                                                         FILED
                                             United States Court of Appeals
                 UNITED STATES COURT OF APPEALS      Tenth Circuit

                       FOR THE TENTH CIRCUIT                     April 26, 2017
                       _________________________________
                                                              Elisabeth A. Shumaker
                                                                  Clerk of Court
BRANDON BAKER,

       Plaintiff-Appellant,
                                                    No. 16-1435
v.                                        (D.C. No. 1:15-CV-01920-MJW)
                                                     (D. Colo.)
CITY OF LOVELAND; LOVELAND
POLICE DEPARTMENT; LT RICK
ARNOLD, in official and individual
capacity; SGT.JEFF PYLE, in
official and individual capacity;
OFFICER ANDRES SALAZAR, in
official and individual capacity;
LARIMER COUNTY DA GORDON
MCLAUGHLIN, in official and
individual capacity,

       Defendants-Appellees.

                       _________________________________

                       ORDER AND JUDGMENT *
                       _________________________________

Before HARTZ, HOLMES, and BACHARACH, Circuit Judges.
                 _________________________________



*
      We conclude that oral argument would not materially help us to
decide this appeal. As a result, we are deciding the appeal based on the
briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
      Mr. Brandon Baker sued the City of Loveland, the Loveland Police

Department, Mr. Rick Arnold, Mr. Jeff Pyle, Mr. Andres Salazar, and Mr.

Gordon McLaughlin. Mr. Baker’s amended complaint spans 42 single-

spaced pages, contains 398 paragraphs, and includes 17 causes of action.

The district court dismissed the amended complaint without prejudice for

failure to satisfy Rule 8 of the Federal Rules of Civil Procedure.

      Mr. Baker appeals, arguing that

           the defendants are subject to judicial estoppel,

           the district court should have stricken the immaterial parts of
            the amended complaint rather than order dismissal, and

           the cause of action consists of a “primary right” and a breach,
            not a remedy.

In addressing whether the district court erred in dismissing the amended

complaint, we must affirm unless the district court abused its discretion.

See Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1161-62

(10th Cir. 2007). In our view, the district court acted within its discretion.

Therefore, we affirm.

I.    The district court had discretion to order dismissal based on a
      failure to comply with Rule 8.

      Under Rule 8 of the Federal Rules of Civil Procedure, the complaint

must contain “a short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a). This requirement is

designed to force plaintiffs “to state their claims intelligibly so as to

                                        2
inform the defendants of the legal claims being asserted.” Mann v.

Boatright, 477 F.3d 1140, 1148 (10th Cir. 2007). 1

     Prolixity of a complaint undermines the utility of the complaint. See

Knox v. First Sec. Bank of Utah, 196 F.2d 112, 117 (10th Cir. 1952) (“The

purpose of [Rule 8(a)] is to eliminate prolixity in pleading and to achieve

brevity, simplicity, and clarity.”). Thus, we have held that a complaint can

run afoul of Rule 8 through unnecessary length and burying of material

allegations in “‘a morass of irrelevancies.’” Mann, 477 F.3d at 1148

(quoting Garst v. Lockheed-Martin Corp., 328 F.3d 374, 378 (7th Cir.

2003)).

     The district court concluded that Mr. Baker had failed to comply with

Rule 8, and this conclusion was correct. The amended complaint is

          filled with unnecessary legal arguments and detail and

          lacking clarity about what each defendant allegedly did to incur
           liability.

In 42 single-spaced pages, the amended complaint includes numerous

matters that are both unnecessary and irrelevant at this stage:

          argument for abstention under Pullman and Younger (pp. 1-2),

1
       Mr. Baker is pro se, so we liberally construe the amended complaint.
Jordan v. Sosa, 654 F.3d 1012, 1018 n.8 (10th Cir. 2011). Nonetheless, pro
se litigants must comply with the Federal Rules of Civil Procedure. See
Ogden v. San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994) (“[A]n
appellant’s pro se status does not excuse the obligation of any litigant to
comply with the fundamental requirements of the Federal Rules of Civil
Procedure.”).

                                      3
           reference to a bar complaint against one of the defendants
            (p. 5),

           legal argument about the accrual date for claims of malicious
            prosecution, false, arrest, and false imprisonment (p. 6),

           legal argument about the applicable law on tolling of the
            limitations period (p. 7),

           legal argument about the length of the limitations period for the
            § 1983 claims (p. 9),

           legal argument about summary judgment (p. 13),

           legal argument about strict scrutiny of the state’s alleged
            inhibition of religious practice (pp. 15, 17),

           reference to past stops by officers who are not parties (without
            any apparent allegation of wrongdoing) (p. 19),

           legal argument about Colorado’s suppression of improperly
            obtained evidence (p. 21),

           legal argument about the unreliability of the sense of smell
            (p. 21), and

           legal argument about the determination of probable cause
            (p. 27).

      Buried in the amended complaint are allegations that might alert

particular defendants to allegations of wrongdoing. But other allegations

appear to lump all of the defendants together, without saying who did what

or identifying conduct that would trigger liability. Thus, the district court

properly dismissed the amended complaint.




                                      4
II.    The doctrine of judicial estoppel does not apply.

      Mr. Baker argues that the defendants changed their position,

triggering judicial estoppel, which in turn foreclosed challenges to the

amended complaint. 2 This characterization is incorrect.

      The original complaint was filed in another case. In that case, the

district court explained that the complaint had failed to satisfy Rule 8.

Order, passim, Baker v. Loveland, No. 15-CV-1864-LTB (D. Colo. Aug.

31, 2015), ECF No. 5. The problem was the complaint’s vagueness. Id. at

2-3. The court told Mr. Baker that to state a claim in federal court, he had

to specify (1) what that defendant had done, (2) when the defendant had

done it, (3) how the defendant’s action had resulted in harm; and (4) what

specific legal right the defendant had violated. Id at 3 (bold typeface

omitted). 3




2
      The doctrine of judicial estoppel prohibits parties from changing
positions after prevailing based on the earlier positions. Johnson v. Lindon
City Corp., 405 F.3d 1065, 1069 (10th Cir. 2005).
3
      The original complaint and order are not in our record on appeal. We
take judicial notice of these documents because they apparently are what
Mr. Baker is referring to in his opening brief. See St. Louis Baptist Temple,
Inc. v. FDIC, 605 F.2d 1169, 1172 (10th Cir. 1979) (“[F]ederal courts, in
appropriate circumstances, may take notice of proceedings in other courts,
both within and without the federal judicial system, if those proceedings
have a direct relation to matters at issue.”).

                                      5
       In an amended complaint newly filed in our case, 4 Mr. Baker again

failed to explain what each defendant had done, when the defendant had

done it, how it had resulted in harm, and what specific right had been

violated. Instead, Mr. Baker added unnecessary legal arguments and

details. These additions did not cure the earlier pleading defects, and the

doctrine of judicial estoppel does not apply.

III.   The district court had the discretion to dismiss the amended
       complaint rather than strike the immaterial parts.

       Mr. Baker argues that the district court should have stricken the

excess allegations rather than dismiss the amended complaint. In different

circumstances, striking the excess allegations might suffice as a remedy.

See Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) (stating that

when the complaint is not short and plain, the district court can strike the

redundant or immaterial parts under Rule 12(f)); see also Davis v. Ruby

Foods, Inc., 269 F.3d 818 (7th Cir. 2001) (holding that when the complaint

otherwise satisfied Rule 8, inclusion of irrelevant material did not justify

dismissal of the suit). But sifting through the excess allegations here would

have imposed a considerable burden, and Mr. Baker never suggested in

district court that he would withdraw his extraneous allegations or legal

arguments. In these circumstances, the district court had the discretion to



4
      Mr. Baker did not try to rectify these deficiencies in the earlier case.
Instead, he filed the amended complaint in our case.
                                       6
dismiss the amended complaint rather than sua sponte order the striking of

immaterial allegations.

IV.   Mr. Baker’s characterization of a “primary right” does not affect
      the outcome.

      Mr. Baker also argues that the dismissal was erroneous because a

cause of action consists of a primary right and breach, as opposed to a

remedy. But this observation does not affect the district court’s reasons for

ordering dismissal. Thus, Mr. Baker’s characterization of the cause of

action would not affect the outcome of this appeal.

V.    Conclusion

      In the amended complaint, Mr. Baker failed to provide a short and

plain statement of the claims. As a result, the district court had the

discretion to dismiss the amended complaint, without prejudice, for

noncompliance with Rule 8. We affirm. 5



                                    Entered for the Court



                                    Robert E. Bacharach
                                    Circuit Judge




5
     Mr. Baker requests leave to proceed in forma pauperis. We grant this
request.
                                       7
