* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1 (G). The cause is therefore ordered s ubmitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 16 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

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

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- 2 -

brought against various federal defendants. Mr. Pr oenza 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 essenc e of Mr. Proenza’s vastly overlong complaint (forty-three pages of single-spa ced prose with 96 documents attached as exhibits) and pleadings is that he shou ld be paroled into the community, and he seeks equitable relief changing h is status. The complaint also contains excessive force and conditions of confinem ent claims against various defendants in their individual capacities. These c laims pertain to his confinement in the segregation unit of the High Security U.S. P enitentiary operated by the BOP. Briefly, the district court construed Mr. Proenza’s request for equitable parole as a request for habeas relief. The distric t court dismissed this claim along with several defendants including Defendants Reno, Meissner, Hawk, Greene and Simson because Mr. Proenza was no longer detained i n 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 couns el, and determined that his Bivens action could proceed only against Defendants-Appel lees Greco, Gray, Leader, Ploessel, Schultz, Smith, Walker, Grimes an d Bond. Id. The district court denied reconsideration. R. doc. 56. The dis trict court later granted the- 3 -

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. Proen za’s Bivens claims on two grounds: failure to exhaust administrative rem edies 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 F ed. 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 re lief 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 De fendants-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 d istrict court’s jurisdiction; (2) incorrect exclusion of Defendants Reno, Hawk, Meiss ner, 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 ci rcumstances warranting the appointment of counsel; and (5) the court’s disregard of several identifications of mentioned or referred defendants provided by the Pl aintiff in his “Affidavit to Assist this Court in Locating and Identifying Defen dants to Expedite Service,” as- 4 -

well as other described defendants. Mr. Proenza al so challenges the district court’s denial of his numerous motions. We review a Rule 8 dismissal for an abuse of discre tion. Kuehl v. FDIC , 8 F.3d 905, 908 (1st Cir. 1993). The government conf esses error with regard to the district court’s dismissal of Defendants Leader, Pl oessel, Schultz, and Smith regarding various allegations of excessive force onJanuary 17, 1997 (Leader), on February 9, 1997 (Ploessel and Schultz), and on Feb ruary 25, 1997, and April 5, 1997 (Smith). Aplee. Br. at 11-12 (conceding that Plaintiff had stated “wellpleaded 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 th e claim regarding Ploessel’s placement of Mr. Proenza in a cell with a “known co ntracted 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 fiv e defendants, the only viable claim at this point is the claim against Gray arisi ng from his actions on February 24, 1997. R. doc. 3, at 25 (alleging that Gray dis regarded Mr. Proenza’s request that he be moved to another cell after his allegedl y insane cellmate threatened to kill him), id. at 31-32 (alleging that Gray “permitt[ed] . . . me ntal 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 c omplaint alleged that- 5 -

defendant knewthat mentally ill inmate “presented an ‘imminent p otential’ 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 s tandards, 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 co mponent when pursuing a conditions of confinement claim. See Farmer , 511 U.S. at 834. Mr. Proenza’s conclusory allegations that various supervisory def endants participated do not come close to the direct, personal participation re quired for Bivens liability. Having concluded that certain allegations containedin the complaint are viable at this point, we turn to Mr. Proenza’s fail ure to exhaust administrative remedies. We review a dismissal on this basis de n ovo. 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 dismiss ed Mr. Proenza’s Bivens claims for injunctive relief, but erred in dismissi ng 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 l eave to amend his complaint with his “Affidavit to Assist this Court in Locating and Identifying Defendants to Expedit[e] Service,” R. doc. 45, inso far as identifying certain- 6 -

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 mustcomply 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 throu gh hundreds of paragraphs in an effort to identify the operative facts and theories of the complaint. Finally, the district court did not abuse its discr etion in refusing to appoint counsel for Mr. Proenza. We reject all other claim s advanced by Mr. Proenza on appeal. AFFIRMED in part; REVERSED in part and REMANDED forfurther proceedings consistent with this order and judgment

. Entered for the Court
Paul J. Kelly, Jr. Circuit Judge