*This order and judgment is not binding precedent, except under the doctrines of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

UNITED STATES COURT OF APPEALS

Filed 5/23/96

TENTH CIRCUIT

OSCAR TUCKER,

Plaintiff - Appellant, No. 95-1500

v. D. Colorado

ANTHONY BELASKI, Former

Custodian/Warden; W. H. SEIFERT,

Warden, Immediate Custodian; UNITED

STATES PAROLE COMMISSION,

Defendants - Appellees.

(D.C. No. 94-Z-1000) 

ORDER AND JUDGMENT*

Before ANDERSON, BARRETT, and MURPHY, 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); 10th Cir. R. 34.1.9. This cause is therefore ordered

submitted without oral argument.
1Of course, Tucker’s pleadings must be liberally construed in light of his pro se

status. Haines v. Kerner, 404 U.S. 519, 520 (1972). As the district court order indicates,

both the magistrate judge and the district court applied a liberal construction: 

No matter how liberally the Magistrate Judge construed the

complaint and all other papers filed by plaintiff, it was impossible for him

(continued...)

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Oscar Tucker, appearing pro se, brought this action against a former custodian and

warden of the Federal Correctional Institution (“FCI”) in Englewood, Colorado, a present

custodian and warden of the Metropolitan Detention Center (“MDC”) in Los Angeles,

California, and the United States Parole Commission (“USPC”). The district court

dismissed his complaint without prejudice, for failure to comply with Fed. R. Civ. P. 8. 

In this appeal, Tucker contends that the court erred in concluding that his amended

complaint failed to contain a short and plain statement of claim showing his entitlement to

relief. We affirm.

The decision to dismiss an action without prejudice for failure to comply with Rule

8 is within the sound discretion of the trial court, which we review for abuse. See 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). 

While Tucker’s brief to us is more clearly stated and better organized than his

pleadings below, the issue on appeal is whether the amended complaint complies with

Rule 8 which requires that a complaint contain “a short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).1 We conclude that
1

(...continued)

to find a claim for which relief would be proper. The Court after reading

the objections also attempted to read the entire file as liberally as possible to

understand what claims plaintiff is asserting, but cannot conclude that any

claim has been asserted for which relief could be granted. The Magistrate

Judge is not saying that he does not believe plaintiff’s allegations but

instead that he does not know what the claim is. This Court cannot

determine what plaintiff’s claims are because plaintiff has failed to comply

with [the requirement of] Fed. R. Civ. P. 8 [to] provide a short and plain

statement of the claim . . . . 

R. Vol. I, Tab 42 at 2. 

2Tucker’s brief attaches a full copy of the magistrate judge’s recommendation

which issued in that 1990 habeas action, and which included findings that the USPC had

(continued...)

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the district court did not abuse its discretion in determining that the amended complaint

failed to comply with Rule 8. 

Furthermore, even if we were to find that the amended complaint did sufficiently

comply with Rule 8, Tucker’s claims would still be barred by the applicable statutes of

limitations. Thus, Tucker’s action, as more clearly described in his appellate brief,

involves claims arising from a 1989 parole revocation and his ensuing incarceration in the

FCI on a sentence initially set at four months. In 1990, after numerous summary

extensions of his release, Tucker brought a petition for a writ of habeas corpus, combined

with a claim for damages. At that time, the district court ordered the USPC to hold a

hearing within twenty days as provided in 28 C.F.R. § 2.28(a), with the further order that

if the USPC failed to hold such a hearing, absent good cause, the petition for release

would be granted.2

 At the same time, the district court dismissed Tucker’s claims for
2

(...continued)

violated its regulations and procedures respecting Tucker. 

3Prior to bringing this action, Tucker filed a claim requesting relief under the

Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-2680. R. Vol. I, Tab 44, Attach. 

According to his brief, that claim was denied on or about October 14, 1993. Appellant’s

Br., Attach. 1 at 2. 

4Although Tucker’s amended complaint also includes claims for injunctive relief

respecting a current confinement that resulted from a 1994 parole revocation, he has

apparently abandoned those claims on appeal. In any event, as both the magistrate judge

and the district court correctly noted, in order to challenge his present confinement,

Tucker would have to bring a petition for a writ of habeas corpus in the jurisdiction where

his current custodian can be served. See R. Vol. I, Tab 38 at 4-5; id., Tab 42 at 3. 

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money damages without prejudice. See R. Vol. I, Tab 7 (at Order dated May 6, 1991). 

Tucker was subsequently released on July 9, 1991. 

Tucker filed this action on April 28, 1994.3 As stated in his brief to us, Tucker

now claims that 1) Belaski and others at the FCI violated his constitutional equal

protection and due process rights, and the Privacy Act, 5 U.S.C. § 552a, by maintaining

certain false and damaging information in his file; 2) the USPC violated his due process

rights by failing to hold required hearings; and 3) the defendants acted with a racially

discriminatory animus.4 See Appellant’s Br. at Attachs. 2, 1. However, Tucker knew or

should have known of the matters he now complains of in 1991, when his habeas action

was completed, or, at the very latest, when he was released. 

In his appeal brief, Tucker purports to bring his action under the authority of the

Privacy Act, Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403
5Tucker also refers to criminal statutes, which would not apply in this civil action.

6The magistrate judge’s recommendation in this matter also found the action

barred by the statute of limitations. R. Vol. I, Tab 38 at 5. In his objection to that

recommendation, Tucker argued that the statute of limitations was tolled while his federal

tort claim was being processed. Id., Tab 39 at 4. However, the filing of a federal tort

claim is not a prerequisite to a Bivens suit for money damages. See Uhl v. Swanstrom,

876 F. Supp. 1545 (N.D. Iowa 1995) (finding as to § 1983 suit), aff’d on other grounds,

79 F.3d 751 (8th Cir. 1996); cf. McCarthy v. Madigan, 503 U.S. 140, 149 (1992) (holding

that prisoner was not required to exhaust administrative remedies before bringing Bivens

suit). Therefore, the pursuit of remedies under the FTCA would not toll the statute of

limitations for this action. Moreover, even if this action were construed under the FTCA,

it would still be untimely. As provided in 28 U.S.C. § 2401(b), any tort claim against the

United States must be brought within two years after it accrues, or within six months after

“final denial of the claim by the agency to which it was presented.” As noted, supra, note

(continued...)

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U.S. 388 (1971), and 42 U.S.C. §§ 1981, 1985.5

 For each cause of action, the statute of

limitations is two years. 5 U.S.C. § 552a(g)(5) (establishing two year limitations period

for actions under Privacy Act); Colo. Rev. Stat. Ann § 13-80-102(1)(I) (establishing a two

year limitations period for personal injury actions); Industrial Constructor’s Corp. v. U.S.

Bureau of Reclamation, 15 F.3d 963, 968 (10th Cir. 1994) (applying the state statute of

limitations for personal injury to Bivens claim); Scheerer v. Rose State College, 950 F.2d

661, 664 (10th Cir. 1991) (same as to claims under 42 U.S.C. § 1981), cert. denied, 505

U.S. 1205 (1992); Merrigan v. Affiliated Bankshares of Colo., Inc., 775 F. Supp. 1408,

1411-12 (D. Colo. 1991) (same as to claims under 42 U.S.C. § 1985), aff’d on other

grounds, 956 F.2d 278 (10th Cir.) (Table), cert. denied, 506 U.S. 823 (1992). 

Therefore, regardless of their possible merit, Tucker’s action, which was brought

more than two years after his claims accrued, is barred.6
6

(...continued)

4, Tucker’s tort claim was denied “on or about October 14, 1993." Tucker did not file

this action until April 28, 1994, which is more than six months later. 

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AFFIRMED. The mandate shall issue forthwith.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge