Unpublished Disposition, 934 F.2d 325 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 934 F.2d 325 (9th Cir. 1991)

John E. WOLFGRAM, Plaintiff-Appellant,v.EL DORADO COUNTY, et al., Defendants-Appellees.

No. 90-15820.

United States Court of Appeals, Ninth Circuit.

Submitted May 29, 1991.* Decided May 31, 1991.

Before HUG, KOZINSKI and LEAVY, Circuit Judges.


John Wolfgram, an attorney appearing pro se, appeals the district court's dismissal of his complaint with prejudice pursuant to Fed. R. Civ. P. 41(b). We have jurisdiction pursuant to 28 U.S.C. § 1291. We review for an abuse of discretion, Hernandez v. Whiting, 881 F.2d 768, 770 (9th Cir. 1989), and we affirm.

In the district court, Wolfgram filed a 43 page complaint with approximately 85 pages of exhibits attached. It appears to be an attempt at bringing a class action, with Wolfgram as both a member of the class and as the class representative. In the complaint he named 21 defendants, including the Superior Court of El Dorado County, a municipal court, numerous judges, district attorneys, public defenders, a sheriff, and several sheriff's deputies, and appears to allege violations of 18 U.S.C. 1961, et seq. (RICO), 42 U.S.C. §§ 1983 and 1985, and the United States Constitution.

Upon motion by the Superior Court of El Dorado County, Wolfgram's complaint was dismissed pursuant to Fed. R. Civ. P. 8 and 12(b) (6). Wolfgram was given 10 days to file an amended complaint and was advised that his failure to do so would result in a dismissal of the complaint with prejudice. Wolfgram failed to file an amended complaint and the district court entered judgment against him. Wolfgram timely appeals.

A pleading must contain a short, plain statement of the claim showing the pleader is entitled to relief. Fed. R. Civ. P. 8(a); Sparling v. Hoffman Constr. Co., Inc., 864 F.2d 635, 640 (9th Cir. 1988). Even if the factual elements of the cause of action are present but are scattered throughout the complaint and are not organized into a "short and plain statement of the claim," dismissal for failure to satisfy Rule 8(a) (2) is proper. Id.

A complaint that fails to comply with rules 8(a) and 8(e) may be dismissed with prejudice pursuant to Fed. R. Civ. P. 41(b). Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981). Dismissal is a harsh remedy, however, and we must look to see "whether the district court might have adopted other less drastic alternatives." Id. at 674.

Wolfgram's pleading does not meet the requirements of Rule 8. The complaint is verbose and confusing, and there is no plain or concise statement of the causes of action. Moreover, the pleading gives no notice to defendants of what they must defend against because it fails to associate many of the facts or allegations with any specific defendant. Wolfgram was given leave to amend his complaint and failed to do so. Thus, the district court did not abuse its discretion in dismissing the complaint with prejudice pursuant to Fed. R. Civ. P. 41(b). See Nevijel, 651 F.2d at 673.

Wolfgram contends that Judge Garcia erred in failing to recuse himself from this action because he is biased against Wolfgram. Section 455 of Title 28 of the United States Code provides that a judge shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned, or where he has a personal bias or prejudice concerning a party. See 28 U.S.C. § 455(a) & (b). Even assuming, without deciding, that Judge Garcia's impartiality might reasonably be questioned, there is no reversible error here because no other judge could have reached any other decision in this case. See United States v. Van Griffin, 874 F.2d 634, 637 (9th Cir. 1989) (applying harmless error rule to violation of sections 455(a) & (b)); see also Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 862 (1988) (applying harmless error rule to violation of section 455(a)). The district court's dismissal of Wolfgram's complaint clearly was correct.



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4. Accordingly, Wolfgram's request for oral argument is denied


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3