                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                  February 25, 2009
                                 TENTH CIRCUIT
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court

 JUAN OSCAR FUENTES,

               Plaintiff-Appellant,                     No. 08-2162
          v.                                       District of New Mexico
 MAYOR MARTIN CHAVEZ; CITY                  (D.C. No. 2:07-CV-0714-RB-KBM)
 OF ALBUQUERQUE; NEW MEXICO
 POLICE DEPARTMENT, Field
 Service Bureau Impact Team;
 ARTURO SANCHEZ, Bernalillo
 County Officer; B. LAMPIRIS,
 Detective; A. GARCIA; D.
 CHAPMAN; FNU ROMERO; H.
 ROGERS; C. SAYLOR; FNU
 OLIVARES; M. ELRICK, Police
 Officers,

               Defendants - Appellees.




                            ORDER AND JUDGMENT *




      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
Before TACHA, KELLY and McCONNELL, Circuit Judges.




      Juan Oscar Fuentes, a state prisoner proceeding pro se, has appealed the

dismissal of his § 1983 claim. After considering Mr. Fuentes’s complaint and

providing him the opportunity to amend, the district court found he had failed to

state a claim and dismissed the action pursuant to 28 U.S.C. § 1915(e)(2) and Fed.

R. Civ. P. 12(b)(6). Mr. Fuentes has appealed, and we now affirm.




                                    Background

      In July 2007, Mr. Fuentes, a state prisoner in Albuquerque, New Mexico,

filed a complaint under 42 U.S.C. § 1983 alleging that a number of state officials,

most of whom were with the police department, had deprived him of his

constitutional rights. The basis for his claim is almost impossible to discern from

that original complaint. The most specific portion is Claim One, which alleges

“Tampering/Conspiracy (Due Process Clause)” and lists as factual support

“neglect of all evidence.” Claim Two says only “Violation(s) of my

Constitutional right(s) under 1, 4, 5, 6, 8, 14 Amendment(s).” Claim Three is for

“cruel and unusual punishment, excessive force, under duress (force) to take or

put, slander, causing bodily harm, mental and/or emotional, pain & anguish,

deliberate indifference, serious needs of liberty, property, rights, privileges,


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immunities, secured by the Constitution and laws.” He sought injunctive relief

and monetary damages of $90 million.

      The district court referred the action to a magistrate judge, who reviewed

the complaint sua sponte under 28 U.S.C. § 1915(e)(2) and Fed. R. Civ. P.

12(b)(6). The magistrate judge’s January 31, 2008 order found that Mr. Fuentes’s

“complaint contains only conclusory assertions of constitutional violations with

no supporting factual allegations.” Mem. Op. at 2. Her order gave him the

opportunity to amend, warning that failure to comply could result in dismissal.

      Mr. Fuentes never amended his complaint. He did, however, submit a

motion for summary judgment on June 25, 2008, which the district court

considered when it reevaluated the original complaint. The court found that even

supplemented by this motion, the complaint failed to allege enough facts to state a

plausible claim. Accordingly, it dismissed Mr. Fuentes’s complaint with

prejudice.

                                     Discussion

      To survive a motion to dismiss, a plaintiff must allege “enough facts to

state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007). These factual allegations “must be enough to raise a

right to relief above the speculative level.” Id. at 555. Even under the liberal

standard by which we judge a pro se litigant’s pleadings, see Ledbetter v. City of


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Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003), Mr. Fuentes has failed to meet this

pleading requirement. He has alleged no facts whatsoever, and it is impossible to

decipher the basis for his claim.

      Apart from a general allegation that his constitutional rights have been

violated—specifically, those rights protected by the First, Fourth, Fifth, Sixth,

Eighth, and Fourteenth Amendments 2—Mr. Fuentes has provided no indication of

what, precisely, has been done to him. He has not told how the defendants

violated these rights. The most generous reading of his complaint, coupled with

his summary judgment motion, suggests that he is objecting to his continued

confinement, for which he believes there is a lack of evidentiary support. Even

granting him this generous reading, though, Mr. Fuentes has failed to allege any

facts explaining why his confinement lacks evidentiary support. Confusing,

conclusory statements of constitutional violations will not sustain a § 1983 claim

beyond a motion to dismiss. The court below gave him an opportunity to cure

these deficiencies, but he failed to do so. We agree with the district court that he

has failed to state a claim upon which relief may be granted and that the

complaint was rightly dismissed.




      2
      His appellate brief has added even more amendments to the list, though
without adding any additional explanation as to the nature of the violation. He
now claims to be bringing claims under the Seventh, Thirteenth, and Fifteenth
Amendments, as well as those previously mentioned.

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      We also agree with the district court’s decision to dismiss with prejudice

rather than without, though we recognize that doing so is “a significantly harsher

remedy” for which the court must “exercise soundly its discretion.” Nasious v.

Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1162 (10th Cir. 2007). In

determining the propriety of dismissal under Fed. R. Civ. P. 41(b), we look to

five criteria: “(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.”

Id. (quoting Olsen v Mapes, 333 F.3d 1199, 1204 (10th Cir. 2003)). Those

criteria are present here. The defendants and the courts both are prejudiced by

having to sift through “rambling, and sometimes incomprehensible” pleadings, id.

at 1163, unable to understand what claims are even being brought. Mr. Fuentes

was instructed to amend his complaint to include facts, but his response added

even more confusion. While we are more reluctant to dismiss a pro se plaintiff’s

complaint with prejudice, as it is more difficult to determine whether he has truly

grasped how to cure the defects in his complaint, the court did not simply tell Mr.

Fuentes to “comply with the pleading requirements” but told him plainly to add

more facts. He did not do so, and his similarly confusing brief before this court

suggests another opportunity to amend would be futile as well. There is a limit to

how many bites even a pro se plaintiff can have at the apple, and it was not an

                                           -5-
abuse of discretion for the district court to find that Mr. Fuentes had met that

limit.

                                      Conclusion

         The judgment of the United States District Court for the District of

New Mexico is AFFIRMED. Appellant’s motion to proceed in forma pauperis is

also DENIED. We remind him of his obligation to make immediate payment of

the full $455 filing fee.

                                                      Entered for the Court,

                                                      Michael W. McConnell
                                                      Circuit Judge




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