Popham v. Cobb County

392 F. App'x 677
CourtCourt of Appeals for the Tenth Circuit
DecidedAugust 11, 2010
DocketNo. 10-11551
StatusPublished
Cited by5 cases

This text of 392 F. App'x 677 (Popham v. Cobb County) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Popham v. Cobb County, 392 F. App'x 677 (10th Cir. 2010).

Opinion

PER CURIAM:

Peter Popham appeals the district court’s order dismissing without prejudice his pro se civil rights complaint, filed pursuant to 42 U.S.C. §§ 1983 and 1985. Popham argues that the district court abused its discretion in dismissing his complaint based on his failure to comply with court orders to amend his complaint, because his original complaint complied with the Federal Rules of Civil Procedure. For the reasons set forth below, we affirm.

I.

Popham filed a 145-page pro se complaint against Cobb County, Georgia; Cobb County Prison Warden Lew Alder; Cobb County Sheriff Neil Warren; Cobb County Superior Court Clerks Jay Stephenson and Steve Fox, (“Cobb County defendants”); The City of Kennesaw; Kennesaw Mayor Leonard Church; Ken-nesaw Mayor Pro Term Mark Mathews; attorneys Fred Bentley, Jr., Nancy Ingram Jordan, and Coleen Hosak, (“Kenne-saw defendants”); Cobb County Superior Court Judges Watson White, Mary Staley, and Conley Ingram; Cobb County Juvenile Court Judge Juanita Stedman; Georgia Attorney General Thurbert Baker (“State of Georgia defendants”); and attorney Kevin Moore. Popham alleged that the state courts “ignored the facts and merits” of prior election-contest and zoning appeal cases he had filed in Cobb County Superior Court. He also asserted that the defendants acted without jurisdiction and in violation of their oaths by manipulating the legal system in a manner that deprived him of his civil liberties and prevented access to the courts. Popham’s complaint set forth 11 counts. Each count stated that “[p]laintiff incorporates herein [679]*679by reference the allegations set forth in the preceding paragraphs of his complaint as if fully set forth here.”

The State of Georgia, Cobb County, and Kennesaw defendants filed motions for a more definite statement, asserting that Popham’s complaint was a “shotgun” complaint, because it incorporated by reference all facts alleged in the preceding counts. They asserted that it was impossible to determine which facts pertained to which claim or defendant, and that they could not reasonably respond to Popham’s vague and ambiguous claims. The State of Georgia defendants also asserted that Pop-ham’s 144-page complaint did not comply with Fed.R.Civ.P. 8’s requirement that the complaint contain a short and plain statement of the claim.

Popham responded that his complaint satisfied the requirements of Fed.R.Civ.P. 8, as well as Fed.R.Civ.P. 9(b)’s heightened pleading requirement.

On August 5, 2009, 2009 WL 2425954, the district court found that Popham’s complaint was “a quintessential shotgun pleading,” because it “contained] several counts, each one incorporating by reference the allegations of its predecessors.” The court granted the defendants’ motions for a more definite statement and ordered Popham to “restate his [c]omplaint so as to set forth a short and plain statement of each claim showing that he is entitled to relief.” The court instructed Popham to “clearly specify: (1) which cause or causes of action are asserted against each Defendant; (2) what factual allegations form the basis of each claim against each Defendant; and (3) each legal theory upon which he asserts liability against each Defendant.” It ordered Popham to file his restated complaint “no later than August 25, 2009.”

On August 31, 2009, the district court noted that Popham had failed to respond to or comply with its order to file a restated complaint. It ordered Popham to show cause, within ten days, why his complaint should not be dismissed with prejudice for want of prosecution.

On September 8, 2009, Popham filed a response, stating that he had not learned of the court’s August 5, 2009 order to file a restated complaint until September 3, 2009, when he received the order to show cause. He requested oral argument so that the court could “further identify the parts of his ... [c]omplaint ... that should be restated.”

On January 25, 2010, Popham’s case was reassigned to a different district court judge. Three days later, the district court ordered Popham to file an amended complaint no later than February 12, 2010. The order provided that “[i]f the plaintiff has not filed and served an amended complaint on or before that date as this court has directed him to do, this matter will be DISMISSED without further warning from this court.”

On February 8, 2010, Popham filed a Rule 60(b) motion for reconsideration of the court’s order to file an amended complaint. Popham asserted that his original complaint complied with Rules 8(a)(2) and 9(b). He contended that the Federal Rules of Civil Procedure required the defendants to answer his complaint before moving to strike redundant allegations or moving to dismiss the complaint. Popham requested oral argument so that the court could identify the specific sections of his complaint that should be restated.

The defendants responded that Pop-ham’s Rule 60(b) motion simply reargued points the court had already deemed unpersuasive and failed to identify extraordinary circumstances that would entitle him to relief.

[680]*680The State of Georgia defendants filed a motion to dismiss for failure to prosecute and failure to obey court orders. They noted that Popham had repeatedly failed to comply with the court’s orders to file an amended complaint.

On March 8, 2010, the district court issued an order, noting that it had found Popham’s original complaint to be an insufficient shotgun pleading, and that it had given Popham several opportunities over a six-month period to re-file his complaint, but Popham had failed to do. so. The court determined that, although Popham was proceeding pro se, it could not permit him to repeatedly ignore clear directives and orders. It stated that it had reviewed Popham’s motion for reconsideration and determined that Popham failed to raise any legal or factual issues warranting an order setting aside the court’s orders to file an amended complaint. The court denied Popham’s motion for reconsideration and his request for oral argument. It dismissed Popham’s complaint without prejudice, based on Popham’s continued failure to comply with court orders to amend his complaint.

II.

Under Fed.R.Civ.P. 41(b), “[i]f the plaintiff fails to ... comply with [the Rules of Civil Procedure] or a court order, a defendant may move to dismiss the action or any claim against it.” Fed.R.Civ.P. 41(b). We review a Rule 41(b) dismissal without prejudice for abuse of discretion. Gratton v. Great Am. Commc’ns, 178 F.3d 1373, 1374 (11th Cir.1999).

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Bluebook (online)
392 F. App'x 677, Counsel Stack Legal Research, https://law.counselstack.com/opinion/popham-v-cobb-county-ca10-2010.