*

 This order and judgment is not binding precedent, except under the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

FILED

United States Court of Appeals

Tenth Circuit

October 27, 2009

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

M. BERNIECE JOHNSON, 

Plaintiff-Appellant,

v.

TODD K. FUSS; PAULA S.

BOWERS; CAROL DIETRICT FUSS;

MRS. DIETRICT, mother of Carol

Fuss; VICKIE FUSS, true name

unknown; JEAN WILLITT, Mother of

Todd Fuss; Mr. A. WILLITT, Jean

Willit’s husband; JOHN WIMBERLY,

true name unknown; TERA FUSS,

sister of Todd Fuss, true name

unknown; CRYSTAL FUSS, sister of

Todd Fuss, true name unknown;

ZANE FUSS, brother of Todd Fuss;

JERRY SMITH; DENVER POLICE

DEPARTMENT; JEFFERSON

COUNTY POLICE DEPARTMENT;

DAVID LITTMAN, (lawyer-ad litem);

WILLIAM KING, (lawyer

representing Todd Fuss); LARRY

LEECH, (lawyer pretending to

represent the plaintiff while helping

Todd Fuss and cohorts),

Defendants-Appellees.

No. 09-1212

(D.C. No. 09–CV–00225–ZLW)

(D. Colo.)

 

ORDER AND JUDGMENT*

__________________________
-2-

Before LUCERO, McKAY, and MURPHY, Circuit Judges.

After examining Plaintiff’s brief and the 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 is a pro se state prisoner civil rights appeal. Plaintiff filed this § 1983

suit against numerous individuals who were allegedly involved in the loss of her

child custody rights. Following its review of Plaintiff’s second amended

complaint, the district court dismissed this action, without prejudice, for failure to

comply with the requirements of Federal Rule of Civil Procedure 8. We review a

dismissal under Rule 8 for abuse of discretion, “[b]ut what we consider compliant

with this standard depends” on “whether dismissal was ordered with or without

prejudice to subsequent attempts at amendment.” Nasious v. Two Unknown

B.I.C.E. Agents, 492 F.3d 1158, 1161-62 (10th Cir. 2007). Where, as here, a

complaint is dismissed without prejudice “a district court may, without abusing its

discretion, enter such an order without attention to any particular procedures.” Id.

at 1162.

Originally a magistrate judge ordered Plaintiff to show cause why he should

not dismiss her first amended complaint, which consisted of state tort law claims
-3-

and did not allege state action, for lack of subject matter jurisdiction. See Conn v.

Gabbert, 526 U.S. 286, 290 (1999) (“Section 1983 provides a federal cause of

action against any person who, acting under color of state law, deprives another of

his federal rights.”). Upon reviewing Plaintiff’s response alleging that her federal

constitutional rights had been violated, the magistrate judge allowed the case to go

forward but ordered Plaintiff to file a second amended complaint that included

these violations. The magistrate judge specifically advised Plaintiff that a

complaint filed in federal court must explain “‘what each defendant did to him or

her; when the defendant did it; how the defendant’s action harmed him or her; and,

what specific legal right the plaintiff believes the defendant violated.’” (Doc. 14

at 3, quoting Nasious, 492 F.3d at 1163). Plaintiff then filed a second amended

complaint with the district court that included an additional claim for relief and

additional Defendants. However, the district court concluded that the complaint

still did not comport with the requirements of Rule 8, and it thus dismissed the

case without prejudice.

After careful review of Plaintiff’s brief and the record on appeal, we

conclude that the district court did not abuse its discretion in dismissing the

complaint. Under Rule 8(a), a complaint must include “a short and plain statement

of the claim showing that the pleader is entitled to relief; and . . . a demand for the

relief sought.” While a court must construe a pro se litigant’s pleadings

“liberally,” holding them to “a less stringent standard than formal pleadings
1

In her pro se brief Plaintiff expressed some confusion as to the proper

court in which to bring her action. (Appellant Br. at 9). After review of the

district court decision and the record, it appears that the magistrate’s initial

impressions were probably correct; the proper place for plaintiff to file her

complaint may have been a state trial court. Thus, although Plaintiff remains free

to re-file her claims in a properly pleaded complaint, given the nature of her

claims, she may fare better by filing in a state court. However, in so noting we

express no opinion on the merits of Plaintiffs claims or her likelihood of success

in either federal or state court.

-4-

drafted by lawyers,” it must not “assume the role of advocate for the pro se

litigant.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Here, despite

Plaintiff’s additional claim and the added Defendants, Plaintiff has not made any

plain statement identifying any specific violations of federal constitutional rights

that would show she was entitled to relief under § 19831

 As the district court

correctly stated, “[a]lthough the second amended complaint must be construed

liberally, the Court will not construct legal argument for a pro se litigant.” (Doc.

17 at 4).

For substantially the same reasons set forth in the district court’s order, we

AFFIRM. We also GRANT Plaintiff’s motion to proceed without prepayment of

fees and remind Plaintiff of her obligation to continue making partial payments

until her filing fee has been paid in full.

Entered for the Court

Monroe G. McKay

Circuit Judge