                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                    UNITED STATES COURT OF APPEALS                   July 1, 2014
                                                                Elisabeth A. Shumaker
                                 TENTH CIRCUIT                      Clerk of Court



 JOHN McNAMARA,

              Plaintiff - Appellant,

 v.                                                     No. 13-1534
                                             (D.C. No. 13-CV-01117-MSK-BNB)
 GEORGE BRAUCHLER;                                      (D. of Colo.)
 CHRISTOPHER OPFER; FRANCINE
 GONZALEZ; MITCHELL
 MORRISEY; C. STEPHEN HOOPER;
 JOHN GLEASON; WILLIAM
 ROBERT LUCERO; APRIL
 McMURREY; MONICA GOMEZ; and
 LAWRENCE BOWLING,

              Defendants - Appellees.


                           ORDER AND JUDGMENT *


Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges. **


      John McNamara initiated an action in federal district court against

numerous state officials, alleging violations of his constitutional rights in

      *
         This order and judgment is not binding precedent except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
connection with attorney disciplinary proceedings brought against him by the

Office of Attorney Regulation Counsel (OARC), an administrative body

appointed by the Colorado Supreme Court. After rejecting McNamara’s initial

complaint, the United States magistrate judge recommended that McNamara’s

amended complaint be dismissed with prejudice because it did not contain “a

short and plain statement” of the claim or a demand for relief, as required by Rule

8 of the Federal Rules of Civil Procedure, and as a sanction for McNamara’s

failure to follow court orders. The district court adopted the magistrate judge’s

recommendation, dismissing the complaint with prejudice. Exercising

jurisdiction under 28 U.S.C. § 1291, we AFFIRM.

      The OARC brought a disciplinary prosecution against McNamara for his

failure to pay court-ordered spousal and child support. The presiding disciplinary

judge suspended McNamara’s law license for three months. McNamara appealed

the decision to the Colorado Supreme Court, which dismissed the appeal.

      McNamara sought redress in federal court. His initial complaint contained

169 pages and covered a wide variety of unrelated subjects—including an alleged

conspiracy among Colorado judges and district attorneys to prevent litigants from

obtaining discoverable material, complaints about the prosecution and

adjudication of his traffic tickets, and allegations that he was being improperly

investigated and prosecuted by the state bar’s Attorney Regulation Counsel. The

magistrate judge found that the complaint “includes inappropriate legal and

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factual arguments, conclusory allegations of wrongdoing, irrelevant and

immaterial statements, and ad hominem attacks against the defendants and

others.” R. at 10. The judge further held that, because the complaint fails to

articulate precisely McNamara’s claims or identify the actions or inactions of

each defendant, the complaint “utterly fails to provide notice of the plaintiff’s

causes of action as required by Rule 8.” Id. at 11. He ordered McNamara to

submit an amended complaint along with instructions to help McNamara avoid

having his complaint dismissed. Specifically, the judge instructed McNamara to

state separately each claim, identify the defendant against whom the claim is

brought, and avoid conclusory allegations, irrelevant statements, and ad hominem

attacks.

      McNamara subsequently tendered his amended complaint, which was 132

pages in length and riddled with the same problems as the initial complaint. After

McNamara responded to an order to show cause, the magistrate judge

recommended that McNamara’s complaint be dismissed for failure to comply with

the Federal Rules of Civil Procedure, local court rules, and the judge’s orders.

McNamara objected to the recommendation, and the district court conducted a de

novo review of the magistrate judge’s recommendation. The court overruled

McNamara’s objections and dismissed his claims with prejudice.




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      On appeal, McNamara argues the district court should not have dismissed

his complaint as a sanction and that his complaint complied with the pleading

requirements of Rule 8. 1

      We review a district court’s decision to impose the sanction of dismissal

for abuse of discretion. Davis v. Miller, 571 F.3d 1058, 1060–61 (10th Cir.

2009). “It is within a court’s discretion to dismiss a case if, after considering all

the relevant factors, it concludes that dismissal alone would satisfy the interests

of justice.” Ehrenhaus v. Reynolds, 965 F.2d 916, 918 (10th Cir. 1992).

Although McNamara proceeds pro se, he is not entitled to have his filings

liberally construed because he is a trained attorney. See Mann v. Boatright, 477

F.3d 1140, 1148 n.4 (10th Cir. 2007). 2




      1
         McNamara also alleges the district court should have accepted his second
amended complaint. Because McNamara did not amend his complaint “as a
matter of course” within 21 days of serving the initial complaint nor obtain the
court’s leave to file a second amended complaint, the court was not required to
accept his second amended complaint. See Fed. R. Civ. P. 15(a). McNamara also
takes issue with the fact that the district court initially accepted the second
amended complaint for filing before revoking its status as “filed.” But, because a
court may correct its own clerical mistakes, Fed. R. Civ. P. 60(a), there was no
error in the court’s actions.
      2
         Mann and other cases from this circuit concern licensed attorneys
proceeding pro se. Of course, McNamara is no longer a licensed attorney, as he
was disbarred in 2013. Nevertheless, the purpose behind affording a liberal
construction to pro se filings—which is to assure adequate review of claims
brought by non-legally trained individuals—would not be furthered by construing
McNamara’s filings liberally. We see no reason to hold McNamara to a less
stringent standard than other legally trained individuals.

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       Before choosing dismissal as a sanction, a court must consider several

factors, including

              (1) the degree of actual prejudice to the defendant; (2)
              the amount of interference with the judicial process; (3)
              the culpability of the litigant; (4) whether the court
              warned the party in advance that dismissal of the action
              would be a likely sanction for noncompliance; and (5)
              the efficacy of lesser sanctions.

Ehrenhaus, 965 F.2d at 921 (alterations and citations omitted). “These factors do

not constitute a rigid test; rather, they represent criteria for the district court to

consider prior to imposing dismissal as a sanction.” Id.

       After reviewing the record, we conclude that the district court did not abuse

its discretion in dismissing the complaint. As to the first factor, we find that

McNamara’s failure to comply with Rule 8 of the Federal Rules of Civil

Procedure—which requires a “short and plain statement” of the plaintiff’s

claim—actually prejudiced the defendants. The purpose behind Rule 8 is to “give

the defendant fair notice of what the plaintiff’s claim is and the grounds upon

which it rests.” Leatherman v. Tarrant Cnty. Narcotics Intelligence &

Coordination Unit, 507 U.S. 163, 168 (1993) (internal quotation marks omitted).

“It is not the role of either the court or the defendant to sort through a lengthy,

poorly drafted complaint and voluminous exhibits in order to construct plaintiff’s

causes of action.” See Schupper v. Edie, 193 F. App’x 744, 746 (10th Cir. 2006).

We agree with the district court that the amended complaint contains much


                                            -5-
“distracting and irrelevant detail” and “would force the Defendants to carefully

comb through more than a hundred pages to ascertain which of the several

hundred paragraphs contain pertinent allegations to which a response is

warranted.” R. at 1001.

      We agree that the remaining Ehrenhaus factors favor sanctioning

McNamara by dismissing his complaint. McNamara’s submission of an amended

complaint in violation of the applicable procedural and court rules and the

magistrate judge’s direct orders interfered with the judicial process. McNamara’s

submission of a 132-page amended complaint that contained the same problems

cited by the magistrate judge also demonstrates that McNamara did not make a

good faith attempt to comply with the magistrate judge’s order. Further, the

magistrate judge warned McNamara on two occasions that failure to comply with

his orders would result in dismissal. Finally, the magistrate judge attempted to

assist McNamara in complying with pleading requirements and court rules before

recommending dismissal as a sanction. McNamara does not ask for a lesser

sanction, and we see no abuse of discretion in sanctioning McNamara by

dismissing this action.

      We AFFIRM the district court’s denial of McNamara’s objections and the




                                        -6-
dismissal of his complaint with prejudice. We DENY McNamara’s request to

proceed in forma pauperis.


                                   ENTERED FOR THE COURT,

                                   Per Curiam




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