FILED

United States Court of Appeals

Tenth Circuit

August 22, 2012

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

HORACE R. BUTLER,

Plaintiff - Appellant, No. 12-1264

v. (D. Colorado)

CITY OF ARVADA, COLORADO,

Defendant - Appellee.

(D.C. No. 1:12-CV-01057-LTB)

ORDER AND JUDGMENT*

Before MURPHY, ANDERSON, and HARTZ, Circuit Judges.

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). The case is

therefore ordered 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This order and judgment is not binding precedent, except under the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. The 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. 32.1.
Plaintiff and appellant, Horace R. Butler, proceeding pro se, appeals the

dismissal of his complaint for failure to comply with the district court’s order to

amend his complaint. For the following reasons, we affirm that dismissal.1

Mr. Butler is a 67-year-old African American male, who lives in Arvada,

Colorado. Mr. Butler’s complaint and his appellate brief list a number of

encounters he claims to have had with the police in Arvada. He accuses the

authorities of “misconduct,” “tampering with evidence,” “civil rights

violation[s],” “harassment,” and he claims he has suffered “[a] wrongful

conviction,” “mental anguish,” “stress,” “character assassination,” and the denial

of his “constitutional right[] to an attorney.” Appellant’s Opening Br. at 3-4. He

further claims he was stopped illegally in his car on at least one occasion, June 1,

2010.

Mr. Butler also alleges that the authorities engaged in “misconduct,

conspiracy, fabricating, [telling] lies” and “[t]ampering with evidence” during a

hearing and trial on August 11 and August 27, 2010. He further asserts the police

assaulted him and his mother on March 31, 2012, and that he was handcuffed at

some point.

Other than those dates, Mr. Butler does not identify any particular incident,

date or even a general time-frame for these allegations, nor does he list any legal

1

 We also deny Mr. Butler’s motion requesting that the City of Arvada

furnish certain recordings on appeal.

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authority to support his claims. He alleges generally that he has been the victim

of persistent racial discrimination, and he asks “that the court place Sanction, on

The City of Arvada, CO at $65,000.000 million [sic].” Id. at 6.

On April 26, 2012, the district court issued an order directing Mr. Butler to

file an amended complaint because his complaint, as filed, “does not comply with

the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure.” 

Order at 1, R. Vol. 1 at 10. The court observed that Mr. Butler “fails to provide a

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

identify the statutory authority that allows the court to consider the claims he is

asserting in this action.” Id. at 11. While noting that Mr. Butler may be

intending to assert claims pursuant to 42 U.S.C. § 1983, the court stated that

“[m]erely making a conclusory allegation that the Arvada courts and police

department do not respect the constitution is not sufficient to state a cognizable

claim against the City of Arvada.” Id. at 12.

The court directed Mr. Butler to “explain what each defendant did to him

. . .; when the defendant did it; how the defendant’s action harmed him . . .; and

what specific legal right [Mr. Butler] believes the defendant violated.” Id.

(quoting Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th

Cir. 2007)). It also informed him that he must identify a municipal policy or

custom causing the alleged violations, in light of his assertion of claims against a

municipal entity. The court ordered Mr. Butler to file such a complaint within

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thirty days, and it cautioned Mr. Butler that failure to amend his complaint would

result in the dismissal of the complaint without further notice.

In response, on May 4, 2012, Mr. Butler filed a letter with the district

court, described by the court as follows:

Among other things, Mr. Butler describes in the letter a conversation

he had with the city attorney for the City of Arvada, states that the

City of Arvada has no defense and will settle out of court if they are

wise, and describes an incident with the City of Arvada police

officers that occurred on April 26, 2012. Attached to the letter are

various documents, including copies of a municipal summons dated

March 31, 2012; various municipal noise ordinances; City of Arvada

police reports relevant to the March 31 municipal summons and

another incident on April 3, 2012; and a statement by Mr. Butler

regarding the incident occurring on March 31, 2012. Mr. Butler has

not filed an amended complaint as directed, and the letter to the

Court filed on May 4 does not include a short and plain statement of

the claims he is asserting in this action. Therefore, Mr. Butler has

failed to comply with Magistrate Judge Boland’s order directing him

to file an amended complaint, and the action will be dismissed for

that reason.

Order at 1-2, R. Vol. 1 at 36-37. The district court then dismissed Mr. Butler’s

complaint without prejudice. The court also denied Mr. Butler the opportunity to

proceed on appeal in forma pauperis. After paying the full filing fee, Mr. Butler

pursued this appeal.

As indicated, Mr. Butler’s appellate brief provides no more specifics than

did his complaint in district court. Mr. Butler also does not specifically claim any

error in the district court’s dismissal of his complaint. The district court

dismissed Mr. Butler’s action without prejudice pursuant to Fed. R. Civ. P. 41(b)

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for failure to file an amended complaint as directed by the court. We have

consistently interpreted Rule 41(b) “to permit courts to dismiss actions sua sponte

for a plaintiff’s failure to prosecute.” Olsen v. Mapes, 333 F.3d 1199, 1204 n.3

(10th Cir. 2003). We review a dismissal under Rule 41(b) for an abuse of

discretion, asking whether the district court made “a clear error of judgment or

exceed[ed] the bounds of permissible choice in the circumstances.” Ecclesiastes

9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1143 (10th Cir. 2007)

(citations, internal quotation marks, and brackets omitted).

After examining Mr. Butler’s appellate pleadings and the record on appeal,

we conclude the district court did not abuse its discretion in dismissing Mr.

Butler’s complaint without prejudice. The allegations in Mr. Butler’s complaint

are unintelligible and Mr. Butler was given the opportunity to amend that

complaint. Even in his appellate brief, which is also largely incomprehensible,

Mr. Butler offers no explanation for why he failed to comply with the district

court’s order to amend his complaint.

Although Mr. Butler is acting pro se, and therefore entitled to a liberal

reading of his filings, we have “repeatedly insisted that pro se parties follow the

same rules of procedure that govern other litigants.” Kay v. Bemis, 500 F.3d

1214, 1218 (10th Cir. 2007) (further quotation omitted).

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For the foregoing reasons, we AFFIRM the dismissal of Mr. Butler’s

action.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge

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