DLD-182                                              NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                          ____________

                              No. 11-1478
                             ____________

                       SCOTT J. BINSACK, SR.,
                                        Appellant,

                                   v.

                LACKAWANNA COUNTY PRISON; L.A.C.
            COMMISSIONERS, Individual & Official Capacity;
               L.A.C. PRISON BOARD, Individual & Official
            Capacity; WARDEN JENANE DONATE, Individual
             & Official Capacity; D.W. TIM BETTI, Individual
             & Official Capacity; D.W. PRICHARD, Individual
                & Official Capacity; CAPTAIN CHIARELLI,
               Individual & Official Capacity; LT. CARROLL,
           Individual & Official Capacity; C.O. JOE DOMINICK,
              Individual & Official Capacity; C.O. MAGOOSI,
          Individual & Official Capacity; C.O. JASON RAPFORD,
             Individual & Official Capacity; CORRECTIONAL
                 CARE INC, Individual & Official Capacity;
             DR. EDWARD ZALOGA, M.D., C.E.O., Individual
                & Official Capacity; JOHN AND JANE DOE
            MEDICAL PROVIDERS NURSES AND DOCTORS,
             Individual & Official Capacity; C.O. FRANK DOE
                  __________________________________

             On Appeal from the United States District Court
                  for the Middle District of Pennsylvania
                       (D.C. Civ. No. 4-10-cv-00535)
             District Judge: Honorable Christopher C. Conner
                __________________________________
         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
         or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

                                        May 12, 2011

                  Before: BARRY, FISHER and ROTH, Circuit Judges.

                                   (Filed: July 21, 2011 )
                                       ____________

                                         OPINION
                                       ____________

PER CURIAM

       Appellant Scott Binsack, Sr., a state prisoner, initiated a civil rights action, 42

U.S.C. § 1983, in the United States District Court for the Middle District of Pennsylvania

against numerous defendants by filing a title page to a complaint. In response to the

Magistrate Judge’s order to file an actual complaint, Binsack filed a Complaint and

“Exhibits,” see Docket Entry Nos. 20-21, totaling almost two hundred pages. Binsack

named 15 defendants and alleged federal constitutional violations and violations of state

law. He appeared to assert, at least in part, that, while detained at the Lackawanna

County Prison prior to being transferred to a state facility, he was denied medical care for

a period of about a week, inappropriately placed on suicide watch, and assaulted by other

inmates after they attempted to extort money from him. He may also have alleged a

retaliation claim. But most of the Complaint went into great detail about what Binsack

believed to be a smuggling operation at the county prison involving tobacco, drugs, and

cellular telephones, and Binsack’s belief that he had been identified as a snitch. The

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“Exhibits” contained additional narrative purportedly of a factual nature, copies of Sick

Call Requests in which Binsack sought medication for his acid reflux, a letter requesting

that defendant Dr. Zaloga refer him to an eye specialist for his pre-existing macular

degeneration, and certain other items of questionable relevance.

       The Magistrate Judge initially attempted to secure pro bono counsel for Binsack

but no attorney was willing to take the case. The complaint was served on the

defendants. Several of the defendants moved to dismiss the complaint pursuant to Fed.

R. Civ. Pro. 12(b)(6) for failure to state a claim upon which relief may be granted.

Certain other of the defendants, specifically, the medical defendants, moved for a more

definite statement pursuant to Fed. R. Civ. Pro. 12(e) (“A party may move for a more

definite statement of a pleading to which a responsive pleading is allowed but which is so

vague or ambiguous that the party cannot reasonably prepare a response.”). After

reviewing the defendants’ various arguments, the Magistrate Judge filed a Report and

Recommendation, in which he determined that the legal sufficiency of the complaint

could not be determined without a more definite statement. Citing Fed. R. Civ. Pro.

8(a)(2), the Magistrate Judge concluded that Binsack’s complaint, although voluminous,

was vague and ambiguous, and that he had failed to provide a short and plain statement

of each claim against each defendant: the defendants could not meaningfully respond to

his complaint. The Magistrate Judge recommended that Binsack be ordered to file an

amended complaint that complied with Rule 8(a).


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       The District Court adopted the Report and Recommendation, and ordered Binsack

to file an amended complaint that complied with Rule 8(a) and that provided a more

definite statement of claims. Binsack was warned that failure to do so could result in

dismissal of his action. About six weeks later, when no amended complaint had been

filed, the Magistrate Judge recommended that the action be dismissed pursuant to Rule

8(a). In an order entered on February 4, 2011, the District Court dismissed the action

under Rule 8(a).

       Binsack appeals. We have jurisdiction under 28 U.S.C. § 1291. Our Clerk

granted Binsack leave to appeal in forma pauperis and advised him that the appeal was

subject to summary dismissal under 28 U.S.C. § 1915(e)(2)(B) or summary affirmance

under Third Cir. LAR 27.4 and I.O.P. 10.6. He was invited to submit argument in

writing, but he has not done so.

       We will dismiss the appeal as frivolous. An appellant may prosecute his appeal

without prepayment of the fees, 28 U.S.C. § 1915(a)(1), but the in forma pauperis statute

provides that the Court shall dismiss the appeal at any time if the Court determines that it

is frivolous, 28 U.S.C. § 1915(e)(2)(B)(i). An appeal is frivolous when it lacks an

arguable basis either in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). We

review the District Court’s dismissal of a complaint under Rule 8 for an abuse of

discretion. See In re: Westinghouse Sec. Litig., 90 F.3d 696, 702 (3d Cir. 1996).




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       Federal Rule of Civil Procedure 8(a) requires a pleading to contain “a short and

plain statement of the grounds for the court’s jurisdiction” and “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. Pro.

8(a)(1), (2). Each averment must be “simple, concise, and direct.” Id. at 8(d)(1). “Taken

together,” Rules 8(a) and 8(d)(1) “underscore the emphasis placed on clarity and brevity

by the federal pleading rules.” In re: Westinghouse Sec. Litig., 90 F.3d at 702 (citation

omitted).

       We agree with the Magistrate Judge that Binsack’s complaint was anything but

“simple, concise, and direct.” Fed. R. Civ. Pro. 8(d)(1). It is so excessively voluminous

and unfocused as to be unintelligible. The compliant defies any attempt to meaningfully

answer or plead to it, and it left the defendants having to guess what of the many things

discussed constituted deliberate indifference on their part, or whether Binsack intended to

also include a count that correctional officials failed to protect him from other inmates.

Moreover, his voluminous exhibits, do not, without the required “short and plain

statement,” communicate the nature of his claim, and would, in any event, be insufficient

to satisfy Rule 8(a).

       The District Court granted Binsack leave to amend, and the Magistrate Judge gave

him clear instructions on what was needed to cure the complaint’s deficiencies. Despite

these instructions, and his previous assertion (in his motion for appointment of counsel)

that he had a good knowledge of the law, Binsack did not amend his complaint or even


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attempt to clarify his claims. We note that Binsack had notice that failure to file an

amended complaint in compliance with the court’s directions could result in dismissal of

his action. Moreover, he was well aware of the Magistrate Judge’s concern with his

unintelligible filings because, early in the litigation, the Magistrate Judge struck from the

docket 48 items he filed without authorization purporting to be “exhibits” or

“declarations.” See Docket Entry No. 77. For these reasons, the District Court did not

abuse its discretion in dismissing the complaint for failure to comply with Rule 8.

       For the foregoing reasons, we will dismiss the appeal as frivolous pursuant to 28

U.S.C. § 1915(e)(2)(B)(i).




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