*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand 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. 

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

### JUN 12 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________ FELIX PAUL OLGUIN, Plaintiff-Appellant,

v. EUGENE ATHERTON, Defendant-Appellee. No. 99-1417 (D. Colo.) (D.Ct. No. 99-Z-903)

____________________________ ORDER AND JUDGMENT *

Before BRORBY , KELLY , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.

Appellant Felix Paul Olguin, an inmate appearing pro se , appeals the-2-

district court’s decision dismissing his civil 42 U .S.C. § 1983 complaint, without prejudice, for failure to comply with the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. We affirm.

Mr. Olguin initiated his civil action with a letterapparently intended to serve as a complaint. Finding the “complaint” defi cient, the magistrate judge issued an order directing Mr. Olguin to cure enumer ated deficiencies, and furnished Mr. Olguin two copies of the court-approv ed form for filing a prisoner’s civil rights complaint. Mr. Olguin fail ed to file the court-approved form, and instead “bombarded” the district court wi th “various barely intelligible papers.” In response, the magistrate judge issued an August 5, 1999 order directing Mr. Olguin to submit the court-approved f orm within thirty days and to comply with Fed. R. Civ. P. 8.

Thereafter, Mr. Olguin inundated the district courtwith a 114-page amended “Prisoner’s Civil Rights Complaint” and sixty-four other documents, most of which Mr. Olguin described as exhibits and which contained some combination of motions, affidavits or other papers. After reviewing these documents, the district court ascertained Mr. Olgui n’s complaint did not contain a short and plain statement of his claims showing ent itlement to relief. Rather, the1 In an apparent effort to prove he lacked an operable pen, Mr. Olguin attached

damaged pens to two of his pleadings and commenced filing his litany of pleadings in charcoal pencil and thick, colored pencils in shades of purple, brown and orange.

-3- district court concluded the complaint consisted of “a rambling compilation of allegations about how [Mr. Olguin] allegedly is bei ng denied access to the courts.” Despite the incoherent nature of Mr. Olgu in’s pleadings, the district court ascertained Mr. Olguin was claiming denial of access to the courts because prison officials failed to “help him research or fr ame the medical treatment claims ...; help him complete the Court-approved form for filing a Prisoner’s Civil Rights Complaint,” photocopy his exhibits, or provide him with “pens, mailing envelopes, and sufficient white paper.” 1 The district court determined Mr. Olguin’s other civil rights claims similarly consis ted of unintelligible complaints of a cell shakedown, denial of adequate outdoor sun light, confiscated legal papers, and requirement he keep his extra legal pap ers in storage. The district court concluded Mr. Olguin’s amended complaint plac ed an unreasonable burden on the court and prison officials to identify, inte rpret and respond to his claims. For that reason, the district court dismissed Mr. O lguin’s amended complaint without prejudice for failure to comply with Fed. R . Civ. P. 8(a).

On appeal, Mr. Olguin sets forth his civil rights c laim in one sentence,-4-

stating “he was unlawfull [sic] denied access to [t he] courts and medical treatment.” Although Mr. Olguin never identifies h is alleged illness, he contends he is in “acute pain[]” requiring “immediate attent ion,” and that the ten-year delay in acknowledging the illness aggravated his conditi on and caused him “great pain, discomfort, and threat to [his] good health.” He a lso states: [H]ere, the Plaintiff nor the defend[a]nts gave [hi m] any injections of painkillers of medicate [sic] to help ease his pain , and there is nothing he could do to stop his advancing illness a nd imminent death.
In addition, Mr. Olguin suggests his pro se complaint cannot be dismissed and in support, commits four of twenty-one-pages of his appeal brief to a discussion of Haines v. Kerner , 404 U.S. 519 (1972), which stands for the proposition that a pro se litigant’s pleading must be construed liberally an d held to a less stringent standard than formal pleadings drafted by lawyers. He also (1) complains prison officials failed to respond to his discovery requests, (2) seeks appointment of counsel, and (3) contends he “ran ou t of ink pens and color penciles [sic] so he cannot finish his opening brie f.” Mr. Olguin has also submitted for our disposition a motion for appointm ent of counsel, affidavit in support of that motion, a motion to present oral ar gument, and a pleading entitled “Judgment and Argument.”-5-

The decision to dismiss an action without prejudice for failure to comply with Fed. R. Civ. P. 8 is within the sound discreti on of the district court, and we review the court’s decision for an abuse of discret ion. See Kuehl v. FDIC , 8 F.3d 905, 908 (1st Cir. 1993), cert. denied, 511 U.S. 1034 (1994); Atkins v. Northwest Airlines, Inc. , 967 F.2d 1197, 1203 (8th Cir. 1992); Salahuddin v. Cuomo , 861 F.2d 40, 42 (2d Cir. 1988). In order to state a cl aim for relief, Rule 8(a) requires Mr. Olguin’s complaint contain “(1) a short and pla in statement of the grounds upon which the court’s jurisdiction depends, ... (2 ) a short and plain statement of the claim showing that [he] is entitled to relief, and (3) a demand for judgment for the relief [he] seeks.” Fed. R. Civ. P. 8(a). Alt hough we construe Mr. Olguin’s
pro se pleadings liberally, he must follow the rules of f ederal and appellate procedure, see Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994), cert. denied, 513 U.S. 1090 (1995), and his complaint is subjec t to dismissal under Rule 8(a) if it is “incomprehensible.” See Carpenter v. Williams , 86 F.3d 1015, 1016 (10th Cir. 1996).

Applying these principles, we have reviewed the ori ginal “complaint,” amended complaints, and other pleadings Mr. Olguin filed in his § 1983 action. Our review shows Mr. Olguin’s pleadings contain a p lethora of incomprehensible, conclusory allegations arising out of a disjointed and unsupported presentation of-6-

alleged facts. From Mr. Olguin’s pleadings, we are unable to identify with certainty what, if any, actions or omissions prison officials committed that caused the unidentified medical malady of which he complai ns. Similarly, none of his other allegations identify a policy or custom of th e prison or its officials which caused him any constitutional deprivation. Despite the sheer volume of Mr. Olguin’s pleadings, they nevertheless fail to give the prison officials fair notice of the basis of his claim against them so they may res pond, or allow this court to conclude the allegations, if proven, show he is ent itled to relief. See Monument Builders of Greater Kansas City, Inc. v. American Cemetery Ass’n of Kansas , 891 F.2d 1473, 1480 (10th Cir. 1989), cert. denied, 495 U.S. 930 (1990). For these reasons, we conclude the district court did not abu se its discretion in dismissing Mr. Olguin’s § 1983 complaint without prejudice forfailure to comply with Fed. R. Civ. P. 8(a).

For the same reasons, we decline to address Mr. Olg uin’s contention prison officials declined to respond to his discovery requ ests, reject his request for oral argument, and find the arguments contained in his p leading entitled “Judgment and Alignment” unpersuasive. With regard to Mr. Ol guin’s statement he ran out of ink pens and colored pencils to finish his openi ng brief, he nevertheless provided over twenty pages for our consideration. Given the inadequacy of both-7-

Mr. Olguin’s appeal brief and his other voluminous pleadings to sufficiently allege any constitutional deprivation, we conclude the lack of additional briefing in this case did not prejudice his appeal.

As to Mr. Olguin’s request for appointment of couns el, we have held “the right to counsel in a civil case is not a matter of constitutional right under the Sixth Amendment.” MacCuish v. United States , 844 F.2d 733, 735 (10th Cir. 1988) (quotation marks and citation omitted). We h ave applied this holding to prisoners bringing § 1983 actions. See Bishop v. Romer , 1999 WL 46688, at*3 (10th Cir. Feb. 3, 1999) (unpublished opinion), cert. denied, 527 U.S. 1008 and 120 S. Ct. 115 (1999). See also Poole v. Lambert , 819 F.2d 1025, 1028 (11th Cir. 1987) (determining “[a] civil litigant, including aprisoner pursuing a section 1983 action, has no absolute constitutional right t o the appointment of counsel.”).

For these reasons, we deny Mr. Olguin’s motions forappointment of counsel and to present oral argument, and AFFIRM the district court’s decision dismissing-8-

Mr. Olguin’s § 1983 complaint. We remind Mr. Olgui n of his obligation to continue to make partial payments until his appeal costs and fees are paid in full.

Entered by the Court: WADE BRORBY United States Circuit Judge