Tuttamore v. Bop Dir. Lappin
| Decision Date | 19 April 2011 |
| Docket Number | D.C. 1:10-CV-01142-MSK,D.C. No. 1:10-CV-01174-ZLW,D.C. No. 1:11-CV-00044-BNB,No. 10-1558,No. 11-1050,No. 10-1524,10-1524,10-1558,11-1050 |
| Parties | TIMOTHY S. TUTTAMORE, Plaintiff - Appellant, v. BOP DIRECTOR LAPPIN, in his official capacity; REGIONAL DIRECTOR NALLEY, in his official and individual capacity; WARDEN BLAKE DAVIS, in his official and individual capacity; SIS SMITH, individual capacity; DHO RAMIREZ, individual capacity; MRS. LARIVIA, individual capacity; MRS. RANGEL, individual capacity; RICHARD MADISON, individual capacity; UNKNOWN SIS OFFICIAL, individual capacity; and UNKNOWN ADX CHAPLAIN'S DEPT. SUPERVISOR, Defendants - Appellees. TIMOTHY S. TUTTAMORE, Petitioner - Appellant, v. WARDEN BLAKE R. DAVIS, Respondent - Appellee. TIMOTHY S. TUTTAMORE, Petitioner - Appellant, v. DR. ALLRED, ADX Medical Department; A. OSAGIE, ADX Medical Department; M. SMITH, ADX Medical Department; SHENG MO, ADX Medical Department; S. KELLER, ADX Medical Department; R. CAMACHO, ADX Medical Department; B. CINK, ADX Medical Department; DR. VINCENT YU; UNKNOWN ADX PHARMACIST; UNKNOWN LOCAL UROLOGIST; and UNKNOWN ADX UTILIZATION COMMITTEE MEMBERS, in their official and individual capacities, Defendants - Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Before BRISCOE, ANDERSON, and MURPHY, Circuit Judges.
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.
Timothy S. Tuttamore, proceeding pro se, is before our court once again, bringing three appeals from the dismissal of two federal civil rights actions and one 28 U.S.C. § 2241 petition for a writ of habeas corpus. We address each case in turn, after setting out the facts common to all three appeals.
Mr. Tuttamore is a federal prisoner currently incarcerated in the United States Penitentiary, Administrative Maximum ("ADX"), in Florence, Colorado. He is serving a 217-month term of imprisonment, consisting of two concurrent 97-month terms for armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d), and a consecutive 120-month term for use of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(B).
Prior to these three appeals, Mr. Tuttamore filed a number of actions in our court and other courts. In at least two other district court decisions, the court determined that "[a]n appeal from this decision could not be taken in good faith, and shall not be allowed without prepayment of the requisite filing fee." Tuttamore v. United States, 2005 WL 1502064, at *1 (N.D. Ohio, June 24, 2005) (unpublished); see also Tuttamore v. United States, 2005 WL 234368, at *2 (N.D. Ohio, Feb. 1, 2005) (unpublished) (same). He was also a party to a prior appeal regarding restitution payments, Bradshaw v. Lappin, 320 Fed. Appx. 846 (10th Cir. 2009), in which he was partially successful, and an appeal regarding prison conditions that was dismissed prior to a decision on the merits, Bradshaw v. Lappin, No. 10-1434 (10th Cir. Oct. 19, 2010).
On May 10, 2010, Mr. Tuttamore filed a pro se civil rights complaint pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) and 42 U.S.C. § 1997(d) against numerous officials and employees at the prison. The complaint related to a disciplinary proceeding taken against Mr. Tuttamore after a weapon was found in his cell.1 On June 30, 2010, Mr. Tuttamore filed an amended complaint pursuant to Bivens and various other civil and criminal statutes. He was granted leave to proceed pursuant to 28 U.S.C. § 1915 on July 6, 2010.
On August 17, 2010, the magistrate judge to whom this case was referred ordered Mr. Tuttamore to file, within thirty days, a second and final amended complaint that (1) complied with the pleading requirements of Fed. R. Civ. P. 8; (2) alleged which claims were asserted pursuant to which statute; and (3) alleged the personal participation of each named defendant. On September 2, 2010, Mr. Tuttamore filed a second and final amended complaint pursuant to Bivens, 42 U.S.C. §§ 1997(d), 1985, 1986 and 2000, as well as 5 U.S.C. §§ 551.
The district court dismissed the complaint without prejudice, finding that the claims asserted by Mr. Tuttamore were "conclusory and confusing," "repetitive," and "unnecessarily verbose and... confusing." Order of Dismissal at 4, 6 and 7, R. Vol. 1 at 339, 341, 342. The court accordingly concluded thatthe "September 2 amended complaint does not meet the requirements of Fed. R. Civ. P. 8 and must be dismissed." Id. at 7.2
"Rule 8(a) dismissals are reviewed for an abuse of discretion, but to overcome a motion to dismiss, a plaintiff's allegations must move from conceivable to plausible." United States ex rel. Lemmon v. Envirocare of Utah, Inc., 614 F.3d 1163, 1167 (10th Cir. 2010).
Under Rule 8, a plaintiff must make a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Rule 8 serves the important function of enabling the court and the defendants to know what claims are being asserted and to determine how to respond to those claims. General allegations of harm are insufficient. Additionally, rambling narrations of fact coupled with conclusory legal assertions do not assist the court or the defendants. See Ashcroft v. Iqbal, ___U.S.___, 129 S. Ct. 1937, 1949 (2009).
We agree completely with the district court's assessment of Mr. Tuttamore's second amended complaint. It was rambling, disorganized, unfocused, and its legal assertions were conclusory and vague. His appellate brief fares no better, as it, too, is long, rambling and confusing. We conclude that the district court did not abuse its discretion in dismissing Mr. Tuttamore's second amended complaint without prejudice. We therefore affirm the dismissalof Mr. Tuttamore's complaint, for substantially the reasons stated by the district court.
The district court denied Mr. Tuttamore's request to proceed in forma pauperis on appeal, finding that "this appeal is not taken in good faith because Plaintiff has not shown the existence of a reasoned nonfrivolous argument on the law and facts in support of the issues raised on appeal." Order at 1, R. Vol. 1 at 349. Mr. Tuttamore has renewed his request before us. We DENY Mr. Tuttamore's motion to proceed on appeal in forma pauperis and we remind Mr. Tuttamore to pay the full $455 filing fee forthwith. We DISMISS this appeal as frivolous and assess a strike against Mr. Tuttamore, pursuant to 28 U.S.C. § 1915(g). See Jennings v. Natrona Cnty. Det. Ctr. Med. Facility, 175 F.3d 775, 780 (10th Cir. 1999).
APPEAL DISMISSED.
On May 17, 2010, Mr. Tuttamore filed a pro se Petition for a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2241. He alleged that prison officials violated his constitutional rights during proceedings which followed the discovery of a dangerous weapon in his cell. He claimed that the disciplinary proceedings that followed violated his due process rights. Mr. Tuttamore also alleged that there was insufficient evidence to convict him of the offense.
The district court reviewed all of Mr. Tuttamore's claims on their merits, rejected them all and denied his request for habeas relief. This appeal followed. We affirm.
The facts relevant to this particular appeal are as follows: On May 28, 2009, during a search of Mr. Tuttamore's cell, Bureau of Prisons ("BOP") authorities found a razor blade hidden inside an intercom box. Prison officials wrote an Incident Report, in which they charged Mr. Tuttamore with the disciplinary offense of possessing a dangerous weapon. In accordance with prison regulations, the BOP suspended processing the Incident Report and referred the matter to the Federal Bureau of Investigation ("FBI") for possible criminal charges. The FBI ultimately declined to prosecute Mr. Tuttamore, and referred the matter back to the BOP on or about June 30, 2009. The BOP then resumed its internal disciplinary proceedings against Mr. Tuttamore.
Mr. Tuttamore's case was heard by a BOP Hearing Officer on July 7, 2009. Mr. Tuttamore waived his right to call witnesses or to testify himself, choosing, rather, to rely on a four-page written statement, supplemented by a one-page written statement that he had given previously to the BOP investigators. Mr. Tuttamore denied any knowledge of the razor blade, denied that he could open the intercom box in which the razor was found, and alleged that the detailsof the charge against him (i.e., that there was a magnet attached to the nonmagnetic intercom box) had been fabricated by BOP personnel, in retaliation for Mr. Tuttamore's involvement in another lawsuit against prison officials.
The Hearing Officer found the BOP witnesses were more credible, so he rejected Mr. Tuttamore's arguments and found Mr. Tuttamore guilty of the charge against him. Accordingly, as punishment, the BOP disallowed forty-one days of earned good time credits, and Mr. Tuttamore was required to serve sixty days in disciplinary segregation. Additionally, he lost certain privileges.
In his habeas petition before the district court, Mr. Tuttamore argued that the disciplinary proceedings violated his constitutional rights in five ways: (1) he was deprived of Due Process, in that he was refused the opportunity to obtain and present exculpatory evidence (the magnet, intercom box and the razor blade); he was denied Due Process in that the "proper appeal remedies" were not followed, although he did not clearly explain exactly what "appeal remedies" he claims were not followed; (3) the BOP failed to comply with various provisions of 28 C.F.R. § 541 governing inmate discipline; (4) the Hearing Officer's finding of guilt stemmed from "vindictiveness to retaliate" against him; and (5) there was insufficient evidence...
To continue reading
Request your trial