UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________ 

BRANDON BAKER, 

 Plaintiff-Appellant, 

v. 

CITY OF LOVELAND; LOVELAND 

POLICE DEPARTMENT; LT RICK 

ARNOLD, in official and individual 

capacity; SGT.JEFF PYLE, in 

official and individual capacity; 

OFFICER ANDRES SALAZAR, in 

official and individual capacity; 

LARIMER COUNTY DA GORDON 

MCLAUGHLIN, in official and 

individual capacity, 

 Defendants-Appellees. 

No. 16-1435 

(D.C. No. 1:15-CV-01920-MJW) 

(D. Colo.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before HARTZ, HOLMES, and BACHARACH, Circuit Judges. 

_________________________________ 

 

* We conclude that oral argument would not materially help us to 

decide this appeal. As a result, we are deciding the appeal based on the 

briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

 This order and judgment does not constitute binding precedent except 

under the doctrines of law of the case, res judicata, and collateral estoppel. 

But the order and judgment may be cited for its persuasive value under 

Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A). 

FILED 

United States Court of Appeals 

Tenth Circuit 

April 26, 2017

Elisabeth A. Shumaker 

Clerk of Court
2 

 Mr. Brandon Baker sued the City of Loveland, the Loveland Police 

Department, Mr. Rick Arnold, Mr. Jeff Pyle, Mr. Andres Salazar, and Mr. 

Gordon McLaughlin. Mr. Baker’s amended complaint spans 42 singlespaced pages, contains 398 paragraphs, and includes 17 causes of action. 

The district court dismissed the amended complaint without prejudice for 

failure to satisfy Rule 8 of the Federal Rules of Civil Procedure. 

Mr. Baker appeals, arguing that 

 the defendants are subject to judicial estoppel, 

 the district court should have stricken the immaterial parts of 

the amended complaint rather than order dismissal, and 

 the cause of action consists of a “primary right” and a breach, 

not a remedy. 

In addressing whether the district court erred in dismissing the amended 

complaint, we must affirm unless the district court abused its discretion. 

See Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1161-62 

(10th Cir. 2007). In our view, the district court acted within its discretion. 

Therefore, we affirm. 

I. The district court had discretion to order dismissal based on a 

failure to comply with Rule 8.

Under Rule 8 of the Federal Rules of Civil Procedure, the complaint 

must contain “a short and plain statement of the claim showing that the 

pleader is entitled to relief.” Fed. R. Civ. P. 8(a). This requirement is 

designed to force plaintiffs “to state their claims intelligibly so as to 
3 

inform the defendants of the legal claims being asserted.” Mann v. 

Boatright, 477 F.3d 1140, 1148 (10th Cir. 2007).1

 

Prolixity of a complaint undermines the utility of the complaint. See 

Knox v. First Sec. Bank of Utah, 196 F.2d 112, 117 (10th Cir. 1952) (“The 

purpose of [Rule 8(a)] is to eliminate prolixity in pleading and to achieve 

brevity, simplicity, and clarity.”). Thus, we have held that a complaint can 

run afoul of Rule 8 through unnecessary length and burying of material 

allegations in “‘a morass of irrelevancies.’” Mann, 477 F.3d at 1148 

(quoting Garst v. Lockheed-Martin Corp., 328 F.3d 374, 378 (7th Cir. 

2003)). 

 The district court concluded that Mr. Baker had failed to comply with 

Rule 8, and this conclusion was correct. The amended complaint is 

 filled with unnecessary legal arguments and detail and 

 lacking clarity about what each defendant allegedly did to incur 

liability. 

In 42 single-spaced pages, the amended complaint includes numerous 

matters that are both unnecessary and irrelevant at this stage: 

 argument for abstention under Pullman and Younger (pp. 1-2), 

 

1

 Mr. Baker is pro se, so we liberally construe the amended complaint. 

Jordan v. Sosa, 654 F.3d 1012, 1018 n.8 (10th Cir. 2011). Nonetheless, pro 

se litigants must comply with the Federal Rules of Civil Procedure. See 

Ogden v. San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994) (“[A]n 

appellant’s pro se status does not excuse the obligation of any litigant to 

comply with the fundamental requirements of the Federal Rules of Civil 

Procedure.”). 
4 

 reference to a bar complaint against one of the defendants 

(p. 5), 

 legal argument about the accrual date for claims of malicious 

prosecution, false, arrest, and false imprisonment (p. 6), 

 legal argument about the applicable law on tolling of the 

limitations period (p. 7), 

 legal argument about the length of the limitations period for the 

§ 1983 claims (p. 9), 

 legal argument about summary judgment (p. 13), 

 legal argument about strict scrutiny of the state’s alleged 

inhibition of religious practice (pp. 15, 17), 

 reference to past stops by officers who are not parties (without 

any apparent allegation of wrongdoing) (p. 19), 

 legal argument about Colorado’s suppression of improperly 

obtained evidence (p. 21), 

 legal argument about the unreliability of the sense of smell 

(p. 21), and 

 legal argument about the determination of probable cause 

(p. 27). 

Buried in the amended complaint are allegations that might alert 

particular defendants to allegations of wrongdoing. But other allegations 

appear to lump all of the defendants together, without saying who did what 

or identifying conduct that would trigger liability. Thus, the district court 

properly dismissed the amended complaint. 

 
5 

II. The doctrine of judicial estoppel does not apply.

Mr. Baker argues that the defendants changed their position, 

triggering judicial estoppel, which in turn foreclosed challenges to the 

amended complaint.2

 This characterization is incorrect. 

The original complaint was filed in another case. In that case, the 

district court explained that the complaint had failed to satisfy Rule 8. 

Order, passim, Baker v. Loveland, No. 15-CV-1864-LTB (D. Colo. Aug. 

31, 2015), ECF No. 5. The problem was the complaint’s vagueness. Id. at 

2-3. The court told Mr. Baker that to state a claim in federal court, he had 

to specify (1) what that defendant had done, (2) when the defendant had 

done it, (3) how the defendant’s action had resulted in harm; and (4) what 

specific legal right the defendant had violated. Id at 3 (bold typeface 

omitted).3

 

 

2 The doctrine of judicial estoppel prohibits parties from changing 

positions after prevailing based on the earlier positions. Johnson v. Lindon 

City Corp., 405 F.3d 1065, 1069 (10th Cir. 2005). 

3 The original complaint and order are not in our record on appeal. We 

take judicial notice of these documents because they apparently are what 

Mr. Baker is referring to in his opening brief. See St. Louis Baptist Temple, 

Inc. v. FDIC, 605 F.2d 1169, 1172 (10th Cir. 1979) (“[F]ederal courts, in 

appropriate circumstances, may take notice of proceedings in other courts, 

both within and without the federal judicial system, if those proceedings 

have a direct relation to matters at issue.”). 
6 

In an amended complaint newly filed in our case,4

 Mr. Baker again 

failed to explain what each defendant had done, when the defendant had 

done it, how it had resulted in harm, and what specific right had been 

violated. Instead, Mr. Baker added unnecessary legal arguments and 

details. These additions did not cure the earlier pleading defects, and the 

doctrine of judicial estoppel does not apply. 

III. The district court had the discretion to dismiss the amended 

complaint rather than strike the immaterial parts.

Mr. Baker argues that the district court should have stricken the 

excess allegations rather than dismiss the amended complaint. In different 

circumstances, striking the excess allegations might suffice as a remedy. 

See Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) (stating that 

when the complaint is not short and plain, the district court can strike the 

redundant or immaterial parts under Rule 12(f)); see also Davis v. Ruby 

Foods, Inc., 269 F.3d 818 (7th Cir. 2001) (holding that when the complaint 

otherwise satisfied Rule 8, inclusion of irrelevant material did not justify 

dismissal of the suit). But sifting through the excess allegations here would 

have imposed a considerable burden, and Mr. Baker never suggested in 

district court that he would withdraw his extraneous allegations or legal 

arguments. In these circumstances, the district court had the discretion to 

 

4 Mr. Baker did not try to rectify these deficiencies in the earlier case. 

Instead, he filed the amended complaint in our case. 
7 

dismiss the amended complaint rather than sua sponte order the striking of 

immaterial allegations. 

IV. Mr. Baker’s characterization of a “primary right” does not affect 

the outcome.

Mr. Baker also argues that the dismissal was erroneous because a 

cause of action consists of a primary right and breach, as opposed to a 

remedy. But this observation does not affect the district court’s reasons for 

ordering dismissal. Thus, Mr. Baker’s characterization of the cause of 

action would not affect the outcome of this appeal. 

V. Conclusion

In the amended complaint, Mr. Baker failed to provide a short and 

plain statement of the claims. As a result, the district court had the 

discretion to dismiss the amended complaint, without prejudice, for 

noncompliance with Rule 8. We affirm.5

Entered for the Court 

 Robert E. Bacharach 

 Circuit Judge 

 

5 Mr. Baker requests leave to proceed in forma pauperis. We grant this 

request.