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Desimund Star v. Wally George, 95-1739 (1996)

Court: Court of Appeals for the Eighth Circuit Number: 95-1739 Visitors: 9
Filed: May 09, 1996
Latest Update: Mar. 02, 2020
Summary: _ No. 95-1739 _ Desimund Star, * * Appellant, * * Appeal from the United States v. * District Court for the * Western District of Missouri. Wally George, Sheriff; Brad * [UNPUBLISHED] O'Neal; Brad McLaughlin; * Bill Smith; Eva Workoff; * Marshall Ambulance Department, * * Appellees. * _ Submitted: January 12, 1996 Filed: May 9, 1996 _ Before WOLLMAN, ROSS, and MURPHY, Circuit Judges. _ PER CURIAM. This is an appeal from an order dismissing Desimund Star's pro se complaint filed under 42 U.S.C. §
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                                     ___________

                                     No. 95-1739
                                     ___________

Desimund Star,                      *
                                    *
           Appellant,               *
                                    *    Appeal from the United States
      v.                            *    District Court for the
                                    *    Western District of Missouri.
Wally George, Sheriff; Brad         *          [UNPUBLISHED]
O'Neal; Brad McLaughlin;            *
Bill Smith; Eva Workoff;            *
Marshall Ambulance Department,      *
                                    *
           Appellees.               *
                               ___________

                      Submitted:       January 12, 1996

                            Filed:   May 9, 1996
                                     ___________

Before WOLLMAN, ROSS, and MURPHY, Circuit Judges.
                               ___________


PER CURIAM.


        This is an appeal from an order dismissing Desimund Star's pro se
complaint filed under 42 U.S.C. § 1983.              We affirm.


        Star's   initial   complaint    was    filed   on   September     7,    1994.    It
consisted of a lengthy handwritten document that alleged in great detail
Star's complaints about the shortcomings he perceived in the Western
Missouri    Correctional     Center,     Cameron,      Missouri,     in   which    he   was
incarcerated.     Star's allegation included, among other things, complaints
about    unsanitary    conditions,      lack    of    medical     care,   and    religious
discrimination (Star is a Muslim).
       The district court1 granted Star in forma pauperis status, but ruled
that   Star's    complaint,    which    the   court   characterized    as    "rambling,
disjointed, and sometimes illegible," should be filed on an approved 42
U.S.C. § 1983 form and ordered Star to make a "short and plain statement"
of his claim, as required by Federal Rule of Civil Procedure 8(a)(2).


       On October 12, 1994, Star filed three separate amended complaints on
approved section 1983 forms (why he filed three complaints, we do not
know).      In an apparent attempt to clear up this confusion, the defendants,
staff members at the correctional center, filed a motion on November 11,
1994, asking for a more definite statement and seeking clarification as to
which of the three amended complaints they were to respond.                  On November
18, 1994, the district court granted the motion and ordered Star to "file
a single amended complaint" (emphasis in original) on forms provided by the
court.


       On    December   19,   1994,    Star   filed   a   second   amended   complaint,
utilizing a court-supplied form.          Star's statement of claim was short:


       No law library, deprivation thereof of access by Bill Smith,
       Brad "O" Neal, and deprivation of medical attention by Brad
       McLaughlin, failed too [sic] take me too [sic] see the doctor,
       no medical staff in Jail, deprivation of religious belief by
       Eva Workoff, Bill Smith, not substituting pork, and by Sheriff
       Wally George also Sheriff Wally George wouldn't allow me too
       [sic] access to religious services, unsanitation [sic].


       On December 22, 1994, the district court dismissed the case without
prejudice, ruling that Star's bare assertions were broad and conclusory
statements unsupported by factual allegations and




       1
     The Honorable Joseph E. Stevens, United States District Judge
for the Western District of Missouri.

                                          -2-
were insufficient to support a cause of action under section 1983.


        Following the district court's denial of Star's request that he be
allowed to appeal in forma pauperis, we appointed counsel to represent
Star.


        On appeal, Star contends that the district court's rulings were
contradictory, in that the court first ordered him to strip his complaint
of factual detail and then dismissed the complaint      because it contained
too little by way of factual detail.


        Having reviewed Star's initial complaint, we can understand why the
district court characterized it as it did, for indeed it is "rambling,
disjointed, and sometimes illegible."      Nevertheless, it does contain the
seeds of what might very well be a meritorious (at least arguably so)
section 1983 complaint.     We do not know whether Star's second amended
complaint represented a good faith effort to comply with the district
court's November 18, 1994, order or an insolent challenge to the district
court's authority.   Whichever the case, we hold that because its dismissal
of the action was without prejudice to the filing of a new complaint, the
district court did not abuse its discretion in dismissing the second
amended complaint.   See Edgington v. Missouri Dep't of Corrections, 
52 F.3d 777
(8th Cir. 1995).   Had the dismissal been with prejudice, we might very
well have held that the second amended complaint, sketchy as it was, was
specific enough to state a cause of action under the liberal construction
of pro se complaints mandated by Haines v. Kerner, 
404 U.S. 519
(1972).


        We are confident that if he pursues his claim in good faith, Star
will be able to cull from the broad allegations of his initial complaint
the specific allegations necessary to state a cause of action under section
1983.




                                     -3-
     The    district   court's   order    of   dismissal   without   prejudice   is
affirmed.


     A true copy.


            Attest:


                  CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                         -4-

Source:  CourtListener

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