F I L E D

United States Court of Appeals

Tenth Circuit

FEB 3 1999

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________

MARVIN BISHOP,

Plaintiff-Appellant,

v.

ROY ROMER, Governor,

Defendant-Appellee.

No. 98-1294

(D. Colo.)

(D.Ct. No. 98-D-1238)

MARVIN BISHOP,

Plaintiff-Appellant,

v.

COLORADO DEPARTMENT OF CORRECTIONS;

ARISTEDES W. ZAVARAS, Executive Director;

DOCTOR McGARRY, Chief Medical Officer;

DOCTOR DIAMOND, Chief Mental Health Officer;

FRANK E. RUYBALID, Step III Grievance Officer,

all of C.D.O.C.; LARRY EMBRY, with his medical

and administrative staff; FREMONT CORRECTIONAL FACILITY, all of (F.C.F.); AL ESTEP, Warden,

with his administrative and medical staff; LIMON

CORRECTIONAL FACILITY, all of (L.C.F.);

DONICE NEAL, Warden, with her administrative,

medical and mental health staff; COLORADO STATE

PENITENTIARY, all of (C.S.P.); sued in their

individual and official capacities,

Defendants-Appellees.

No. 98-1296

(D. Colo.)

(D.Ct. No. 98-D-171)

____________________________
*

 This order and judgment is not binding precedent except under the doctrines of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. 36.3.

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ORDER AND JUDGMENT*

Before BRORBY, EBEL, and LUCERO, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist 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.

Appellant Marvin Bishop, a pro se inmate, appeals the district court’s

dismissal of his civil complaints without prejudice. We consolidate both appeals

for singular disposition. Because we conclude his appeals are frivolous, we deny

his motions for leave to proceed on appeal in forma pauperis and dismiss his

appeals pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).

Mr. Bishop filed two civil rights actions under 42 U.S.C. § 1983. In the

first action, Mr. Bishop alleged nonfeasance by the Governor of Colorado for
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failing to respond to his letters and authorize an investigation of drug use by his

ex-wife and her boyfriend which he claimed could prove his innocence and false

imprisonment. The district court dismissed the complaint without prejudice under

the principle announced in Heck v. Humphrey, 512 U.S. 477 (1994), which bars

42 U.S.C. § 1983 actions relating to or challenging the validity of a criminal

conviction and sentence. Id. at 486-87.

In the second action, Mr. Bishop asserted multiple constitutional claims

against numerous Colorado Department of Corrections officials for abusive

treatment resulting from his request for a single, rather than shared, prison cell

because of alleged medical and mental health reasons. In support of his

contentions, Mr. Bishop asserted numerous allegations of misconduct by prison

officials, including contentions they violated his constitutional rights by slamming

his cell door and refusing to provide him ear plugs, supportive shoes, and dietary

supplements such as vitamins, minerals, and proteins. In two separate orders, the

district court directed Mr. Bishop to file an amended complaint complying with

Rule 8(a)(2) of the Federal Rules of Civil Procedure, which requires a complaint

contain short and plain statements of (1) the grounds for jurisdiction and (2) a

claim showing relief, together with a demand for judgment for the relief sought. 

The district court noted Mr. Bishop’s original complaint and supplementary
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thirty-six-page complaint contained “rambling and verbose allegations” of

incidents concerning denial of medical treatment, placement in administrative

segregation, and convictions on Code of Penal Discipline violations, together with

claims of interference with inmate grievance procedures, denial of library

photocopies, improper shakedowns, and subjection to an unheated cell. In

response to the court’s order, Mr. Bishop filed an amended complaint that

contained many of the same allegations contained in his first complaint, together

with an exhaustive recitation of several state statutes and prison administrative

rules allegedly violated. The district court dismissed the complaint without

prejudice under Fed. R. Civ. P. 8(a)(2), stating it contained an “unnecessarily

lengthy and confusing dissertation containing rambling and verbose allegations”

which neither the court “nor the defendants are required to search through ... to

determine what claims are being asserted.”

After dismissal of the complaints in each action, Mr. Bishop sought

“reconsideration.” The district court construed the requests for reconsideration as

motions to alter or amend the judgments pursuant to Fed. R. Civ. P. 59(e) and

then denied the motions.

Mr. Bishop appeals the dismissal of both complaints. In his appeal of his
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action against the governor, Mr. Bishop contends the district court erred in

applying Heck to bar his § 1983 action, and must allow him an opportunity to

amend his complaint to include relevant statutes and citations. In his other

appeal, Mr. Bishop argues his original and supplemental complaints meet all the

requirements of Fed. R. Civ. P. 8, and that even his “grossly reduce[d]” amended

complaint meets the rule and the judge’s orders. He also complains the district

court judge improperly refused to appoint him counsel and should have recused

himself.

Discussion

A. Section 1983 Action Barred by Heck v. Humphrey

We have carefully reviewed Mr. Bishop’s complaint of nonfeasance by the

governor and his assertion that an investigation of his ex-wife’s and her

boyfriend’s drug use would prove his innocence and vindicate his claim of false

imprisonment. In essence, Mr. Bishop’s allegations implicate the validity of his

conviction and continued confinement. As the district court recognized, the

United States Supreme Court’s decision in Heck v. Humphrey, 512 U.S. 477

(1994), controls this case. Humphrey states a § 1983 action is an inappropriate

vehicle for challenging the validity of outstanding criminal judgments unless the

plaintiff proves the conviction “has been reversed on direct appeal, expunged by

executive order, declared invalid by a state tribunal ... or called into question by a
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federal court’s issuance of a writ of habeas corpus.” Id. at 486-87. Accordingly,

we agree with the district court that Mr. Bishop failed to show an invalidation of

his conviction or sentence, requiring dismissal of his § 1983 complaint. As for

Mr. Bishop’s request to amend his complaint, we find the district court’s order

that dismissed his complaint without prejudice adequately advised him he may

initiate a new action under § 1983, if he successfully invalidates his conviction

and sentence.

B. Dismissal Pursuant to Rule 8(a)(2)

Rule 8 provides that a complaint “shall contain ... a short and plain

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

P. 8(a)(2). When a complaint does not comply with this requirement, the court

has the power to dismiss it. Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.

1988). The decision to dismiss an action without prejudice for failure to comply

with Rule 8 is within the sound discretion of the district court, and we review the

court’s decision for abuse of discretion. Id. See also Atkins v. Northwest

Airlines, Inc., 967 F.2d 1197, 1203 (8th Cir. 1992); Gillibeau v. City of

Richmond, 417 F.2d 426, 431 (9th Cir. 1969).

We have reviewed the original, “supplemental,” and amended complaints in
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Mr. Bishop’s § 1983 action against officials of the Colorado Department of

Corrections. These documents consist of several pages of rambling, disjointed

factual allegations, seemingly unrelated conclusory assertions of constitutional

violations, and an exhaustive recital of statutes and administrative rules, which

shed no light on the exact nature of Mr. Bishop’s claims. Even giving his pro se

complaints liberal construction, Mr. Bishop fails to satisfy the Rule 8(a)(2)

requirement for a short and plain statement of claims showing he is entitled to

relief. Thus, his complaint fails to give the opposing parties a reasonable and fair

notice of the basis of the complaint, placing an impermissible burden on them to

identify his specific legal claims. See Monument Builders of Greater Kansas

City, Inc. v. American Cemetery Assn. of Kansas, 891 F.2d 1473, 1480 (10th Cir.

1989), cert. denied, 495 U.S. 930 (1990). Accordingly, the district court did not

abuse its discretion in dismissing Mr. Bishop’s § 1983 complaint without

prejudice.

We next address Mr. Bishop’s claim the district court erred in failing to

appoint him counsel. Contrary to his contentions, the right to counsel in a civil

suit is not a constitutional right under the Sixth Amendment. See MacCuish v.

United States, 844 F.2d 733, 735 (10th Cir. 1988).
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As to Mr. Bishop’s request for recusal or disqualification of the district

court judge, we review under a plain error standard since he did not move or file

the necessary affidavit for recusal or disqualification below. See United States v.

Kimball, 73 F.3d 269, 273 (10th Cir. 1995). Even construing his pro se pleadings

liberally, Mr. Bishop’s mere conclusory allegation the judge must recuse himself

is insufficient to form a basis for recusal or disqualification. See Hinman v.

Rogers, 831 F.2d 937, 939 (10th Cir. 1987).

Because Mr. Bishop’s appellate pleadings offer no further explanation of

his claims, we conclude his appeal are legally frivolous and subject to dismissal

pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). For these reasons, we deny Mr.

Bishop’s motions to proceed in forma pauperis, “Objection to Order dated

December 2, 1998,” “Objection to Order dated December 8, 1998,” September 8

and 24, 1998 motions entitled “Motion for Relief,”and “Declaration in Support of

Plaintiff’s Motion for Temporary Restraining Order and Preliminary Injunction

with Damages.” We have also reviewed Mr. Bishop’s October 9, 1998 letter and

find nothing therein to convince us of the merit of his appeals. Accordingly, we

AFFIRM the district court’s judgments dismissing Mr. Bishop’s § 1983
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complaints. We conclude Mr. Bishop’s two appeals count as two prior occasions

for the purposes of 28 U.S.C. § 1915(g). The mandate shall issue forthwith.

Entered by the Court:

WADE BRORBY

United States Circuit Judge