                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              JUN 5 2001
                                 TENTH CIRCUIT
                            __________________________                   PATRICK FISHER
                                                                                  Clerk

 MICHAEL DUANE WINDSOR; F. DAVID
 SLUSHER; KIPLING KEY,

          Plaintiffs-Appellants,
                                                                  No. 01-1082
 v.                                                                 (D. Colo.)
                                                              (D.Ct. No. 00-Z-2059)
 COLORADO DEPARTMENT OF CORRECTIONS;
 BILL OWENS; JOHN W. SUTHERS; JOSEPH T.
 McGARRY; DON LAWSON; TONY SCHENK;
 ORVILLE NEUFELDS; FRANK E. RUYBALID;
 RICHARD A. SOARES; JUDY BULLARD; TED
 LAURENCE; PHYLLIS GRISWOULD; GISELA
 WALKER; CATHIE HOLST; ROSE HEDGEMAN;
 BRAD ROCKWELL, in their official and personal
 capacities; John/Jane Doe(s),

          Defendants-Appellees.
                        ____________________________

                             ORDER AND JUDGMENT *


Before SEYMOUR, McKAY, and BRORBY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined




      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
unanimously that oral argument would not materially assist 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.



      Appellants Michael Duane Windsor, F. David Slusher, and Kipling Key,

state inmates appearing pro se, appeal the district court’s decision dismissing

their prisoner civil rights complaint, brought pursuant to 42 U.S.C. § 1983. The

district court dismissed Appellants’ complaint for failure to prosecute because

they did not file an amended complaint, as ordered, in compliance with the

pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. We

exercise our jurisdiction under 28 U.S.C. § 1291 and affirm.



      Appellants and another individual, James Alan Braxton, initiated a 42

U.S.C. § 1983 action by filing a standard § 1983 complaint form and hundreds of

attachments. The district court assigned the matter to a magistrate judge, who

issued an order finding the complaint deficient because it failed to comply with

the pleading requirements of Fed. R. of Civ. P. 8. The magistrate judge found the

complaint, together with the attachments, failed to sufficiently identify the

specific injuries suffered, and presented only “long-winded, chronological

recitations of acts or events without stating clearly how each Plaintiff’s


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constitutional rights were violated.” In addition, the magistrate judge concluded

“[n]either the Court nor Defendants are obligated to search through the Complaint

and its voluminous exhibits in order to glean a clear and succinct statement of

each claim for relief. It is Plaintiffs’ responsibility to edit and organize their

claims and supporting allegations into a manageable format.” Besides detailing

the deficiencies in the complaint, the magistrate judge also explained the basic

pleading requirements of Fed. R. Civ. P. 8. The magistrate judge then ordered the

Plaintiffs to file, within thirty days from the date of the magistrate judge’s order,

an amended complaint complying with Fed. R. Civ. P. 8, and instructed that

failure to do so would result in dismissal without further notice.



      After the magistrate judge issued its order, Plaintiff James Alan Braxton

filed a motion to dismiss his civil rights complaint, explaining he failed to

exhaust the administrative grievance procedures, and asking his complaint be

dismissed separately from the other Plaintiffs. The district court issued an order

of voluntary dismissal, dismissing Mr. Braxton without prejudice. The remaining

Plaintiffs filed an objection to the magistrate judge’s order, listing reasons 1) why

they were unable to comply with the order, and 2) their intent to stand on their

complaint, which they described as “simple, concise, and direct,” containing all

the material facts supporting their case. The district court determined the


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objections lacked merit. The district court further noted the Plaintiffs failed to

file an amended complaint as ordered and that the magistrate judge had informed

them failure to do so would result in dismissal. Accordingly, the district court

dismissed their complaint without prejudice for failure to prosecute.



      On appeal, the three named Appellants present the following issues for

review:

             Was it an abuse of discretion for the District Court to dismiss
      Appellants’ Complaint: (i) when the Complaint met none of the
      grounds for dismissal pursuant to 28 U.S.C. § 1915A(b); (ii) when
      the District Court[’s] application of Rule 8 Fed.R.Civ.P. was
      overbroad [sic] as applied to Plaintiffs; (iii) when Plaintiffs, who are
      prisoners, are required by rule to use the court’s forms and follow the
      rules accompanying that form; (iv) when Plaintiffs have a protected
      right to avoid the “strikes” under the PLRA, by carefully bringing all
      available information; (v) when the pleadings state a valid claim on
      which the Plaintiffs could prevail, and the court can reasonably read
      them; (vi) when Plaintiffs paid the filing fee in full?

In addition, Appellants suggest the complaint is lengthy and encompasses 504

paragraphs and several hundred exhibits because of the requirement they state all

facts necessary to show the culpability of the seventeen named Defendants. They

surmise the magistrate judge should have set forth the facts and documents to be

omitted rather than dismiss their complaint simply because he was annoyed by its

length. Finally, they note the district court somehow improperly construed their

intent to stand on their complaint, rather than to amend it, as a “failure to


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prosecute.”



      The decision to dismiss an action without prejudice for failure to comply

with Fed. R. Civ. P. 8 is within the sound discretion of the district court, and we

review the court’s decision for an abuse of discretion. See Kuehl v. FDIC, 8 F.3d

905, 908 (1st Cir. 1993), cert. denied, 511 U.S. 1034 (1994); Atkins v. Northwest

Airlines, Inc., 967 F.2d 1197, 1203 (8th Cir. 1992); Salahuddin v. Cuomo, 861

F.2d 40, 42 (2d Cir. 1988). Rule 8(a) requires Appellants’ complaint contain “a

short and plain statement of the grounds upon which the court’s jurisdiction

depends, ... (2) a short and plain statement of the claim showing that [they are]

entitled to relief, and (3) a demand for judgment for the relief [they] seek[]. Fed.

R. Civ. P. 8(a). Although we construe Appellants’ pro se pleadings liberally, they

must follow the rules of federal civil and appellate procedure, including Fed. R.

Civ. P. 8. See Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994), cert.

denied, 513 U.S. 1090 (1995). In addition, the Federal Rules of Civil Procedure

allow a district court to dismiss an action for failure to prosecute or comply with

a court order. See Fed. R. Civ. P. 41(b). Thus, we review for abuse of discretion

the district court’s dismissal of Appellants’ § 1983 suit for failure to file an

amended complaint in contravention of a court order. See Mobley v. McCormick,

40 F.3d 337, 340 & n.1 (10th Cir. 1994).


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      Applying these principles, we have generally reviewed Appellants’ lengthy

complaint and hundreds of attachments in support thereof. In the interest of

judicial economy, we decline to duplicate the same analysis of the district court

and magistrate judge here, other than to conclude, for the same reasons, that the

complaint fails to comply with the pleading requirements of Fed. R. Civ. P. 8.

The sheer volume of the complaint and its attachments fail to give the Defendants

fair notice of the basis of the claims against them so they may respond, or allow

this court to conclude the allegations, if proven, show Appellants in this case are

entitled to relief. See Monument Builders of Greater Kansas City, Inc. v.

American Cemetery Ass’n of Kansas, 891 F.2d 1473, 1480 (10th Cir. 1989), cert.

denied, 495 U.S. 930 (1990)). In addition, Appellants’ decision to “stand by”

their complaint is a risk they took when the magistrate judge ordered them to file

an amended complaint in accordance with Fed. R. Civ. P. 8 and informed them

failure to do so would result in dismissal. For this reason, we conclude the

district court did not abuse its discretion in ordering Appellants to file an

amended complaint in compliance with Fed. R. Civ. P. 8, or by dismissing the

§1983 complaint without prejudice for failure to prosecute when Appellants failed

to file an amended complaint.



      As to Appellants’ other issues on appeal, we conclude for the same reasons


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they are equally without merit, regardless of the large number of named

Defendants or the fact Appellants paid the filing fee and used the court form

required for bringing a prisoner § 1983 action. Moreover, while the magistrate

judge and district court are required to construe the pro se complaint in this case

liberally, they are not required to construct Appellants’ claims or grounds of relief

for them or provide specific instructions on what facts or documents to omit. See

Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).



      Finally, we have determined “a dismissal without prejudice counts as a

strike, so long as the dismissal is made because the action is frivolous, malicious,

or fails to state a claim.” Day v. Maynard, 200 F.3d 665, 557 (10th Cir. 1999)

(per curiam). In this case, the district court did not dismiss Appellants’ § 1983

complaint without prejudice for failure to state a claim, but for failure to

prosecute their case because they did not file an amended complaint in

compliance with Fed. R. Civ. P. 8 as ordered. Therefore, under the circumstances

presented in this case, we conclude the three-strikes provision of which

Appellants complain does not apply here.



      For these and substantially the same reasons in the magistrate judge’s

December 18, 2000 Order Directing Plaintiffs to File Amended Complaint and the


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district court’s February 6, 2001 Order and Judgment of Dismissal, we AFFIRM

the district court’s dismissal of Appellants’ § 1983 complaint without prejudice.



      The filing of this order and judgment renders moot Appellants’ Motion to

Suspend Rules and to Expedite its Decision.



                                      Entered by the Court:

                                      WADE BRORBY
                                      United States Circuit Judge




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