                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                      January 26, 2009
                                 TENTH CIRCUIT
                            __________________________              Elisabeth A. Shumaker
                                                                        Clerk of Court

 MELODY RAMSEY,

          Plaintiff - Appellant,

 v.                                                      No. 08-1202
                                                          (D. Colo.)
 JAMES B. PEAKE, Secretary of              (D.Ct. No. 1:07-CV-02612-WYD-KLM)
 Veteran Affairs, and John & Jane
 Does 1-25,

          Defendant - Appellee.
                         ____________________________

                              ORDER AND JUDGMENT *


Before O’BRIEN, EBEL, and GORSUCH, Circuit Judges.



      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. 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          This order and judgment is not binding precedent except under the doctrines of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.
       Melody Ramsey, pro se, 1 brought a Title VII complaint against the

Secretary of Veterans Affairs and twenty-five unnamed defendants. 2 Her

complaint alleged not only discrimination based on race, sex, national origin,

religion, and age, but a multitude of other perceived improprieties. Over

Ramsey’s objection, the district judge ordered consideration of pretrial matters

and non-dispositive motions by a magistrate judge (magistrate) pursuant to

72.1(c) of the court’s local practice rules. The referral also required the

magistrate to hold hearings and make recommendations for ruling on dispositive

motions.

       After a scheduling conference, the magistrate recommended dismissal of

Ramsey’s claims without prejudice because she refused to comply with pretrial

orders. Ramsey filed a motion for reconsideration, which the magistrate

construed as a motion to alter or amend a judgment under Rule 59(e) of the

Federal Rules of Civil Procedure. The magistrate denied the motion and again

recommended dismissal. The district judge adopted the magistrate’s

       1
        We liberally construe pro se pleadings. Ledbetter v. City of Topeka, Kan., 318
F.3d 1183, 1187 (10th Cir. 2003).
       2
          Ramsey states “Title VII & the ADA & the ADEA (and NEPA for that matter)
are the sloppy acromomal [sic] way the Courts and the US Attorney denominated the
cases.” (Appellant’s Br. at 2.) However, it was Ramsey who filed this action on a “Title
VII Complaint” form. In the federal court system, it is the plaintiff who frames the issues
as she posits a question before the courts. See Caterpillar, Inc. v. Williams, 482 U.S. 386,
392, 107 S.Ct. 2425 (1987) (“The [well-pleaded complaint] rule makes the plaintiff the
master of the claim. . .”). Ramsey’s use of the form thusly “denominated” the action as
one under Title VII.

                                            -2-
recommendation and, deeming Ramsey’s intransigence to amount to a failure to

prosecute, dismissed the suit without prejudice. 3 Ramsey challenges the dismissal

of her case as well as the magistrate’s 1) appointment, 2) failure to recuse, and 3)

denial of an evidentiary hearing on the issue of her compliance with case

scheduling requirements. We affirm.

                                   I. BACKGROUND
       On January 3, 2008, the magistrate ordered a Scheduling Conference for

February 13, 2008. 4 She directed Ramsey to participate in a meeting with

opposing counsel (an attorney from the United States Attorney’s office) and

prepare a proposed scheduling order no later than 21 days prior to the scheduling

conference, submit initial disclosures under Fed. R. Civ. P. 26(a)(1) no less than

14 days after the meeting with opposing counsel, and submit a proposed

scheduling order no later than five calendar days before the scheduling




       3
          There was no invitation to amend the complaint or otherwise continue the
district court proceedings, making the district court’s dismissal of Ramsey’s “complaint
and action” final and appealable. See Moya v. Schollenbarger, 465 F.3d 444, 448-54
(10th Cir. 2006); see also Amazon, Inc. v. Dirt Camp, Inc., 273 F.3d 1271, 1275 (10th
Cir. 2001) (“Although a dismissal without prejudice is usually not a final decision, where
the dismissal finally disposes of the case so that it is not subject to further proceedings in
federal court, the dismissal is final and appealable.”).
       4
          Although this document does not appear in the record, we have elected to take
judicial notice of this order. Fed. R. Evid. 201; St. Louis Baptist Temple, Inc. v. Fed.
Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir. 1979) (“[A] court may . . . take
judicial notice, whether requested or not . . . of its own records and files, and facts which
are part of its public records.”).

                                             -3-
conference. 5 The order also warned failure to comply with its provisions might

result in sanctions under Rule 16(f)(1) of the Federal Rules of Civil Procedure.

         The parties failed to meet as ordered. Ramsey, who is no stranger to

litigation in federal courts, 6 appeared at the scheduling conference completely

unprepared. For example, she failed to submit her Rule 26(a)(1) initial

disclosures, produce a proposed scheduling order, 7 and provided incoherent

objections to the United States Attorney’s proposed scheduling order. At the

scheduling conference Ramsey failed to proffer a draft schedule to the court and

opposing counsel or provide any evidence of her meaningful participation in the

pretrial process. Instead, she blamed these failures on opposing counsel. Ramsey

requested an evidentiary hearing to present tape recordings of numerous telephone

calls to the United States Attorney’s office, which she alleged documented that

opposing counsel and his staff refused to speak with her and would terminate her



         5
         The order set forth generally the scheduling conference requirements of the
parties enumerated in Fed. R. Civ. P. 26(f) which include the: timing of the conference;
responsibilities of the parties at the conference; and required discovery plan to be
discussed at the conference.
         6
        See generally Ramsey v. Principi, 284 Fed. Appx. 548 (10th Cir. 2008)
(unpublished) (affirming Ramsey v. Principi, 2007 WL 2439338 (D.Colo. Aug. 23, 2007)
(unpublished); Ramsey v. Office of State Eng’r, Dep’t of Natural Res., State of Colo., 986
F.2d 1428, 1993 WL 53120 (10th Cir. 1993) (unpublished); Ramsey v. Office of State
Eng’r, 931 F.2d 63, 1991 WL 59371, (10th Cir. 1991) (unpublished); Ramsey v. City &
County of Denver, 907 F.2d 1004 (10th Cir. 1990).
         7
             D.C.Colo.LCivR 26.1(A) requires plaintiff to draft the proposed scheduling
order.

                                              -4-
calls. 8 Opposing counsel offered a different narrative, telling the magistrate of

his attempts to contact Ramsey reportedly through telephonic and written

communication regarding preparation of a proposed scheduling order. He claimed

Ramsey continually rebuked of his efforts. Ramsey disputed his account.

Undisputed is Ramsey’s direction to the United States Attorney’s office: to only

communicate with her in writing, not by telephone; refusal to speak with the

Assistant United States Attorney assigned to this case; and repeated demands to

speak with his supervisor.

       The scheduling conference was reported. The transcript reveals the

magistrate listened patiently as Ramsey evaded direct questions and improperly

tried to force discussion of issues irrelevant to case scheduling and preparation.

Ramsey failed to heed warnings of possible sanction set forth in the scheduling

order. Her behavior prompted the magistrate to ask whether she knew the

difference between “making efforts to settle [a] claim and conferring with counsel

about documents that [she was] required to file with the court in order to pursue

[her] claim?” (R. Vol. 2 at 11-12.) Ramsey understood but continued to


       8
         As recorded in the transcript, Ramsey digressed from scheduling issues
repeatedly, addressing a combination of similar closed and pending cases in her attempts
to voice frustration with the judicial process. She failed to articulate whether any or all of
the tapes dealt with the scheduling issue at hand or other issues or cases entirely. This is
one of several cases Ramsey has filed involving overlapping issues and “. . . is out of
sequence time wise & therefore prejudiced.” (Appellant's Br. at 4). For purposes of this
appeal, we will assume at least some of the tapes were relevant to these scheduling
proceedings.

                                             -5-
obfuscate, arguing the issues she wished to discuss regarding the merits of her

claim were inseparable from the scheduling issue before the court. Ramsey

requested the magistrate recuse herself three times: by oral motion at the

scheduling conference, immediately following the conference by filing a written

motion, and a later motion to “rereconsider”. The magistrate denied all three

requests.

      The magistrate did not listen to Ramsey’s tape recordings, relying only on

the parties’ presentations in making her decision. In making credibility

assessments, the magistrate evaluated the actors’ presentation, attitude and

demeanor in resolving the conflicting claims regarding unsuccessful attempts to

meet, disclose information, and otherwise prepare for the scheduling conference.

She concluded Ramsey’s account of events was less credible than that of

opposing counsel. Based on Ramsey’s obstinate refusal to abide by procedural

rules and properly participate in litigation planning, the magistrate recommended

dismissal of Ramsey’s claim.

                                II. DISCUSSION

A. Objection to Magistrate Hearing Dispositive Issues

      Ramsey “specifically objected to any magistrate handling any part of her

case and asked specifically that an experienced judge sort thu [sic] [the issues].”

(Appellant’s Br. at 2m.) Irrespective of the court’s assignment order she claims


                                         -6-
her objection precluded the magistrate’s participation. She is mistaken. The

court’s local rules provide, “upon reference by a district judge, a magistrate judge

may . . . hold hearings and make recommendations to the district judge on

dispositive matters.” D.C.Colo.L.Civ.R. 72.1(c)(3). The rules properly

implement the relevant statute permitting assignments to magistrates. 28 U.S.C. §

636(b)(1). Ramsey’s consent was not required and her generalized objections to

the process do not render it infirm.

B. Recusal of Magistrate

      Ramsey requested the magistrate to recuse herself three times, each time

offering only vague assertions of bias and “a pattern and practice of judicial

impropriety” to support her requests. (R. Vol. 1, Doc. 15.) We review the denial

of a motion to recuse for abuse of discretion. United States v. Smith, 997 F.2d

674, 681 (10th Cir.1993). Under that standard we will uphold a district court's

decision unless it is an “arbitrary, capricious, whimsical, or manifestly

unreasonable judgment.” Coletti v. Cudd Pressure Control, 165 F.3d 767, 777

(10th Cir. 1999) (quotation marks omitted).


      28 U.S.C. § 455(a) requires disqualification “in any proceeding in which . .

. [a magistrate’s] impartiality might reasonably be questioned.” The magistrate

determined Ramsey showed no evidence of prejudice, bias, or improper action

warranting recusal. The district judge reviewed the record and agreed. We too


                                         -7-
agree — the magistrate’s impartiality cannot reasonably be questioned. Ramsey

was provided frequent opportunities to demonstrate her good faith participation in

the pretrial scheduling. The magistrate attempted to fully understand Ramsey’s

objections and excuses, granted her significant leeway during the scheduling

conference, and tolerated her repeated diatribes.

C. Failure to Schedule an Evidentiary Hearing

      When a district court adopts the magistrate’s recommendation for dismissal

without holding an evidentiary hearing we review for abuse of discretion. Fed.

Deposit Ins. Corp. v. Daily, 973 F.2d 1525, 1532 (10th Cir. 1992). Abuse of

discretion occurs when a decision is “arbitrary, capricious, whimsical, or results

in a manifestly unreasonable judgment.” United States v. Weidner, 437 F.3d

1023, 1042 (10th Cir. 2006) (quotation omitted).

      The district judge undoubtedly reviewed the transcript of the scheduling

hearing in the two months that elapsed between the hearing and the issuance of

his order and judgment. Relying on the arguments set forth at the scheduling

hearing and through pleadings, the district judge wholly adopted the magistrate’s

recommendation, including the determination an evidentiary hearing regarding

Ramsey’s audio tapes was unnecessary based upon the presentations by the

parties. Our review leads us to conclude his decision was supported by the

record, significantly by Ramsey’s own statements.


                                         -8-
      Regardless of its title, the scheduling conference before the magistrate was

a hearing – it was held in open court and on the record. Ramsey’s alleged failure

to confer as ordered was at some level a factual dispute and audio-tape recordings

may well have been probative if they did indeed evidence the United States

Attorney’s office refusing to confer. 9 A refusal to consider possibly relevant

evidence is always a matter of concern and, had this been a trial, might be

reversible error. However, the district court’s acceptance of the magistrate’s

choice not to request Ramsey to supply the tapes 10 or take sworn testimony at a

scheduling hearing was not necessarily an abuse of discretion.

      Our review for abuse of discretion is deferential. The conflicting

allegations concerning relative fault in failing to cooperate were thoroughly aired.

The magistrate and district court could make the limited, but necessary,

credibility determination from the interchange at the conference coupled with an

assessment of objective facts – Ramsey was not prepared; opposing counsel was –

and attitude – Ramsey was obtuse and combative, repeatedly attempted to

undermine process by pursuing her own agenda. The district court, like the

magistrate, could, and perhaps should, have given more attention to Ramsey’s



      9
         Again, it is imperative to note Ramsey’s own statements indicate the tapes
included any number of issues, one of which may have been refusal to confer by opposing
counsel.
      10
           Ramsey did not have the audio tapes in her possession at the scheduling
hearing.

                                            -9-
recordings, but in this context failure to do so was not an abuse of discretion.

Limited fact finding at a scheduling conference may be sufficiently reliable even

though it was not attended by full adversary processes.

      Under the circumstances the record demonstrates the district court’s

approach was a sufficient substitute for more formal process – it does not suggest

a manifestly unreasonable result. Ultimately, the district court relied on

undisputed facts in determining the pretrial scheduling issue – Ramsey did not

participate in crafting the proposed scheduling order and did not submit one of

her own. The district court’s decision to forego an evidentiary hearing was not

arbitrary, capricious, or whimsical; nor does it result in a manifestly unreasonable

judgment.

D. Dismissal for Failure to Prosecute

      The dismissal of Ramsey’s claim without prejudice was clearly a sanction

for failure to prosecute according to established rules. We review such sanctions

for an abuse of discretion. See United States v. Berney, 713 F.2d 568, 571 (10th

Cir. 1983). Although pro se litigants are held to less stringent standards than

those applicable to licensed attorneys, see Meade v. Grubbs, 841 F.2d 1512, 1526

(10th Cir. 1988), they must nevertheless “‘follow the same rules of procedure that

govern other litigants.’” Okla. Federated Gold & Numismatics, Inc. v. Blodgett,

24 F.3d 136, 139 (10th Cir. 1994) (quoting Green v. Dorrell, 969 F.2d 915, 917


                                         -10-
(10th Cir. 1992)).

       The magistrate correctly applied the five factors used to evaluate grounds

for dismissal. See Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992)

((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 . . .)

(Internal quotations and citations omitted).

       Ramsey was directly and largely responsible for the parties’ failure to reach

agreement on a proposed scheduling order. She caused actual prejudice to the

defendant and the court in refusing to move the case planning process along in an

orderly fashion. She did not prepare a required scheduling order nor respond to

the defendants’ draft. Her refusal was not attended by good cause. The

magistrate’s January 3 scheduling order warned Ramsey of the possibility of

sanctions. 11 Finally, as the magistrate noted, Ramsey’s conduct evidenced a

significant likelihood that only dismissal would properly focus her attention on

11
   The order notified the parties that “Failure to . . . comply with a court-ordered deadline
. . . may result in the imposition of sanctions, under Rule 16(f), Fed.R.Civ.P.”
Fed.R.Civ.P. 16(f) states that the court may issue any just orders, including those
authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney: . . . (B) is substantially
unprepared to participate . . . in the conference; or (C) fails to obey a scheduling or other
pretrial order.” Rule 37(b)(2)(A) allows for orders: “(v) dismissing the action or
proceeding in whole or in part; (vi) rendering a default judgment against the disobedient
party . . . .”

                                              -11-
the need to cooperate in case scheduling.

      We also consider the effect a sanction might have on a recalcitrant

litigant’s ability to present claims or defenses. Dismissal without prejudice is

inconvenient but is not usually the death knell of a plaintiff’s case. Ramsey has

suggested no reason, such as a statute of limitations problem, which would

preclude her from simply starting over, preferably with a better attitude. If she is

willing to abide procedural requirements her claims can proceed in an orderly

fashion to a disposition on the merits.


AFFIRMED.


                                          Entered by the Court:


                                          Terrence L. O’Brien
                                          United States Circuit Judge




                                           -12-
