Gibson v. Attorney General of the United States

Filing 17

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 1/7/16. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02374-GPG
ERIC WILMER GIBSON,
Plaintiff,
v.
ATTORNEY GENERAL OF THE UNITED STATES,
DEPARTMENT OF LABOR,
NEW ORLEANS POLICE DEPARTMENT,
US CUSTOMS AND BORDER PROTECTION,
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMM.,
EMPIRE TERRACE, LLC, 50.05%, RMA385 PART,
HUDSPETH COUNTY, Case 498205, and
ALBERT HEIN, FBI Personnel Security,
Defendants.

ORDER OF DISMISSAL

Plaintiff Eric Wilmer Gibson currently resides in Colorado Springs, Colorado.
Plaintiff initiated this action by filing pro se a Complaint and an Application to Proceed in
District Court Without Prepaying Fees or Costs. Magistrate Gordon P. Gallagher
granted the Application on October 27, 2015. Magistrate Judge Gallagher then
reviewed the merits of the Complaint and found that the Complaint failed to comply with
Fed. R. Civ. P. 8, because the allegations were prolix and unintelligible. Plaintiff was
directed to amend the Complaint, state proper jurisdiction, and assert in a short and
concise manner how each named defendant participated in violating his legal rights.
After the Order to Amend was returned to the Court marked AReturn to Sender Not
Deliverable as Addressed Unable to Forward,@ ECF No. 9, Plaintiff informed the Court

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that the address is correct, the U.S. Post Office was remiss in returning the Court=s mail,
and to resend the Order to the same address. On November 29, 2015, Magistrate Judge
Gallagher directed the Clerk of the Court to resend the Order to Amend to Plaintiff and
allowed him an additional thirty days from the date of the November 29 Order to amend.
On November 30, 2015, Plaintiff filed a Request to file a 150-page amended complaint,
ECF No. 13, and the proposed complaint. Subsequently, on December 24, 2015,
Plaintiff filed a Second Request to file a 301-page amended complaint, in which he also
asked that all previous complaints be disregarded. The operative filings at issue now are
the two complaints Plaintiff filed on December 24, 2015, that together are 301 pages long.
In the first complaint submitted on December 24, 2015, Plaintiff appears to be
challenging the Federal Bureau of Investigation=s alleged continual distribution of illegal
records for the past twenty-four years. Plaintiff contends that these illegal records
pertain to an incident that took place between him and his daughter in 1993, which
resulted in his daughter filing a complaint with the State of Texas Child Protective
Services. ECF No. 16-1 at 4-5. Another incident addressed in the alleged illegal
records is an incident in 1997 that involved Plaintiff=s Amisconduct@ in an official vehicle by
a public school. Id. at 5. Plaintiff also states in the Jurisdiction section of the complaint
form that he is asserting jurisdiction pursuant to 28 U.S.C. ' 1346, but he then in each
claim identifies other various federal statutes.
Nonetheless, the supporting factual allegations under each claim for relief in the
first complaint are not presented in a short and concise manner. In the First Claim for
Relief section of the complaint form, Plaintiff states that he Adistributed the 539 facts and
events in this complaint based on the following 14 US codes and other statutes.@ ECF

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No. 16-1 at 3. He then lists the statutes that he claims have been violated, and, in
particular, he cites the provisions of “5 USC, Sec 81 FECA-8120 Report of Injury.” Id.
Plaintiff also asserts that he has Aidentified additional facts as related to this claim (see
attached).@ ECF No. 16-1 at 3. He identifies the pertinent facts, with a number, date,
and short description, but he does not attach any pages to the first complaint that contain
these facts. Plaintiff must intend for the Court to rely on the 524 facts that he has
identified and attached to the second complaint; but even if the Court does consider the
524 facts, they are conclusory and vague and no more than a description of events that
have taken place. The Plaintiff repeats the same format for the second and third claims
in the first complaint. Id. at 4 and 5.
The second complaint, also submitted on December 24, 2015, names at least fifty
defendants and is 295 pages long. Plaintiff identifies fourteen claims in this complaint,
but the claims are simply statements of law. Each of the fourteen claims has an
abbreviation, e.g., claim one is asserted pursuant to 5 U.S.C. § 81, and is identified as
(5-81). See ECF No. 16-1 at 12. In each of the 524 facts, Plaintiff identifies by
abbreviation all of the claims that pertain to that fact. As stated above, the 524 facts
appear to be a chronological listing of events that have taken place since 1991.
Plaintiff=s December 24 complaints fail to comply with Rule 8. The complaints are
prolix and unintelligible. Plaintiff has not asserted his claims in either complaint in a short
and concise manner. “Rule 8 serves the important purpose of requiring plaintiffs to state
their claims intelligibly so as to inform the defendants of the legal claims being asserted.”
Mann v. Boatright, 477 F.3d 1140, 1148 (10th Cir. 2007). “[U]nnecessary prolixity in a
pleading places an unjustified burden on the court and the party who must respond to it.”

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Carbajal v. City and County of Denver, 502 F. App’x 715, 716 (10th Cir. 2012 (quoting
Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988).
Therefore, the Court will dismiss the action because Plaintiff has failed to comply
with the October 27, 2015 Order to Amend and submit an amended complaint that follows
Rule 8.
The Court also certifies pursuant to 28 U.S.C. ' 1915(a)(3) that any appeal from
this Order is not taken in good faith, and, therefore, in forma pauperis status is denied for
the purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962). If Plaintiff
files a notice of appeal he must also pay the full $505 appellate filing fee or file a motion to
proceed in forma pampers in the Tenth Circuit within thirty days in accordance with Fed.
R. App. P. 24. Accordingly, it is
ORDERED that the Complaint and action are dismissed without prejudice
pursuant to Fed. R. Civ. P. 41(b) for failure to comply with a Court order to file an
amended complaint that follows Fed. R. Civ. P. 8 and for failure to prosecute. It is
FURTHER ORDERED that leave to proceed in forma pampers on appeal is
denied. It is
FURTHER ORDERED that all pending motions are denied as moot.
DATED at Denver, Colorado, this

7th day of

January

BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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, 2016.