claims Act. 28 U.S.C. § 2675(a). The district court

dismissed Guthrie’s complaint for failure to comply with Federal Rule of Civil

Procedure 10(b) and with instructions provided by the district court. Because

Guthrie’s third amended complaint suggests that he attempted to comply with both

Rule 10(b) and the instructions of the district court, we vacate the order dismissing

Guthrie’s complaint with prejudice and remand for further proceedings.

      The district court dismissed Guthrie’s complaint and first amended

complaint without prejudice for failure to comply with Rule 10(b). On both

occasions, the district court gave Guthrie leave to amend the complaints and

instructed him to set forth each claim in a separate count and to identify the factual

and legal basis for each claim. Guthrie also filed a second amended complaint, but

the district court did not address that pleading.

      Guthrie filed a third amended complaint that was identical to his second

amended complaint. In 173 paragraphs, Guthrie described how the United States

conspired with his defense counsel to convict him of “copyright infringement” and

later conspired with several individuals, businesses, and local governments to


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engage in tortious conduct and violate his constitutional rights. The complaint

contained 111 counts, each alleging a single claim against a named defendant or

defendants. In two paragraphs following each count, Guthrie incorporated by

reference the numbered paragraphs relevant to that count and provided a brief

description of the defendants’ alleged misconduct.

      In response to a motion of the United States, the district court dismissed with

prejudice Guthrie’s third amended complaint. The district court dismissed the

complaint for failure to comply with Rule 10(b) or the “due process concerns

articulated in the court’s previous Order.” The district court stated that Guthrie’s

complaint “once again fails to state a cause of action against each individual

defendant and does not coherently state what each defendant is alleged to have

done”; its “attempt to ‘incorporate by reference’ a narrative of general allegations

as to all defendants [did] not comply with [the] Court’s prior Order”; and it failed

to “allege any basis for the Court to assert jurisdiction over the laundry list of thirty

three corporate and government defendants.”

      The district court abused its discretion by dismissing Guthrie’s third

amended complaint with prejudice. Guthrie’s complaint, though rambling and

disjointed, suggests that he attempted to comply with Rule 10(b) and the earlier

instructions of the district court. Guthrie stated his claims in numbered paragraphs

and identified what action by each defendant corresponded to each claim. See Fed.


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R. Civ. P. 10(b). If the district court intended to dismiss Guthrie’s complaint for

lack of subject matter jurisdiction based on a failure to exhaust administrative

remedies, that dismissal should have been without prejudice. See Stalley ex rel.

United States v. Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1234–35

(11th Cir. 2008). A dismissal with prejudice is “an extreme sanction that may be

properly imposed only when: (1) a party engages in a clear pattern of delay or

willful contempt (contumacious conduct); and (2) the district court specifically

finds that lesser sanctions would not suffice.” Betty K Agencies, Ltd. v. M/V

MONADA, 432 F.3d 1333, 1338–39 (11th Cir. 2005) (internal quotation marks

and citation omitted). The district court did not suggest that Guthrie acted with

willful contempt in filing his third amended complaint or that a lesser sanction

would not suffice to address his filings, and the record suggests that Guthrie was

making a good faith effort to comply with Rule 10(b) and the order of the district

court. Although grounds may exist to warrant dismissal of Guthrie’s complaint

with prejudice, the district court erred when it dismissed the complaint solely for

failure to comply with its order and Rule 10(b).

      We VACATE the order dismissing Guthrie’s complaint and REMAND for

further proceedings.




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