FILED

United States Court of Appeals

Tenth Circuit

February 20, 2015

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GARY FLUTE, SR., 

Plaintiff - Appellant,

v.

UNITED STATES OF AMERICA,

Defendant - Appellee.

No. 14-1316

(D.C. No. 1:14-CV-01269-LTB)

(D. Colo.)

 

ORDER AND JUDGMENT*

Before HARTZ, McKAY, and MATHESON, Circuit Judges.

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

unanimously that oral argument would not materially assist in the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is therefore ordered

submitted without oral argument.

Plaintiff Gary Flute, a federal prisoner representing himself pro se, filed a

complaint in the Federal Court of Claims alleging that “certain employees” of the Bureau

of Prisons transferred Plaintiff from a prison in Illinois to a prison in Colorado with only

four hours of notice, “which thereby triggered the effective ‘loss’ of ‘personal property’

*

 This order and judgment is not binding precedent, except under the doctrines of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

Appellate Case: 14-1316 Document: 01019387974 Date Filed: 02/20/2015 Page: 1 
and ‘wages.’” (R. at 17.) The Court of Claims concluded it lacked jurisdiction to

adjudicate Plaintiff’s claim, and it transferred the complaint to the District of Colorado. 

The Colorado district court instructed Plaintiff to file his complaint on the court’s current

form. Plaintiff obtained the correct form and filed a prisoner complaint identifying three

claims apparently based on the prison transfer: “deprivation of rights by and through

conspiracy against rights,” “obstruction of justice—agency proceedings,” and “theft by

deception/larceny.” (R. at 31-33 (capitalization omitted).)

A magistrate judge reviewed the complaint and concluded it failed to satisfy Rule

8 of the Federal Rules of Civil Procedure because, among other things, it failed to

“explain (1) what a defendant did to [Plaintiff]; (2) when the defendant did it; (3) how the

defendant’s action harmed him; and (4) what specific legal right the defendant violated.” 

(R. at 55 (citing Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th

Cir. 2007)).) The magistrate judge also concluded that the complaint “fail[ed] to assert

specifically the matter [Plaintiff] is challenging under the Federal Tort Claims Act

(FTCA) claim.” (R. at 55.) Plaintiff was ordered to file an amended complaint that

addressed these deficiencies.

Although Plaintiff filed an amended complaint, the district court concluded the

complaint failed to comply with the magistrate judge’s directives and contained the same

deficiencies as the original complaint. The court accordingly dismissed the complaint

without prejudice for failure to comply with Rule 8 and with the magistrate judge’s order.

We review the district court’s dismissal of Plaintiff’s complaint for abuse of

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discretion. Nasious, 492 F.3d at 1161. After thoroughly reviewing Plaintiff’s brief and

the record on appeal, we are not persuaded the district court abused its discretion in

dismissing the complaint without prejudice for failure to comply with Rule 8. Although

Plaintiff’s pro se pleadings must be liberally construed, he still bears “the burden of

alleging sufficient facts on which a recognized legal claim could be based.” Hall v.

Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Given the confusing and conclusory

nature of Plaintiff’s original and amended complaints, we see no error in the district

court’s conclusion that Plaintiff failed to meet this burden.

Accordingly, for substantially the same reasons given by the magistrate judge and

district court, we AFFIRM the district court’s dismissal of this case. We GRANT

Plaintiff’s motion to proceed in forma pauperis on appeal but remind him he is obligated

to continue making partial payments until the entire filing fee has been paid in full.

Entered for the Court

Monroe G. McKay

Circuit Judge

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