                                                                         FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   July 16, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 09-1505
          v.                                             (D. of Colo.)
 ALBERT CELIO,                               (D.C. Nos. 1:08-CV-2088-CMA and
                                                   1:01-CR-00165-CMA)
               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges. **


      Albert Celio, proceeding pro se, 1 seeks to appeal the dismissal with

prejudice of his amended “Motion to Vacate, Set Aside, or Correct Sentence

Pursuant to 28 U.S.C. § 2255,” dated April 28, 2009. The district court dismissed


      *
         This order and judgment is not binding precedent except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
      1
         While a “pro se litigant’s pleadings are to be construed liberally and held
to a less stringent standard than formal pleadings drafted by lawyers,” we will not
“assume the role of advocate for the pro se litigant.” Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991).
Celio’s motion for failing to file a short and plain statement of his claims. We

exercise jurisdiction under 28 U.S.C. §§ 1291 and 2253, and GRANT Celio a

Certificate of Appealability (COA), 2 REVERSE the dismissal of his motion, and

REMAND for the district court to provide further guidance to Celio regarding the

form of his motion. 3

                                   I. Background

      In 2001, Celio was indicted for dispensing and distributing a controlled

substance in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). After a jury trial in

2005, Celio was convicted on four counts related to Percocet prescriptions he

illegally wrote for an undercover Denver police officer. Celio was sentenced to

27 months’ imprisonment and three years of supervised release.




      2
         “Title 28 U.S.C. § 2253 governs our review of a district court’s denial of
a habeas petition. Under § 2253, we must grant a COA to a habeas petitioner
before he may proceed in our court. A COA may issue ‘only if the applicant has
made a substantial showing of the denial of a constitutional right.’” United States
v. Shipp, 589 F.3d 1084, 1087 (10th Cir. 2009) (quoting 28 U.S.C. § 2253(c)(2)).
“[W]hen the district court denies a habeas petition on procedural grounds . . . a
COA should issue . . . [if] jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right, and . . .
whether the district court was correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 478 (2000). Our reversal of the district court’s decision
entails the conclusion that “jurists of reason would find it debatable . . . whether
the district court was correct in its procedural ruling.”
      3
         Celio also moves “for clarification to the futility in filing cases, appeals,
or motions by pro se litigants.” Celio essentially asks this court to disprove
various allegations he makes against the legal system. We decline to engage in
this exercise because it is unrelated to the merits of his habeas appeal.

                                          -2-
      Celio filed his first motion on September 26, 2008. The motion, which

presents 12 primary claims, appears to be based on a standard habeas form.

However, the motion refers to attached memoranda for the substance of the

allegations and supporting facts. Those memoranda, in turn, by our count total

211 pages and refer to an additional 78 attachments. The magistrate judge found

Celio’s motion did not constitute a “short and plain statement” of his claims per

Rule 8 of the Federal Rules of Civil Procedure, and the judge ordered Celio to

amend his motion to substantially follow the standard habeas form. Apart from

reciting the language of Rule 8, the magistrate judge’s guidance to Celio

regarding the form of his motion, in its entirety, was the following:

      [B]urying claims in the middle of a lengthy supporting memorandum
      does not substantially follow the form § 2255 motion . . . . Taken
      together, Rules 8(a) and (d)(1) underscore the emphasis placed on
      clarity and brevity by the federal pleading rules. Prolix, vague, or
      unintelligible pleadings violate the requirements of Rule 8. Movant’s
      claims are not presented in a clear and concise manner that allows the
      Court and the government to know precisely how Movant believes his
      rights have been violated and why he believes he is entitled to
      relief. . . . Movant must present his claims clearly and concisely in a
      manner that substantially follows either the form appended to the Rules
      Governing Section 2255 Proceedings or the Court’s own form
      motion . . . .

ROA, Vol. 3 at 38–39.

      Celio filed a second motion on October 31, 2008. The second motion is 35

pages long, states 12 primary claims with at least 158 issues, and refers to

supporting memoranda totaling 255 pages. Nonetheless, Celio did summarize his


                                         -3-
claims using the standard habeas form as the magistrate judge had instructed.

Once again, the magistrate judge found Celio’s motion violated Rule 8 and

ordered Celio to file an amended motion that followed the court’s pleading rules.

The magistrate judge concluded “Mr. Celio’s second Motion suffers from all of

the same defects pointed out by the court about his first Motion,” but provided no

additional guidance. Id. at 337. The order required Celio to file an amended

motion “that complies with the requirements specified in this Order” and the

magistrate judge’s previous order, and the order warned “[f]ailure to file a second

amended Motion within the time allowed may result in denial of the Motion . . .

and dismissal of this civil action without further notice.” Id. at 338.

      Celio filed a third motion on April 20, 2009. The third motion presents

numerous and inconsistently-numbered claims. Along with the third motion,

Celio requested an extension of time to file a new motion and supporting

memorandum. The magistrate judge granted Celio’s request for an extension of

time, and eight days later, Celio filed a fourth motion. The fourth motion,

attachments, and a subsequent addendum, total 296 pages.

      In response to Celio’s fourth submission, the magistrate judge

recommended dismissing Celio’s motion with prejudice. The magistrate judge

found Celio had repeatedly failed to comply with Rule 8 by not providing a short

and plain statement of his claims. In addition, the magistrate judge found

portions of Celio’s motions rambling and incomprehensible. After weighing the

                                          -4-
factors in Ehrenhaus v. Reynolds, 965 F.2d 916 (10th Cir. 1992), the district court

adopted the magistrate judge’s recommendation, and dismissed Celio’s motion

with prejudice.

                                   II. Discussion

      The district court dismissed Celio’s motion because it did not constitute “a

short and plain statement” of his claims. See F ED . R. C IV . P. 8(a). We review a

dismissal based on a violation of the federal rules for an abuse of discretion. See

Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1161 (10th Cir. 2007). 4

We have held a district court must consider five criteria before dismissing a case

in this circumstance: “(1) the degree of actual prejudice to the defendant; (2) the

amount of interference with the judicial process; (3) the culpability of the litigant;

(4) whether the court warned the party in advance that dismissal of the action

would be a likely sanction for noncompliance; and (5) the efficacy of lesser

sanctions.” Ehrenhaus, 965 F.2d at 921 (internal citations omitted).




      4
         Rule 41(b) of the Federal Rules of Civil Procedure provides: “a defendant
may move to dismiss the action or any claim against it.” “Although the language
of Rule 41(b) requires that the defendant file a motion to dismiss, the Rule has
long been interpreted to permit courts to dismiss actions sua sponte for a
plaintiff’s failure to prosecute or comply with the rules of civil procedure or
court’s orders.” Olsen v. Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003).
“And, to be sure, a failure to satisfy Rule 8 can supply a basis for dismissal: Rule
41(b) specifically authorizes a district court to dismiss an action for failing to
comply with any aspect of the Federal Rules of Civil Procedure.” Nasious, 492
F.3d at 1161.

                                         -5-
      As to the first and second factors, “[t]his court has long recognized that

defendants are prejudiced by having to respond to pleadings [that are] wordy and

unwieldy,” and “district judges . . . have their task made immeasurably more

difficult by pleadings [that are] rambling . . . .” Nasious, 492 F.3d at 1162–63.

We are confident Celio’s final, 109-page motion and hundreds of pages of

attachments weigh in favor of dismissal under the first two Ehrenhaus factors.

Cf. id. at 1161 (stating a complaint “running some 63 pages” and described as

“[n]o model of clarity” was appropriate to dismiss under the first two Ehrenhaus

factors).

      The third and fourth Ehrenhaus factors, however, weigh against dismissal

with prejudice. “The [Ehrenhaus] notice and culpability tests are in some sense

the opposite sides of the same coin . . . for the culpability of a pro se litigant for

filing a still-prolix amended complaint depends in great measure on the usefulness

of the notice he or she has received from the court . . . .” Id. at 1163.

      Here, while the magistrate judge provided Celio some general notice of the

motion’s deficiency, Nasious suggests a broader approach. The magistrate judge

simply recited Rule 8’s language and admonished Celio to make the motion

clearer. After the magistrate judge’s first order, it appears Celio attempted to

comply by using the standard habeas form’s format, yet the usefulness of the form

may have been eroded when Celio attached lengthy supporting memoranda and




                                           -6-
documents. Celio’s attempts to use the form suggest he was not belligerent to the

magistrate judge’s orders but genuinely did not understand Rule 8’s requirements.

      Courts have “obligations to pro se litigants” to provide “some modest

additional explanation” regarding the format of filings because they “are not

expected to understand what recitations are legally essential and which are

superfluous.” Id. We note the correct balance in an initial motion between

making bare allegations and complying with the “short and plain statement”

requirement may be difficult for pro se litigants to understand given the Supreme

Court’s recent tightening of pleading standards. See Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (holding a pleading may survive a motion to

dismiss only if it contains “[f]actual allegations . . . enough to raise a right to

relief above the speculative level”). The court’s obligation to provide guidance to

pro se litigants is especially important where the sanction is dismissal without the

opportunity to resubmit.

      Under Nasious, the court should “advise a pro se litigant that, to state a

claim in federal court, a complaint must explain what each defendant did to him

or her; when the defendant did it; how the defendant’s action harmed him or her;

and, what specific legal right the plaintiff believes the defendant violated.”

Nasious, 492 F.3d at 1163. In the circumstances here, we conclude the claimant

should have been given advice of this sort before dismissal with prejudice.




                                           -7-
      In closing, we share the district court’s frustration with lengthy

submissions, and plaintiffs would be wise to acknowledge the wisdom of

“mak[ing] your points and ask[ing] for your relief in a blunt, straightforward

manner,” always “valu[ing] clarity above all other elements of style.” A NTONIN

S CALIA & B RYAN A. G ARNER , M AKING Y OUR C ASE : T HE A RT OF P ERSUADING

J UDGES 107 (2008).

                                  III. Conclusion

      For the foregoing reasons, we GRANT Celio a COA, REVERSE the

dismissal of his motion, and REMAND the case to the district court for further

proceedings.

                                                    ENTERED FOR THE COURT
                                                    PER CURIAM




                                         -8-
