Unpublished Disposition, 893 F.2d 1338 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 893 F.2d 1338 (9th Cir. 1987)

Don Edgar BURRIS, individually and as Government employeeand as Administrative Law Judge for SocialSecurity Administration, Department ofHealth and Human Services,Plaintiff-Appellant,v.Robert D. HIARING, individually and as an Administrative LawJudge, Department of Health and Human Services; Margaret M.Heckler, individually and as Secretary of Department ofHealth and Human Services; Martha McSteen, individually andas Acting Commissioner, Department of Health and HumanServices; Frank Smith, III, individually and as AssociateCommissioner, Department of Health and Human Services; PaulRosenthal, individually and as Chief Administrative LawJudge for Department of Health and Human Services, et al.,Defendants-Appellees.

No. 89-35128.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 6, 1989.* Decided Jan. 11, 1989.

Appeal from the United States District Court for the District of Montana; James F. Battin, Chief Judge, Presiding.

Before WALLACE, PREGERSON and NELSON, Circuit Judges.


MEMORANDUM

Burris appeals pro se from the district court's dismissal of his action with prejudice for violations of Fed. R. Civ. P. 8 and 41(b). We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

"A district court's dismissal pursuant to rule 41(b) will be overturned on appeal only if the district court abused its discretion." Nevijel v. North Coast Life Insurance Co., 651 F.2d 671, 674 (9th Cir. 1981) (Nevijel) .

Fed. R. Civ. P. 8(a) states that " [a] pleading which sets forth a claim for relief ... shall contain ... a short and plain statement of the claim showing that the pleader is entitled to relief." Rule 8(e) (1) requires that " [e]ach averment of a pleading shall be simple, concise, and direct." Fed. R. Civ. P. 41(b) provides that an action may be dismissed " [f]or failure of the plaintiff ... to comply with these rules or any order of court." If a complaint fails to comply with Rule 8(a) and 8(e), the action may be dismissed with prejudice pursuant to Rule 41(b). Nevijel, 651 F.2d at 673.

We agree with the district court that Burris has failed to provide "a short and plain statement of the claim," Fed. R. Civ. P. 8(a), which is "simple, concise, and direct." Fed. R. Civ. P. 8(e). Burris's complaint was aptly characterized as "verbose, ambiguous, and conclusory." Moreover, it is apparent that Burris made virtually no constructive changes following the district court's order of November 14, 1987. Given the court's extended discussion with Burris at the status conference as to Rule 8 and its requirements, we cannot see this as other than a "failure ... to comply with ... [an] order of court." Fed. R. Civ. P. 41(b). Under the circumstances we cannot say that the district court abused its discretion in dismissing the action. See Nevijel, 651 F.2d at 673-74.

Nevijel contains parallel facts. There, the district court allowed plaintiff 10 days to amend after informing him of a perceived failure to comply with Rule 8. Although the plaintiff substantially reduced the length of his pleading--from 71 to 47 pages--the court found that it was "equally as verbose, confusing and conclusory as the initial complaint." Id. at 673-74. Plaintiff requested an additional opportunity to amend, but the district court denied the request and dismissed the action with prejudice. On appeal, we held that the district judge had sufficiently explored alternative measures by granting an opportunity to amend, and found the dismissal appropriate. Similarly, in this case, the district judge gave Burris ample opportunity to bring his complaint into compliance with Rule 8, and dismissed only after Burris failed to take any appreciable action. As in Nevijel, we find nothing precipitous in the district court's dismissal.

We need not reach Burris's argument that the district court should have read his pleading more liberally because, although he is a lawyer, he was proceeding pro se. Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987). Even accepting this test, we would not overturn the ruling of the district court.

AFFIRMED.

Note: This disposition is not appropriate for publication and may not be cited to or by the Courts of this Circuit except as provided by Ninth Circuit Rule 36-3.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4