                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                        August 31, 2006
                            FO R TH E TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                          Clerk of Court

    ELIZABETH STEINER,

                Plaintiff-Appellant,

    v.                                                    No. 05-1496
                                               (D.C. No. 03-CV -2293-EW N-OES)
    CONCENTRA INC., also known as                          (D . Colo.)
    Concentra, also known as Concentra
    M edical Centers,

                Defendant-Appellee.



                             OR D ER AND JUDGM ENT *


Before HA RTZ, A ND ER SO N, and TYM KOVICH, Circuit Judges.




         Elizabeth Steiner, proceeding pro se, appeals from the district court’s

dismissal of her case against her former employer, Concentra Inc., and various

other individuals and business entities. She argues that in entering a dismissal

with prejudice as a sanction for her repeated defiance of court orders, the district


*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
court committed various errors of law and also demonstrated a general bias

against pro se litigants. W e have jurisdiction under 28 U.S.C. § 1291 and affirm.

                                    Background

      From July 2000 to November 2002, Dr. Steiner, a Colorado physician, was

employed by Concentra Inc., a medical-care provider that contracts w ith corporate

customers to deliver medical services to the customers’ employees. During

her tenure with Concentra, Dr. Steiner perceived ethical problems in the

Concentra-customer relationships; deficiencies in the treatment of patients;

illegalities in the release of patients’ medical records to customers; racial, ethnic,

age, and gender discrimination against Concentra employees; and the existence of

mold in a D enver clinic. She expressed her concerns to Concentra managers,

colleagues, patients, patients’ family members, and customers.

      Dr. Steiner was demoted from her position as medical director of a

Concentra clinic and then discharged. She filed with the EEOC claims of

retaliatory and discriminatory discharge. According to Dr. Steiner, she had been

subjected to violations of the A ge D iscrimination in Employment Act (ADEA),

29 U.S.C. §§ 621-634; Title VII of the C ivil Rights Act of 1964 (“Title VII”),

42 U.S.C. §§ 2000e to 2000e-16c; and the Family M edical Leave A ct (FM LA),

29 U.S.C. §§ 2612-19.

      On November 17, 2003, Dr. Steiner brought this suit in federal court, filing

a 29-page complaint naming 17 defendants: Concentra, individual Concentra

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administrators, two customer corporations, and individual customer managers.

The complaint alleged claims of wrongful discharge in violation of public policy,

relying on provisions of the Colorado W orkers’ Compensation Act, Colo. Rev.

Stat. § 8-40-101 to § 8-47-209 and the Health Insurance Portability and

Accountability Act of 1996 (HIPAA), 42 U.S.C. §§ 1320d-5 to d-6; discharge in

violation of the ADEA; intentional infliction of emotional distress; civil

conspiracy; and breach of contract. She also expressed her intent to file an

amended complaint adding Title VII and FM LA claims. It was D r. Steiner’s

belief that “these claims could not be written into the complaint at the time of the

filing of the original complaint because the EEOC process has a different

timetable for their deadlines.” R., Doc. 64 at 1. Defendants filed motions to

dismiss on various grounds.

      The matter was referred to a magistrate judge under 28 U.S.C. § 636(b).

At an initial scheduling conference the magistrate judge reflected on the difficulty

of proceeding pro se in an employment case and commented that his preliminary

review of the complaint suggested that several defendants should be dismissed.

Dr. Steiner took offense at the magistrate judge’s remarks and filed a motion for

recusal of the magistrate judge.

      In M ay 2004 the EEOC issued a right-to-sue letter on Dr. Steiner’s Title

VII charge. Dr. Steiner moved to amend her complaint to add Title VII and

FM LA claims and also to “correct any perceived deficiencies in the pleadings,”

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but she did not tender a proposed complaint. R., Doc. 64 at 4. On August 6 the

magistrate judge recommended dismissing all parties except Concentra and

granting Dr. Steiner permission to file an amended complaint solely against

Concentra realleging her age-discrimination claim. If Dr. Steiner wished to

amend the complaint further to present any new claim encompassed by a

right-to-sue-letter, she was to file an appropriate motion to amend, accompanied

by a tendered complaint. In a separate order the magistrate judge denied the

recusal motion.

      Concerned about meeting the 90-day filing deadline triggered by the

right-to-sue letter, Dr. Steiner tendered a lengthy amended complaint before she

received copies of the magistrate judge’s rulings. Also, when she received the

August 6 recommendation, she filed her objections. These filings began

Dr. Steiner’s pattern of attaching a multiplicity of exhibits to her submissions,

such as excerpts from the records of other cases against Concentra, e-mails from

workers’ compensation officials, affidavits from former Concentra employees,

and printouts from presentations on H IPAA privacy provisions.

      The magistrate judge struck the amended complaint as improper because

his recommendation was still pending before the district court. Dr. Steiner

objected to this result. On September 17, 2004, the district court adopted the

magistrate judge’s recommendation to dismiss all defendants other than




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Concentra. 1 The court also granted her 11 days to file an amended complaint in

compliance with the magistrate judge’s proposed restrictions.

       Dr. Steiner did not accede to the district court’s order. Instead, she

petitioned this court for relief in the nature of mandamus. After this court denied

her petition, she attempted to file an appeal. Because her case had not been fully

adjudicated, this court directed her to the district court for certification of an

appeal for immediate disposition, in accordance with Fed. R. Civ. P. 54(b).

       The district court denied Dr. Steiner’s request for Rule 54(b) certification

and her alternative motion for reconsideration of its earlier order. Noting that

Dr. Steiner “ha[d] done nothing which was ordered” and that she was tying the

“case in more and more procedural knots,” R., Doc. 97 at 1-2, the district court

again ordered Dr. Steiner to file an amended complaint in conformity with its

previous decision. It warned her that “[if] she fail[ed] to do so” within an

additional 11 days, it would “dismiss what remains of [her] case, with prejudice.”

Id. at 2.

       Dr. Steiner filed her second amended complaint within the district court’s

time frame but outside the bounds of its instructions. The complaint named the

original array of defendants (minus one individual customer manager, plus



1
       In adopting the magistrate judge’s recommendation, the district court
dismissed one of these defendants under Fed. R. Civ. P. 12(b)(2) for lack of
personal jurisdiction. The others were dismissed under Fed. R. Civ. P. 12(b)(6)
for failure to state a claim upon which relief can be granted.

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another Concentra-affiliated entity). She expanded the introductory section,

rearranged all her previous claims, added Title VII and FM LA claims, and

incorporated 55 pages of attached exhibits. Concentra filed a motion to strike or

dismiss the complaint.

      At the hearing on the motion, the magistrate judge struck the second

amended complaint for failure to comply with previous court orders. He gave

D r. Steiner one more opportunity to file a short and plain complaint. He

specifically instructed her to name only Concentra as a defendant and to make

only two claims, age discrimination and wrongful termination in violation of

public policy (which is how she couched her AD EA, Title VII, and FM LA

retaliation claims). The magistrate judge also told her not to file any exhibits

except the EEOC’s notice of right to sue. During the course of the hearing, the

magistrate judge again advised Dr. Steiner to retain an attorney.

      Two weeks later Dr. Steiner filed a “M otion Directed to the Judge Only to

Reconsider the M agistrate’s Order Striking the Plaintiff’s Second Amended

Complaint with New M aterial Presented.” R., Doc. 112. Along with numerous

other exhibits, she attached a proposed third amended complaint. That document

stated that she “hereby incorporates, references and retains, into this . . .

absolutely every w ord, num bered and unnum bered paragraph, claim, prayer

for relief, and Exhibit in her Second Am ended Complaint.” Id. (unnumbered

and untabbed exhibit).

                                         -6-
       The district court promptly ruled on Dr. Steiner’s filing. Stating that

“[t]his is a case where enough is enough,” that “[p]laintiff did nothing which

was ordered,” and that the second amended complaint was “flagrant” in its

“non-compliance with previous orders of the court,” the court dismissed the

case with prejudice. Id., Doc. 115 at 1-2. As the district court put it,

       [Dr. Steiner] has vexatiously and frivolously multiplied the
       proceedings. Her actions have prejudiced the defendant by causing
       delay and significant attorney fees. She has interfered with and
       delayed the judicial process and caused needless expenditure of
       judicial resources. Her actions have been willful, intentional,
       persistent, and contemptuous. She has been warned. The ultimate
       sanction of dismissal with prejudice is merited.

Id. at 2-3.

                                     Discussion

       Dr. Steiner now appeals the dismissal of her case against Concentra. 2

Although she raises arguments on the merits of her HIPA A and FM LA claims, the

dispositive issue is whether the district court properly imposed dismissal as a

sanction for her disregard of court orders.



2
       In the statement of issues in her principal appellate brief, Dr. Steiner
concentrates on Concentra’s liability and makes no mention of the defendants
dismissed in the district court’s order of September 17, 2004. Her reply brief
refers to four of these defendants in connection with “HIPA A and [her] claim for
wrongful d[is]charge in violation against this public policy.” Reply Br. at 10.
W e will not address issues raised for the first time in a reply brief. See Stump v.
Gates, 211 F.3d 527, 533 (10th Cir. 2000) (stating reasons why “[t]his court does
not ordinarily review issues raised for the first time in a reply brief”).



                                          -7-
      A district court may dismiss a case for failure “to comply with [the Federal

Rules of Civil Procedure] or any order of court,” and the dismissal “operates as

an adjudication upon the merits.” Fed. R. Civ. P. 41(b).

      But dismissal or other final disposition of a party’s claim is a severe
      sanction reserved for the extreme case, and is only appropriate w here
      a lesser sanction would not serve the ends of justice. In applying
      such a sanction, the district court must consider: (1) the degree of
      actual prejudice to the opposing party; (2) the amount of interference
      with the judicial process; and (3) the culpability of the litigant. Only
      when these aggravating factors outweigh the judicial system’s strong
      predisposition to resolve cases on their merits is outright dismissal
      with prejudice an appropriate sanction.

Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002) (internal citations,

quotation marks, and alterations omitted). If “a party appears pro se, the court

should carefully assess whether it might appropriately impose some sanction other

than dismissal, so that the party does not unknowingly lose its right of access to

the courts because of a technical violation.” Id.

      The above “analysis is highly fact specific,” so the district court “is in a far

better position than this Court” to conduct it. Id. at 1196. This court reviews

dismissals under Rule 41(b) for abuse of discretion. See Gripe v. City of Enid,

312 F.3d 1184, 1188 (10th Cir. 2002).

      In evaluating Dr. Steiner’s claims against Concentra, the district court

discussed and applied the three listed factors. It concluded that, even after she

was warned, Dr. Steiner took willful and contemptuous actions that prejudiced

Concentra by causing delay and needless expense, and she also interfered with the

                                          -8-
judicial process. Our review of the record confirms the district court’s

conclusions. Dr. Steiner repeatedly refused to comply with clear court orders to

eliminate a multiplicity of claims, extra parties, excess verbiage, and irrelevant

exhibits. She also delayed and disrupted the judicial process by twice

inappropriately seeking interlocutory relief from this court. Dr. Steiner’s pro se

status does not excuse this type of conduct. See Ogden v. San Juan County, 32

F.3d 452, 455 (10th Cir. 1994) (pro se litigants must comply “with the

fundamental requirements of the Federal Rules of Civil and Appellate

Procedure”).

      W e also note that nothing in the record suggests any basis for questioning

the magistrate judge’s impartiality. In recommending consultation with an

attorney experienced in employment law , the magistrate judge was simply

providing prudent advice.

      The district court did not abuse its discretion in dismissing Dr. Steiner’s

case. A FFIR ME D.

                                                     Entered for the Court



                                                     Harris L Hartz
                                                     Circuit Judge




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