                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           JAN 16 2001
                                     TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 EDUARDO RIVERO PROENZA,

           Plaintiff - Appellant,
 vs.                                                     No. 99-1423
                                                     (D.C. No. 98-M-677)
 JAMES GRECO; H. GRAY,                                    (D. Colo.)
 Lieutenant; T. LEADER, Officer, K.
 PLOESSEL, Officer; RODERICK
 SCHULTZ, Officer; DOUGLAS
 SMITH, Officer; GREGORY
 WALKER, Officer; DAVID GRIMES,
 Officer; JAMES BOND, Officer,

           Defendants - Appellees.


                              ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, Circuit Judges. **


       Plaintiff-Appellant Eduardo Rivero Proenza, an inmate appearing pro se

and in forma pauperis, appeals the district court’s dismissal of his civil claims


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
       **
         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.
brought against various federal defendants. Mr. Proenza is a Cuban national in

the custody of the Bureau of Prisons (BOP) because he is an excludable alien.

The INS has declined his request to be paroled into the community based upon an

unsuccessful previous period of parole. The essence of Mr. Proenza’s vastly

overlong complaint (forty-three pages of single-spaced prose with 96 documents

attached as exhibits) and pleadings is that he should be paroled into the

community, and he seeks equitable relief changing his status. The complaint also

contains excessive force and conditions of confinement claims against various

defendants in their individual capacities. These claims pertain to his confinement

in the segregation unit of the High Security U.S. Penitentiary operated by the

BOP.

       Briefly, the district court construed Mr. Proenza’s request for equitable

parole as a request for habeas relief. The district court dismissed this claim along

with several defendants including Defendants Reno, Meissner, Hawk, Greene and

Simson because Mr. Proenza was no longer detained in the district of Colorado.

R. doc. 53 at 1-2. The district court also denied various other motions brought by

Mr. Proenza, including one for appointment of counsel, and determined that his

Bivens action could proceed only against Defendants-Appellees Greco, Gray,

Leader, Ploessel, Schultz, Smith, Walker, Grimes and Bond. Id. The district

court denied reconsideration. R. doc. 56. The district court later granted the


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remaining Defendants-Appellees’ motion to dismiss Mr. Proenza’s Bivens claims,

and entered judgment against him on all claims. R. doc. 70 & 71.

      The district court based its dismissal of Mr. Proenza’s Bivens claims on

two grounds: failure to exhaust administrative remedies pursuant to 42 U.S.C. §

1997e(a) of the Prisoner Litigation Reform Act and failure to sufficiently plead a

claim for relief as required by Fed. R. Civ. P. 8(a) and Fed. R. Civ. P. 8(e)(1). R.

doc. 70. Although the district court referred to Fed. R. Civ. P. 12(b)(1) and

(b)(6), it did not reach the merits of Mr. Proenza’s claims, instead concluding that

it was “not possible to ascertain what claims of relief may properly be asserted

against which individual defendants.” R. doc. 70 at 2. The dismissal appears to

be one under Fed. R. Civ. P. 8, requested by the Defendants-Appellees. R. doc.

57 at 12-14.

      On appeal, Mr. Proenza raises the following issues: (1) incorrect dismissal

for failure to state claims for relief within the district court’s jurisdiction; (2)

incorrect exclusion of Defendants Reno, Hawk, Meissner, Greene and Simson as

properly named defendants in Plaintiff’s Bivens action; (3) issue (2) restated; (4)

the repeated disregard by the court of facts and circumstances warranting the

appointment of counsel; and (5) the court’s disregard of several identifications of

mentioned or referred defendants provided by the Plaintiff in his “Affidavit to

Assist this Court in Locating and Identifying Defendants to Expedite Service,” as


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well as other described defendants. Mr. Proenza also challenges the district

court’s denial of his numerous motions.

      We review a Rule 8 dismissal for an abuse of discretion. Kuehl v. FDIC, 8

F.3d 905, 908 (1st Cir. 1993). The government confesses error with regard to the

district court’s dismissal of Defendants Leader, Ploessel, Schultz, and Smith

regarding various allegations of excessive force on January 17, 1997 (Leader), on

February 9, 1997 (Ploessel and Schultz), and on February 25, 1997, and April 5,

1997 (Smith). Aplee. Br. at 11-12 (conceding that Plaintiff had stated “well-

pleaded claims” under Fed. R. Civ. P. 12(b)(6) and the rules of liberal

construction). We have reviewed the complaint and conclude that these claims

are viable at this point. We also conclude that the claim regarding Ploessel’s

placement of Mr. Proenza in a cell with a “known contracted beater of other

inmates” is viable. R. doc. 3, at 21; cf. Farmer v. Brennan, 511 U.S. 825, 834-38

(1994). However, with respect to the remaining five defendants, the only viable

claim at this point is the claim against Gray arising from his actions on February

24, 1997. R. doc. 3, at 25 (alleging that Gray disregarded Mr. Proenza’s request

that he be moved to another cell after his allegedly insane cellmate threatened to

kill him), id. at 31-32 (alleging that Gray “permitt[ed] . . . mental harm to be

inflicted on the plaintiff”); cf. Zarnes v. Rhodes, 64 F.3d 285, 290 (7th Cir. 1995)

(holding that inmate had stated a claim where his complaint alleged that


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defendant knew that mentally ill inmate “presented an ‘imminent potential’ for

assault and that placing [the plaintiff] in a cell with [the mentally ill inmate]

posed a ‘substantial risk of danger’”). Dismissal of all other claims and

defendants is warranted given the pertinent legal standards, i.e., that respondeat

superior does not apply and Bivens liability can only lie for personal participation

of a defendant, see Kite v. Kelley, 546 F.2d 334, 338 (10th Cir.1976), and that a

plaintiff must allege a subjective and objective component when pursuing a

conditions of confinement claim. See Farmer, 511 U.S. at 834. Mr. Proenza’s

conclusory allegations that various supervisory defendants participated do not

come close to the direct, personal participation required for Bivens liability.

      Having concluded that certain allegations contained in the complaint are

viable at this point, we turn to Mr. Proenza’s failure to exhaust administrative

remedies. We review a dismissal on this basis de novo. Miller v. Menghini, 213

F.3d 1244, 1246 (10th Cir. 2000). In light of this circuit’s recent decision in

Miller, we hold that the district court correctly dismissed Mr. Proenza’s Bivens

claims for injunctive relief, but erred in dismissing his claims for monetary

damages. Id. (citing Garrett v. Hawk, 127 F.3d 1263, 1267 (10th Cir. 1997)).

      It appears that Mr. Proenza may have been seeking leave to amend his

complaint with his “Affidavit to Assist this Court in Locating and Identifying

Defendants to Expedit[e] Service,” R. doc. 45, insofar as identifying certain


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unnamed officials in the complaint. Insofar as the claims we are remanding, Mr.

Proenza may seek leave to amend his complaint. If he seeks leave to amend his

complaint, the proposed amended complaint must comply with Rule 8(a)’s

requirement of “a short and plain statement of the claim showing that the pleader

is entitled to relief” as well as all other relevant rules. Neither the defendants nor

the district court should be required to sort through hundreds of paragraphs in an

effort to identify the operative facts and theories of the complaint.

      Finally, the district court did not abuse its discretion in refusing to appoint

counsel for Mr. Proenza. We reject all other claims advanced by Mr. Proenza on

appeal.

      AFFIRMED in part; REVERSED in part and REMANDED for further

proceedings consistent with this order and judgment.

                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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