FILED

United States Court of Appeals

Tenth Circuit

April 9, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JUSTIN J. RUEB #94567, a/k/a

JUSTIN RUEB, a/k/a JUSTIN

JOSEPH RUEB; ALAN MEADS;

GEORGE SHANKLIN; RUDY BALL,

Plaintiffs-Appellants,

LEROY ARMIJO; CESAR

CABRERA, JR.; JORDON BURDEN;

RAYMOND CAIN; FRANCISCO

CORDOZA; SHANE CROOK;

ANASTASIA HELOV; ROY

HERNANDEZ; DARYL WAGNER;

VERNON TEMPLEMAN; RAY

MAYNES; GILBERT MONTUR;

LARRY SCOTT; JARED

VILLAREAL; CARLOS

MONDRAGON; BOBBY

VALENZUELA; KHADASI Z.

HORLEN; JACOB OAKLEY; LARRY

UPTON; WAYNE LUOMA;

PATRICK PLACENSIO; SHAWN

SHIELDS; RICKY MAES; DUSTIN

SHERWOOD; JOHNNY J.

QUINTANA; JAMES R.

WASHINGTON,

Plaintiffs,

v.

ARISTEDES ZAVARAS; BROWN

(CAPTAIN); JOHN OR JANE DOE

#3; DENNIS BURBANK;

KATHLEEN BOYD; DANIEL DENT;

JIM GENTILE; CATHIE HOLST;

JOHN OR JANE DOE # 1; C.

No. 09-1313

(D.C. No. 1:09-CV-00072-ZLW)

(D. Colo.)

Appellate Case: 09-1313 Document: 01018399510 Date Filed: 04/09/2010 Page: 1 
* 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. This order and judgment is

not binding precedent, except under the doctrines of law of the case, res judicata,

and collateral estoppel. It may be cited, however, for its persuasive value

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

2

McCARTY; CHRISTINE

MOSCHETTI; R. OLIVETT; LARRY

REID; C. ROY; PEGGY STEELE;

RICHARD WREN; D. ZUPAN;

BUCHANAN; EUGENE ATHERTON;

C. BARR; CORTEZ; D. P. DIAZ;

SUE GRISENTI; H. T. HUERTAS;

JOHN DOE # 2; MUNSON; M. N.

McCORMICK; JAMES A. OLSON; J.

ROMERO; KEN SALAZAR; R.

TWILLENER; D. WILLIAMS;

BROWN (SERGEANT); S. OWENS;

BOBBY ALLEN; Y. BROWN; ANNE

DEFUSCO; DANNY FOSTER; M.

HILDEBRAND; CARL HOLDITCH;

J. JIMINEZ; McGREGORY; C. MAY;

PANEK; RODECAPE; JOHN

SUTHERS; G. VENDETTI; H.

WILLIAMS; ANTHONY

DECESARO; R. WILLIAMS;

ROBERT ALLEN; BRANDT; JAMES

DALTON; S. GARCIA; HALSTEAD;

SUSAN JONES; ANGEL MEDINA;

MARTINEZ; DONICE NEAL; J.

PEDRIE; W. RICHTER; JOHN

STONER; H. WILKINS; J. WRIGHT,

Defendants-Appellees.

ORDER AND JUDGMENT*

Appellate Case: 09-1313 Document: 01018399510 Date Filed: 04/09/2010 Page: 2 
1 Defendants-appellees were not served in the district court and have not

entered an appearance or filed a brief in this appeal.

2 The court had apparently received the proper § 1915 materials from

Mr. Rueb.

3

Before MURPHY, McKAY, and BALDOCK, Circuit Judges.

This prisoner-civil-rights case was originally filed by forty-eight state

prisoners, all of whom are in Colorado administrative segregation facilities, and

two private persons asserting numerous claims for relief and challenging the

constitutionality of a number of Colorado Department of Corrections (CDOC)

policies, including policies regarding marriage by prison inmates, conjugal visits,

family visits, and strip searches.1

 The district court issued an order directing

plaintiffs to file an amended complaint using the proper court form and to provide

addresses for each named plaintiff and each named defendant. The order also

directed each plaintiff, other than Mr. Justin Rueb, to submit a proper 28 U.S.C.

§ 1915 motion and affidavit along with a certified copy of each prisoner’s

trust-fund statement for the six-month period immediately preceding the filing.2

Although an amended complaint was filed, twenty-nine plaintiffs failed to file

their § 1915 motions and affidavits or to file their certified trust-fund statements. 

As a result, the district court issued an order dismissing those plaintiffs from

the suit. 

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On June 4, 2009, the district court issued an order denying class

certification, denying plaintiffs’ request for joinder, and concluding that the

parties were misjoined because “[a]llowing Plaintiffs to proceed as a group will

cause unnecessary delay, expense, potential confusion, and burden on the part of

the Court, as well as Defendants, and will undermine the principle of fundamental

fairness implicit in Fed. R. Civ. P. 20(b) and Fed. R. Civ. P. 21.” R. Vol. 3

at 386. Noting that “[p]roceeding in forma pauperis in a civil case is a privilege,

not a right --fundamental or otherwise,” the district court refused to permit

plaintiffs “to continue their abusive tactics clearly intended to burden and

overwhelm the Court and Defendants with unduly complicated litigation.” Id. 

The court dismissed all remaining plaintiffs except Mr. Rueb and explained that

the dismissed plaintiffs were free to initiate their own actions. The court also

denied all pending motions, including the motion to appoint counsel. 

Mr. Rueb was then given thirty days in which to file an amended complaint

limited to his own claims. The court went to great lengths in its June 4 order to

explain to Mr. Rueb the purposes of a complaint and the requirements of

Fed. R. Civ. P. 8. On July 16, when Mr. Rueb had failed to file the amended

complaint within the time allowed, the district court dismissed the complaint and

the action without prejudice for failure to comply with the June 4 order and for

failure to prosecute. Judgment was entered the same day in favor of defendants

and against Mr. Rueb. Mr. Rueb and three other inmates appeal.

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Appellants take exception to all of the orders of the district court,

concluding ultimately that dismissal of the entire lawsuit was “abusive.” Opening

Br. at 1. Specifically, they argue that various groups of plaintiffs should not have

been dismissed, that it was an abuse of discretion to “refute[] the plaintiffs’

collective right to share and divide the $350 filing fee equally in this case,” id.

at 2, that the refusal to allow joinder was an abuse of discretion, that it was error

to deny appointment of counsel and class certification, and that “the District

Judge abused her discretion by dismissing this lawsuit to punish plaintiff Rueb for

failing to ‘cure’ ficticious [sic], non-existent inadequacies in the complaint,” id. 

The only issue properly before us on appeal, however, is whether the dismissal

for failure to comply with Fed. R. Civ. P. 8 and for failure to prosecute was

proper. We conclude that it was, and we affirm.

Our jurisdiction arises under 28 U.S.C. § 1291. Rule 8 of the Federal Rules

of Civil Procedure requires, among other things, “a short and plain statement of

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

The requirement of Rule 8(a)(2) that allegations in a complaint plausibly suggest

(and not be merely consistent with) illegal conduct by the defendants means that

the Rule’s “plain statement” must have “enough heft” to demonstrate that the

pleader is entitled to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557

(2007). 

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Mr. Rueb’s amended complaint named fifty plaintiffs, covered ninety-five

pages, and listed 124 claims. The amended complaint failed to comply in many

respects with Rule 8. For instance, claims were made without the factual support

to show a plausible claim to relief. See id. at 570. Further, many of the claims

failed to mention a specific time, place, or person involved with the alleged

offenses, thus providing inadequate notice to defendant or defendants. See id. at

565 n.10. It was clear that not all claims applied to all plaintiffs, but no effort

was made to delineate which claims applied to whom. 

When the district court dismissed all plaintiffs except Mr. Rueb, it ordered

him to file another amended complaint complying with Rule 8 and limited solely

to his own claims. Mr. Rueb failed, and indeed refused, to comply with that

order. As a result, the district court dismissed the case without prejudice. At that

point, this case was concluded. None of the district court’s other rulings are

before us because Mr. Rueb’s refusal to amend his complaint in order to comply

with Rule 8 ended the matter. Because the dismissal was without prejudice,

however, the substantive issues raised, particularly those concerning class

certification and appointment of counsel, are not foreclosed from being raised in

any subsequent proceeding, subject to any applicable statute of limitations.

Mr. Rueb’s motions to update and supplement issues on appeal are

DENIED. The proposed supplemental material was considered but was found not

to be relevant to the controlling issue in this case which was dismissed for failure

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to comply with the court’s order to file an amended complaint in compliance with

Rule 8. Mr. Rueb’s motion to vacate this court’s October 21, 2009, order

dismissing the majority of the appellants from this appeal for failure to file the

required motion to proceed without prepayment of the filing fees is DENIED. 

Appellants’ motion for leave to proceed without prepayment of the appellate

filing fees is GRANTED. Appellants are reminded that they are obligated to

continue making partial payments until the entire fee has been paid. 

The judgment of the district court dismissing this case without prejudice is

AFFIRMED. 

Entered for the Court

Monroe G. McKay

Circuit Judge

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