Appellate Case: 22-1139 Document: 010110727714 Date Filed: 08/22/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 22, 2022 _________________________________ Christopher M. Wolpert Clerk of Court WALTER M.J. KOLAK,
Plaintiff - Appellant,
v. No. 22-1139 (D.C. No. 1:22-CV-00306-LTB-GPG) ARAPAHOE COUNTY, ET AL.; (D. Colo.) ARAPAHOE COUNTY SHERIFFS FACILITY, ET AL.; HEALTH AND SAFETY OF AMERICA, ET AL.; WELLPATH, ET AL.,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before MORITZ, BRISCOE, and CARSON, Circuit Judges. _________________________________
Walter Kolak, proceeding pro se,1 asserted several claims under 42 U.S.C. § 1983.
Adopting the magistrate judge’s report and recommendation in full, the district court
dismissed the action without prejudice under Federal Rule of Civil Procedure 41(b),
* After examining the briefs and 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). 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). 1 “We construe [Kolak’s] pro se pleadings and other papers liberally,” but we do not act as his advocate. Merryfield v. Jordan, 584 F.3d 923, 924 n.1 (10th Cir. 2009). Appellate Case: 22-1139 Document: 010110727714 Date Filed: 08/22/2022 Page: 2
concluding that Kolak had twice failed to comply with the pleading requirements of
Federal Rule of Civil Procedure 8. Kolak appeals. For the reasons explained below, we
affirm.
Background
Kolak initiated this action when he was a pretrial detainee at the Arapahoe County
Detention Facility. Kolak’s initial 20-page complaint alleged that jail staff, jail officials,
and Arapahoe County infringed his right to medical care under the Fourteenth
Amendment.2
The magistrate judge assigned to the case concluded that Kolak’s complaint
violated Rule 8, explaining that to comply with the rule, Kolak “must allege, in a clear,
concise, organized, and understandable manner” how each defendant harmed him, what
rights Kolak claims were violated, and his requested relief. R. 29. Accordingly, the
magistrate judge ordered Kolak to file an amended complaint to correct these
deficiencies.
In response to the magistrate judge’s order, Kolak filed an amended ten-page
complaint, asserting three claims for alleged violations of his right to medical care. The
matter was again referred to the magistrate judge. In reviewing this amended complaint,
the magistrate judge explained that its prior order had gone unheeded. It observed that
Kolak had again supplied “only vague, unclear, and conclusory allegations in support of
2 Kolak frames his claims as Eighth and Fourteenth Amendment violations. But since Kolak was detained pretrial, his constitutional right to adequate medical care is properly asserted under the Fourteenth Amendment. See Strain ex rel. Pratt v. Regalado, 977 F.3d 984, 989 (10th Cir. 2020), cert. denied, 142 S. Ct. 312 (2021). 2 Appellate Case: 22-1139 Document: 010110727714 Date Filed: 08/22/2022 Page: 3
his claim” and that the new pleading still “fail[ed] to explain, clearly and concisely,” the
necessary information. Id. at 61. In particular, the amended complaint did not explain
“what each defendant did to him”; “when the defendant did it; how the defendant’s action
harmed him”; and “what specific legal right [he] believes the defendant violated.” Id.
(quoting Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir.
2007)). Accordingly, the magistrate judge recommended Kolak’s case be dismissed
without prejudice under Rule 41(b) for failure to comply with Rule 8’s pleading
requirements.
The district court overruled Kolak’s objections and adopted the magistrate judge’s
recommendation in full. The district court also denied Kolak leave to proceed in forma
pauperis on appeal without prejudice to renewal, reasoning that any appeal would not be
taken in good faith. See 28 U.S.C. § 1915(a)(3). Kolak appeals and renews his motion to
proceed in forma pauperis on appeal.
Analysis
“We review dismissals under Rule 41(b) for abuse of discretion.” Nasious, 492
F.3d at 1161 (reviewing dismissal under Rule 41(b) for failure to comply with Rule 8). A
district court abuses its discretion when it makes a clear error, “venture[s] beyond the
limits of permissible choice under the circumstances,” or “issues an arbitrary, capricious,
whimsical[,] or manifestly unreasonable judgment.” Hamric v. Wilderness Expeditions,
Inc., 6 F.4th 1108, 1117 (10th Cir. 2021) (quoting Birch v. Polaris Indus., Inc., 812 F.3d
1238, 1247 (10th Cir. 2015)). Further, we may affirm the decision below “on any ground
supported by the record.” Johnson v. Spencer, 950 F.3d 680, 711 n.13 (10th Cir. 2020).
3 Appellate Case: 22-1139 Document: 010110727714 Date Filed: 08/22/2022 Page: 4
Kolak argues that his case should not have been dismissed because he complied
with the requirements of Rule 8.3 Under Rule 8, a complaint “must contain . . . a short
and plain statement of the claim showing that the [plaintiff] is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). Further, a complaint must contain “simple, concise, and direct”
allegations. Fed. R. Civ. P. 8(d)(1). It “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 [he or she] believes the defendant violated.” Nasious, 492 F.3d at
1163. And while we remain cognizant “that pro se litigants may be hard pressed to
conform to Rule 8(a)’s requirement of brevity while attempting to provide the defendant
fair notice,” Toevs v. Reid, 267 F. App’x 817, 819 (10th Cir. 2008) (unpublished),4 their
“pro se status does not relieve [them] of [their] obligation to comply with procedural
rules,” Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.3 (10th Cir. 2002).
We have reviewed Kolak’s amended complaint. As a preliminary matter, we
acknowledge that Kolak’s complaint is a reasonable length—ten pages. We also
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Appellate Case: 22-1139 Document: 010110727714 Date Filed: 08/22/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 22, 2022 _________________________________ Christopher M. Wolpert Clerk of Court WALTER M.J. KOLAK,
Plaintiff - Appellant,
v. No. 22-1139 (D.C. No. 1:22-CV-00306-LTB-GPG) ARAPAHOE COUNTY, ET AL.; (D. Colo.) ARAPAHOE COUNTY SHERIFFS FACILITY, ET AL.; HEALTH AND SAFETY OF AMERICA, ET AL.; WELLPATH, ET AL.,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before MORITZ, BRISCOE, and CARSON, Circuit Judges. _________________________________
Walter Kolak, proceeding pro se,1 asserted several claims under 42 U.S.C. § 1983.
Adopting the magistrate judge’s report and recommendation in full, the district court
dismissed the action without prejudice under Federal Rule of Civil Procedure 41(b),
* After examining the briefs and 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). 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. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). 1 “We construe [Kolak’s] pro se pleadings and other papers liberally,” but we do not act as his advocate. Merryfield v. Jordan, 584 F.3d 923, 924 n.1 (10th Cir. 2009). Appellate Case: 22-1139 Document: 010110727714 Date Filed: 08/22/2022 Page: 2
concluding that Kolak had twice failed to comply with the pleading requirements of
Federal Rule of Civil Procedure 8. Kolak appeals. For the reasons explained below, we
affirm.
Background
Kolak initiated this action when he was a pretrial detainee at the Arapahoe County
Detention Facility. Kolak’s initial 20-page complaint alleged that jail staff, jail officials,
and Arapahoe County infringed his right to medical care under the Fourteenth
Amendment.2
The magistrate judge assigned to the case concluded that Kolak’s complaint
violated Rule 8, explaining that to comply with the rule, Kolak “must allege, in a clear,
concise, organized, and understandable manner” how each defendant harmed him, what
rights Kolak claims were violated, and his requested relief. R. 29. Accordingly, the
magistrate judge ordered Kolak to file an amended complaint to correct these
deficiencies.
In response to the magistrate judge’s order, Kolak filed an amended ten-page
complaint, asserting three claims for alleged violations of his right to medical care. The
matter was again referred to the magistrate judge. In reviewing this amended complaint,
the magistrate judge explained that its prior order had gone unheeded. It observed that
Kolak had again supplied “only vague, unclear, and conclusory allegations in support of
2 Kolak frames his claims as Eighth and Fourteenth Amendment violations. But since Kolak was detained pretrial, his constitutional right to adequate medical care is properly asserted under the Fourteenth Amendment. See Strain ex rel. Pratt v. Regalado, 977 F.3d 984, 989 (10th Cir. 2020), cert. denied, 142 S. Ct. 312 (2021). 2 Appellate Case: 22-1139 Document: 010110727714 Date Filed: 08/22/2022 Page: 3
his claim” and that the new pleading still “fail[ed] to explain, clearly and concisely,” the
necessary information. Id. at 61. In particular, the amended complaint did not explain
“what each defendant did to him”; “when the defendant did it; how the defendant’s action
harmed him”; and “what specific legal right [he] believes the defendant violated.” Id.
(quoting Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir.
2007)). Accordingly, the magistrate judge recommended Kolak’s case be dismissed
without prejudice under Rule 41(b) for failure to comply with Rule 8’s pleading
requirements.
The district court overruled Kolak’s objections and adopted the magistrate judge’s
recommendation in full. The district court also denied Kolak leave to proceed in forma
pauperis on appeal without prejudice to renewal, reasoning that any appeal would not be
taken in good faith. See 28 U.S.C. § 1915(a)(3). Kolak appeals and renews his motion to
proceed in forma pauperis on appeal.
Analysis
“We review dismissals under Rule 41(b) for abuse of discretion.” Nasious, 492
F.3d at 1161 (reviewing dismissal under Rule 41(b) for failure to comply with Rule 8). A
district court abuses its discretion when it makes a clear error, “venture[s] beyond the
limits of permissible choice under the circumstances,” or “issues an arbitrary, capricious,
whimsical[,] or manifestly unreasonable judgment.” Hamric v. Wilderness Expeditions,
Inc., 6 F.4th 1108, 1117 (10th Cir. 2021) (quoting Birch v. Polaris Indus., Inc., 812 F.3d
1238, 1247 (10th Cir. 2015)). Further, we may affirm the decision below “on any ground
supported by the record.” Johnson v. Spencer, 950 F.3d 680, 711 n.13 (10th Cir. 2020).
3 Appellate Case: 22-1139 Document: 010110727714 Date Filed: 08/22/2022 Page: 4
Kolak argues that his case should not have been dismissed because he complied
with the requirements of Rule 8.3 Under Rule 8, a complaint “must contain . . . a short
and plain statement of the claim showing that the [plaintiff] is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). Further, a complaint must contain “simple, concise, and direct”
allegations. Fed. R. Civ. P. 8(d)(1). It “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 [he or she] believes the defendant violated.” Nasious, 492 F.3d at
1163. And while we remain cognizant “that pro se litigants may be hard pressed to
conform to Rule 8(a)’s requirement of brevity while attempting to provide the defendant
fair notice,” Toevs v. Reid, 267 F. App’x 817, 819 (10th Cir. 2008) (unpublished),4 their
“pro se status does not relieve [them] of [their] obligation to comply with procedural
rules,” Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.3 (10th Cir. 2002).
We have reviewed Kolak’s amended complaint. As a preliminary matter, we
acknowledge that Kolak’s complaint is a reasonable length—ten pages. We also
acknowledge that, as Kolak points out, the district court seemingly failed to consider two
of his three claims, instead construing the amended complaint as asserting only “one
claim.” R. 58. But even with the leeway accorded to pro se litigants—and even if the
3 Kolak makes additional arguments related to the merits of his claims and requests an evidentiary hearing. But because the district court’s basis for dismissal was Kolak’s failure to adhere to Rule 8, we do not address those assertions. 4 We cite unpublished cases in this order and judgment only for their persuasive value. See 10th Cir. R. 32.1(A). 4 Appellate Case: 22-1139 Document: 010110727714 Date Filed: 08/22/2022 Page: 5
district court had considered all of Kolak’s claims (as it should have)—the record
supports the district court’s ruling. See Johnson, 950 F.3d at 711 n.13.
The principal defect throughout Kolak’s complaint is that it fails to adequately
explain which members of the jail’s medical staff he intends to sue. The form complaint
Kolak filled out identifies “HAS/Wellpath et al.; Medical Staff [at] [Arapahoe County
Detention Center]” as a defendant. R. 47. Yet the body of the complaint, supplemented
with handwritten pages, describes actions by various members of the jail’s medical and
security staff without distinguishing between who is, and who is not, meant to be a
defendant. Kolak’s failure to do so prevents defendants from having “sufficient notice to
begin preparing [their] defense” and fails to provide the district court with “sufficient
clarity to adjudicate the merits.” Nasious, 492 F.3d at 1163. We therefore affirm the
district court’s dismissal order.5
As a final matter, we grant Kolak’s motion to proceed in forma pauperis on
appeal. But we remind Kolak “of his continuing obligation to make partial payments until
his filing fee has been paid in full.” Jenkins v. Currier, 514 F.3d 1030, 1035 (10th Cir.
2008).
5 We note that generally a dismissal without prejudice permits Kolak to refile his action and more clearly state which claims—and what corresponding conduct—he means to allege against each potential defendant. See Nasious, 492 F.3d at 1162 (“Employing Rule 41(b) to dismiss a case without prejudice for failure to comply with Rule 8 of course allows the plaintiff another go at trimming the verbiage.”). 5 Appellate Case: 22-1139 Document: 010110727714 Date Filed: 08/22/2022 Page: 6
For the foregoing reasons, we affirm.
Entered for the Court
Nancy L. Moritz Circuit Judge