                                                                 FILED
                                                     United States Court of Appeals
                        UNITED STATES COURT OF APPEALS       Tenth Circuit

                                FOR THE TENTH CIRCUIT          November 4, 2014

                                                              Elisabeth A. Shumaker
                                                                  Clerk of Court
ILANA REINHARDT,

               Plaintiff - Appellant,

v.                                                     No. 14-6052
                                               (D.C. No. 5:11-CV-00979-W)
TERRY LEE HOPPS, individually; THE                    (W.D. Okla.)
STATE OF OKLAHOMA, ex rel.
UNIVERSITY OF OKLAHOMA,

               Defendants - Appellees.

----------------------------------

THE STATE OF OKLAHOMA, ex rel.
THE CLEVELAND COUNTY
DISTRICT COURT; TERRY HOPPS
JEWELRY DESIGNS, domestic
business; JEQUITA H. NAPOLI, Special
Judge, in her individual and official
capacity; THE STATE OF
OKLAHOMA, ex rel. CLEVELAND
COUNTY SHERIFF’S DEPARTMENT;
FRANK ANDREWS, Deputy Sheriff, in
his individual and official capacity;
WANDA PETERSON, Deputy Sheriff, in
her individual and official capacity;
JANE DOE, public servant, in her
official and individual capacity; CITY
OF NORMAN, Municipality, ex rel.
NORMAN POLICE DEPARTMENT;
NORMAN POLICE DEPARTMENT
CALL SERVICE, officer(s) in individual
capacities or 911,

               Defendants.
                            ORDER AND JUDGMENT*


Before KELLY, ANDERSON, and TYMKOVICH, Circuit Judges.


      Ilana Reinhardt, proceeding pro se, appeals the district court’s judgment

against her in her suit against her former landlord, Terry Lee Hopps, and several

other defendants under 42 U.S.C. §§ 1981, 1982, 1983, and 1985; the Fair Housing

Act of 1968 (FHA), id. §§ 3601-31; other federal statutes; and Oklahoma state law.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

      For various reasons, the district court dismissed the claims against all

defendants other than Ms. Hopps. It also dismissed many of the claims against

Ms. Hopps, but it allowed three federal claims (under the FHA, § 1981, and § 1982)

and four state-law claims to proceed toward trial. Later, the court granted summary

judgment to Ms. Hopps on the FHA claim and on the §§ 1981 and 1982 claims to the

extent they were based on religion and sex discrimination, rather than racial

discrimination. That left for trial only a portion of the §§ 1981 and 1982 claims and

the four state-law claims. Trial was set for February 11, 2014.
*
      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.


                                         -2-
      The deadline to file pretrial materials was January 29, 2014. Several days

before the deadline, the court issued an order allowing Ms. Reinhardt to submit her

pretrial materials through e-mail. On January 29, the court granted Ms. Reinhardt’s

request for a one-day extension of time for her filings. On January 30, Ms. Reinhardt

requested a second one-day extension, which the court denied.

      Ms. Hopps moved to dismiss the matter or to strike Ms. Reinhardt’s witnesses

and exhibits for failure to comply with the pretrial deadlines. The court set the

motion for hearing on February 5 at 10:30 a.m. It directed Ms. Reinhardt to submit a

response through e-mail and advised her “that her failure to file a response or her

failure to appear at the hearing may result in confession of the defendant’s motion

and/or dismissal of this action.” R. Vol. 5 at 302. Ms. Reinhardt duly filed a

response, but she did not arrive at the courthouse by 10:30 on February 5 (apparently

she was delayed in transit). After a brief wait, the district court convened the hearing

and granted Ms. Hopps’ motion to dismiss the action. It later issued a written order

memorializing its reasons for entering a dismissal with prejudice.

      On appeal, we apply the liberal construction rule applicable to a pro se

appellant’s brief and identify the following arguments: (1) Ms. Reinhardt was

prejudiced in not receiving accommodations afforded to persons appearing through

counsel, particularly the ability to make filings through the court’s electronic filing

system; (2) the district judge who heard the case and the magistrate judge assigned to

conduct a settlement hearing should have recused themselves; (3) the court erred in


                                          -3-
dismissing the claims set for trial; (4) the court erred in dismissing the § 1983 claim

against Ms. Hopps and in granting summary judgment on the FHA claim; (5) the

court should have stayed the case pending Ms. Reinhardt’s interlocutory appeal of

certain orders; (6) the court should have allowed her to amend her first amended

complaint; and (7) certain witnesses should be required to return their witness-fee

payments to Ms. Reinhardt.1 None of these arguments, however, require reversal of

the district court’s judgment.

1.    Denial of Access to Electronic Filing System

      Ms. Reinhardt complains the court denied her access to the court’s electronic

filing system. The district court generally does not allow pro se parties to use this

system, see W. D. Okla. ECF Policies & Procedures Manual, § I.A.1, and it was not

required to make an exception for Ms. Reinhardt. Crucially, she was not deprived of

the ability to be heard, but instead was able to access the district court through

alternative means, including mail and personal delivery. To the extent she suffered

delays, she was not prejudiced, because the district court routinely granted her

requests for extensions of time and ordered her otherwise untimely documents to be

filed. It also authorized her to submit her pretrial materials through e-mail. This

challenge presents no grounds for reversal.



1
      Any other arguments that Ms. Reinhardt may have intended to assert are
waived for failure to adequately brief them. See Toevs v. Reid, 685 F.3d 903, 911
(10th Cir. 2012).


                                          -4-
2.    Recusal

      Ms. Reinhardt sought the district judge’s disqualification because of his

education at and previous employment by the University of Oklahoma and previous

employment by the State of Oklahoma; his denials of her request to use the court’s

electronic filing system and adverse rulings in various matters during the litigation,

including discovery matters and her attempts to further amend her complaint; and his

demeanor during a scheduling conference, which she found intimidating. Such

allegations are insufficient to require recusal. See Liteky v. United States, 510 U.S.

540, 555-56 (1994) (adverse rulings, judicial intemperance); Maez v. Mountain States

Tel. & Tel., Inc., 54 F.3d 1488, 1508 (10th Cir. 1995) (long-past employment);

United States v. Cooley, 1 F.3d 985, 993-94 (10th Cir. 1993) (adverse rulings);

Willner v. Univ. of Kan., 848 F.2d 1023, 1028 (10th Cir. 1988) (per curiam) (adverse

rulings, alumni activities). Further, there is nothing in the record to suggest that the

district judge was biased against Ms. Reinhardt.

      Regarding the magistrate judge, Ms. Reinhardt alleges that he is married to the

Vice President for University Governance of the Board of Regents of the University

of Oklahoma, which was a party to this matter, and that he has longstanding

connections with other parties. But the magistrate judge’s only involvement in this

matter was to conduct a settlement conference between Ms. Reinhardt and Ms. Hopps

in January 2014, long after the claims against the University and the other parties

were dismissed. Under these circumstances, recusal was not required.


                                          -5-
3.    Dismissal of Action

      Ms. Reinhardt next challenges the district court’s dismissal with prejudice of

the federal and state claims set for trial. The dismissal was a sanction under

Fed. R. Civ. P. 16(f)(1), 37(b)(2)(A), and 41(b) for Ms. Reinhardt’s failures to timely

file her pretrial materials and to timely attend the February 5 hearing. The court

noted that the pretrial deadlines were longstanding and that Ms. Reinhardt had been

warned that a failure to comply would result in sanctions. It further noted that she

explicitly had been warned that a failure to appear at the hearing may also result in

sanctions, up to and including dismissal of the action. The court reviewed the factors

set forth in Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992), concluding

that Ms. Hopps actually was prejudiced by Ms. Reinhardt’s failure to submit pretrial

materials in a timely manner; Ms. Reinhardt’s noncompliance adversely impacted the

judicial process; she was culpable in the delays; and any lesser sanctions would not

remedy the prejudice to Ms. Hopps (and in any event a sanction such as exclusion of

witnesses and evidence, as suggested by Ms. Hopps, would amount to a dismissal of

the action because Ms. Reinhardt would not be able to prove her case).

      We review this decision for an abuse of discretion. See Gripe v. City of Enid,

Okla., 312 F.3d 1184, 1188 (10th Cir. 2002). “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, 965 F.2d at 918.

Ms. Reinhardt asserts that she was not significantly late; it would have been more


                                           -6-
appropriate to have held a telephone conference, given that it was winter; and she had

filed a list of witnesses and identified many exhibits. But the district court

appropriately invoked the Ehrenhaus factors, see Gripe, 312 F.3d at 1188, and

thoughtfully considered them. Although dismissal is a harsh sanction, having

considered the court’s order and the record of this case, we cannot conclude that the

court abused its discretion.

4.    Dismissal of § 1983 Claim and Summary Judgment on FHA Claim

      Ms. Reinhardt also asserts that the district court erred in dismissing the § 1983

claim against Ms. Hopps because she acted for governmental entities against

Ms. Reinhardt. But we discern no error in the district court’s determination that

Ms. Reinhardt made no plausible allegations that Ms. Hopps acted under color of

state law. Accordingly, for substantially the reasons set forth by the district court, we

affirm the dismissal of the § 1983 claim against Ms. Hopps.

      Regarding the FHA claim, the district court granted summary judgment for

Ms. Hopps based on a statutory exception for a single-family house rented by an

owner. See 42 U.S.C. § 3603(b)(1). Although on appeal Ms. Reinhardt generally

asserts that Ms. Hopps violated the FHA, she does not address the § 3603(b)(1)

exception or show how the district court erred in determining that Ms. Hopps

satisfied the requirements for the exception. We therefore affirm the grant of

summary judgment on this claim.




                                          -7-
5.     Denial of Stay

       Ms. Reinhardt also argues that the district court should have stayed the case

after she filed an interlocutory appeal to the Supreme Court regarding the denial of

leave to amend her complaint. We cannot see how the denial of a stay was reversible

error. She filed a notice of appeal on April 1, 2013, and a petition to the Supreme

Court on April 12, 2013. The notice of appeal was handled by this court, which

dismissed the appeal for lack of prosecution on April 19, 2013. Ms. Reinhardt did

not seek further review of that dismissal, and it does not appear that the Supreme

Court took action on her petition. So any stay, even if granted, would have been

short-lived and of little effect.

6.     Denial of Leave to Amend

       Ms. Reinhardt further challenges the court’s denial of her attempts to amend

her first amended complaint. In March 2012, she filed a second amended complaint

without leave of court or the consent of the other parties, which the court struck for

failure to comply with Fed. R. Civ. P. 15(a)(2). The district court then denied her

motion for leave to amend because she failed to state with specificity what

allegations or claims she intended to amend. Nearly a year later she indicated a

desire to amend. The district court issued an order setting a firm deadline for her to

file a motion to amend. She did not file any such motion, but instead filed a

supplemental complaint, which the district court struck for failure to follow its order

and for failure to seek leave before filing. The court then denied her out-of-time


                                          -8-
motion for leave to file the supplemental complaint, finding a lack of excusable

neglect or good cause for not meeting its deadline. And finally, the court denied

her September 2013 motion to amend on the ground of undue delay. Denial of

leave to amend is within the district court’s discretion, see Foman v. Davis, 371 U.S.

178, 182 (1962), and none of these determinations represent such an abuse. See

Fed. R. Civ. P. 15(a), (d); see also Berneike v. CitiMortgage, Inc., 708 F.3d 1141,

1151 (10th Cir. 2013) (failure to adequately describe proposed amendment); Smith v.

Aztec Well Servicing Co., 462 F.3d 1274, 1285 (10th Cir. 2006) (untimeliness/undue

delay).

7.    Return of Witness Fees

      Finally, Ms. Reinhardt objects that certain witnesses have not returned their

witness fees to her even though the trial was canceled. We do not review this issue

because it arose after she had filed her notice of appeal, and she did not file an

amended notice of appeal listing the order denying her request for reimbursement.

See Fed. R. App. P. 3(c)(1)(B) (requiring that the notice of appeal “designate the

judgment, order, or part thereof being appealed”); Coll v. First Am. Title Ins. Co.,

642 F.3d 876, 885-86 (10th Cir. 2011) (court lacked jurisdiction where plaintiffs

failed to file a timely notice of appeal from post-dismissal motion).




                                          -9-
The judgment of the district court is affirmed.


                                           Entered for the Court


                                           Timothy M. Tymkovich
                                           Circuit Judge




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