[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 12-15930

Non-Argument Calendar

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D.C. Docket No. 1:12-cv-22193-FAM

RANDOLPH H. GUTHRIE, III, 

 Plaintiff-Appellant,

versus

UNITED STATES OF AMERICA, 

CITY OF NEW YORK, 

CITY OF MIAMI, FL, 

DADE COUNTY, FL, 

WALGREENS, CO., 

CVS CAREMARK CORPORATION, et al.,

 Defendants-Appellees.

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Appeal from the United States District Court

for the Southern District of Florida

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(June 24, 2013)

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Before WILSON, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM: 

Randolph Guthrie appeals pro se the dismissal with prejudice of his third 

amended complaint that the United States and more than 30 other defendants

violated the Federal Tort Claims Act. 28 U.S.C. § 2675(a). The district court 

dismissed Guthrie’s complaint for failure to comply with Federal Rule of Civil 

Procedure 10(b) and with instructions provided by the district court. Because 

Guthrie’s third amended complaint suggests that he attempted to comply with both

Rule 10(b) and the instructions of the district court, we vacate the order dismissing 

Guthrie’s complaint with prejudice and remand for further proceedings.

The district court dismissed Guthrie’s complaint and first amended 

complaint without prejudice for failure to comply with Rule 10(b). On both 

occasions, the district court gave Guthrie leave to amend the complaints and 

instructed him to set forth each claim in a separate count and to identify the factual 

and legal basis for each claim. Guthrie also filed a second amended complaint, but 

the district court did not address that pleading.

Guthrie filed a third amended complaint that was identical to his second 

amended complaint. In 173 paragraphs, Guthrie described how the United States 

conspired with his defense counsel to convict him of “copyright infringement” and 

later conspired with several individuals, businesses, and local governments to 

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engage in tortious conduct and violate his constitutional rights. The complaint 

contained 111 counts, each alleging a single claim against a named defendant or 

defendants. In two paragraphs following each count, Guthrie incorporated by 

reference the numbered paragraphs relevant to that count and provided a brief 

description of the defendants’ alleged misconduct.

In response to a motion of the United States, the district court dismissed with 

prejudice Guthrie’s third amended complaint. The district court dismissed the 

complaint for failure to comply with Rule 10(b) or the “due process concerns 

articulated in the court’s previous Order.” The district court stated that Guthrie’s 

complaint “once again fails to state a cause of action against each individual 

defendant and does not coherently state what each defendant is alleged to have 

done”; its “attempt to ‘incorporate by reference’ a narrative of general allegations 

as to all defendants [did] not comply with [the] Court’s prior Order”; and it failed 

to “allege any basis for the Court to assert jurisdiction over the laundry list of thirty 

three corporate and government defendants.”

The district court abused its discretion by dismissing Guthrie’s third 

amended complaint with prejudice. Guthrie’s complaint, though rambling and 

disjointed, suggests that he attempted to comply with Rule 10(b) and the earlier 

instructions of the district court. Guthrie stated his claims in numbered paragraphs 

and identified what action by each defendant corresponded to each claim. See Fed. 

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R. Civ. P. 10(b). If the district court intended to dismiss Guthrie’s complaint for 

lack of subject matter jurisdiction based on a failure to exhaust administrative 

remedies, that dismissal should have been without prejudice. See Stalley ex rel. 

United States v. Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1234–35 

(11th Cir. 2008). A dismissal with prejudice is “an extreme sanction that may be 

properly imposed only when: (1) a party engages in a clear pattern of delay or 

willful contempt (contumacious conduct); and (2) the district court specifically 

finds that lesser sanctions would not suffice.” Betty K Agencies, Ltd. v. M/V 

MONADA, 432 F.3d 1333, 1338–39 (11th Cir. 2005) (internal quotation marks 

and citation omitted). The district court did not suggest that Guthrie acted with 

willful contempt in filing his third amended complaint or that a lesser sanction 

would not suffice to address his filings, and the record suggests that Guthrie was 

making a good faith effort to comply with Rule 10(b) and the order of the district 

court. Although grounds may exist to warrant dismissal of Guthrie’s complaint 

with prejudice, the district court erred when it dismissed the complaint solely for 

failure to comply with its order and Rule 10(b).

We VACATE the order dismissing Guthrie’s complaint and REMAND for 

further proceedings.

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