Nakagawa v. No Named Respondent, (10th Cir. 2007)

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UNITED

STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

In re:

CARL ALLEN NAKAGAWA,

Petitioner.

NO NAMED RESPONDENT,

Respondent.

No.
name="1">06-1473

(D.C. No. 06-CV-1189-ZLW)

(D. Colo.)

ORDER AND JUDGMENT
name="txt*">(*)

Before McCONNELL, PORFILIO, and

BALDOCK, Circuit Judges.

Petitioner Carl Allen Nakagawa, proceeding pro se, appeals the order and

judgment of dismissal entered by the district court dismissing his amended

complaint without prejudice for failure to comply with the pleading requirements

of Fed. R. Civ. P. 8(a) and 10(a). Because Mr. Nakagawa has failed to allege

sufficient facts to show the existence of an actual case or controversy, we dismiss

this appeal for lack of subject matter jurisdiction, and remand with instructions to

the district court to vacate its prior dismissal order and dismiss Mr. Nakagawa's

amended complaint without prejudice for lack of subject matter jurisdiction.

As noted by the district court, "Mr. Nakagawa's liberally construed

amended complaint is vague and, for the most part, unintelligible," R., Doc. 24 at

3, and he has utterly failed to meet his "burden of alleging sufficient facts on

which a recognized legal claim could be based," Hall v. Bellmon, 935 F.2d 1106,

1110 (10th Cir. 1991). We also agree with the district court that Mr. Nakagawa

failed to comply with the pleading requirements of Fed. R. Civ. P. 8(a) and 10(a).

As the district court explained:

The amended complaint does not include a short and plain

statement of the grounds upon which the Court's jurisdiction

depends. See Fed. R. Civ. P. 8(a)(1). The amended complaint

does

not include a short and plain statement of his claims showing that he

is entitled to relief in this action. See Fed. R. Civ. P. 8(a)(2). The

amended complaint does not include a demand for the relief

Mr. Nakagawa seeks. See Fed. R. Civ. P. 8(a)(3). The

amended

complaint also fails to include in the caption to the amended

complaint the parties he is suing. See Fed. R. Civ. P. 10(a).

R., Doc. 24 at 3.

These pleading deficiencies do not just implicate Rules 8 and 10, however,

as we conclude that Mr. Nakagawa has failed to allege sufficient facts to show

the existence of a justiciable case or controversy. Consequently, the district court

should have dismissed Mr. Nakagawa's amended complaint for lack of subject

matter jurisdiction, and we must likewise dismiss this appeal. See United States

v. Wilson, 244 F.3d 1208, 1213 (10th Cir. 2001) ("Under Article III of the

Constitution, federal courts have subject matter jurisdiction only over 'cases and

controversies.'"); see also Steel Co. v. Citizens for a Better Env't, 523 U.S. 83,

94-95 (1998) ("The requirement that [subject matter] jurisdiction be established

as a threshold matter springs from the nature and limits of the judicial power of

the United States and is inflexible and without exception.") (quotation omitted).

Accordingly, we DISMISS this appeal for lack of subject matter

jurisdiction, and REMAND with instructions to the district court to vacate its

prior dismissal order and dismiss Mr. Nakagawa's amended complaint without

prejudice for lack of subject matter jurisdiction. In addition, because this appeal

is frivolous, we DENY Mr. Nakagawa's motion to pay this court's filing and

docketing fees in partial payments; we VACATE the prior order entered by this

court on January 24, 2007, assessing partial payments from Mr. Nakagawa's

prison account; and we ORDER Mr. Nakagawa to immediately pay the full

appellate filing and docketing fees. Finally, we DENY Mr. Nakagawa's petition

for hearing en banc.

Entered for the Court

John C. Porfilio

Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. After examining the briefs and appellate

record, this panel has determined

unanimously that oral argument would not materially assist 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. This order and judgment is

not binding precedent, except under the doctrines of law of the case, res judicata,

and collateral estoppel. It may be cited, however, for its persuasive value

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

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