Camp v. Oxford General Partner

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:23-cv-03319-CNS-KAS
SHAWN CAMP, CITRMS,
Plaintiff,
v.
OXFORD GENERAL PARTNER, doing business as The Oxford Club Spa & Salon,
Defendant.
_____________________________________________________________________
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KATHRYN A. STARNELLA
This matter is before the Court on its October 23, 2024, Order to Show Cause
[#21] (the “Order”), addressing Plaintiff’s failure to comply with the Court’s Minute Order
[#6] by filing an amended complaint that complies with Fed. R. Civ. P. 8. Plaintiff, who
proceeds as a pro se litigant,1 filed an “Answer to Order to Show Cause” [#22] (the “OSC
Response”), Defendant filed a Reply [#23] (the “OSC Reply”), and Plaintiff, without the
Court’s leave, filed another Response [#24] (the “OSC Surreply”).
Separately, on July 24, 2024, Defendant filed a Motion to Dismiss for Failure to
Prosecute or Failure to State a Claim [#15] (the “Motion”), seeking dismissal under Fed.
R. Civ. P. 41(b) or, alternatively, under Fed. R. Civ. P. 12(b)(6). Plaintiff filed a Response
[#17] in opposition to the Motion [#15], and Defendant filed a Reply [#18]. Plaintiff, without
1 The Court must liberally construe a pro se litigant’s filings. See Haines v. Kerner, 404 U.S. 519,
520-21 (1972). In doing so, the Court will not be the pro se litigant’s advocate nor “supply
additional factual allegations to round out a plaintiff’s complaint or construct a legal theory on a
plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1175 (10th Cir. 1997) (citing Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).
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the Court’s leave, responded to the Reply [#18] with an “Answer to Denying Defendant’s
Motion to Dismiss for Failure to Prosecute or Failure to State a Claim” [#19] (the
“Surreply”). The Court has reviewed the briefing, the entire case file, and the applicable
law.
For the following reasons, the Court’s Order to Show Cause [#21] is MADE
ABSOLUTE. The Court RECOMMENDS that Defendant’s Motion to Dismiss [#15] be
GRANTED and that Plaintiff’s claims be DISMISSED WITHOUT PREJUDICE pursuant
to Fed. R. Civ. P. 41(b) for failure to prosecute, failure to comply with court orders, and
failure to comply with Fed. R. Civ. P. 8(a)(2).
I. Background
A. 	Factual Background2
On February 25, 2023, Plaintiff arrived at Defendant’s premises for a scheduled
foot treatment. See OSC Response [#22] at 2. He arrived an hour or two early to avoid a
possible no-show fee. See id. at 3. After services were rendered, Plaintiff’s credit card
was declined. Id. Staff told Plaintiff “that he could settle the bill the following day due to
[his] good standing with the establishment over the years.” Id. The following Monday,
Defendant’s Director of Spa and Fitness emailed Plaintiff, stating that he had “left the spa
without paying for [his] service on Saturday and did not return on Sunday to settle-up as
stated.” OSC Response, Ex. A [#22] at 17. She added that the Spa had “also received
2 	Plaintiff 	claims 	that 	Defendant 	subjected 	him 	to 	“[d]iscrimination 	in 	place 	for 	public
accommodations. Furthermore libel of character during the CCRD investigation. Violation of
Americans with Disabilities Act of 1990 & Violation of the Civil Rights [A]ct of 1964.” Compl. [#3]
¶ 4. However, because his Complaint [#3] offered no factual detail about his claims, the Court has
drawn this background from his other filings—in particular, the portion of the OSC Response [#22]
titled “See AMENDED COMPLAINT BELOW & BACKGROUND.” OSC Response [#22] at 2-4.
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complaints from the team regarding inappropriate behavior which makes them very
uncomfortable.” Id. She told Plaintiff that they “are going to sever ties” and that, “[m]oving
forward [he] will need to find another spa to enjoy [his] spa services.” Id. Plaintiff allegedly
pressed for more information about the offensive behavior and was told “[w]e do not have
to give you an explanation.” OSC Response [#22] at 3. He claims that Defendant engaged
in “Constructive & blatant Discrimination to Plaintiff who is a member of the protected
class,” though he does not identify his protected class and insists that his claim has
nothing to do with race. Id. at 3-4, 6 (arguing that “opposing counsel’[s] statement about
this litigation being about race is also misleading”).
Plaintiff claims that the Colorado Civil Rights Division (the “CCRD”) investigated
Defendant and that Defendant provided “false and misleading” information to the CCRD
to “pervert” the investigation. Id. at 6. Plaintiff states that “[D]efendant’s callus [sic]
behavior has caused the plaintiff great emotional duress in this litigation[.]” Id. at 4. Thus,
“[t]he plaintiff is seeking damages from the defendant in the amount of $70,000 in addition
to exemplary damages.” Id. at 5.
B. 	Procedural Background
On November 17, 2023, Plaintiff sued Defendant in state court. See Compl. [#3].
Defendant removed to this Court on December 18, 2023, and answered on December
26, 2023. Notice of Removal [#1]; Answer [#5].
1. 	The Minute Order [#6]
On January 4, 2024, the Court found that the Complaint [#3] did not comply with
Fed. R. Civ. P. 8 because it “fail[ed] to clearly and manageably articulate specific
allegations explaining how Defendant allegedly violated each of the legal rights identified
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by Plaintiff.” Minute Order [#6] at 1. Instead, “Plaintiff’s potential causes of action contain
only conclusory allegations” that “do not state a claim and would be subject to dismissal.”
Id. at 2. The Court ordered Plaintiff to file an amended complaint within thirty days,
providing additional factual allegations to cure the Complaint’s [#3] deficiencies. Id.
However, Plaintiff did not file an amended complaint. Instead, on January 16, 2024,
he filed an incomprehensible “Motion to Quash” [#8], which the Court construed as a
motion for settlement conference and denied due to Plaintiff’s failure to file “an operative
pleading that gives Defendant fair notice of the basis of the claim against it.” Minute Order
[#20] at 3 (internal quotations, citation, and modification omitted).
2. 	The Motion to Dismiss [#15]
Meanwhile, on July 24, 2024, Defendant moved to dismiss on grounds that (1)
Plaintiff failed to comply with the Court’s Minute Order [#6] to file an amended complaint,
warranting dismissal under Rule 41(b) for failure to comply with a court order; and (2)
even if the Court were to construe the Motion to Quash [#8] as an amended complaint, it
should nevertheless be dismissed under Fed. R. Civ. P. 12(b)(6) for failure to state a
claim. See Motion [#15] at 2-4.
In his Response [#17], Plaintiff suggested that his Motion to Quash [#8] should be
construed as an amended complaint. See Response [#17] at 3 (“As of the time of this
filing[,] Plaintiff has filed a Complaint as ordered by this Court.”), 5 (“The Motion to Quash
can suffice as an a [sic] Complaint as it does cure the deficiencies identified in the Minute
Order issued by Magistrate Judge Starnella.”).
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3. 	The Order to Show Cause [#21]
Finally, on October 23, 2024, the Court issued its Order to Show Cause [#21],
ordering Plaintiff to “show cause why this Court should not recommend that his case be
dismissed pursuant to Rule 41(b) for failure to prosecute, failure to comply with the Court’s
Minute Order [#6], and failure to file an [a]mended [c]omplaint.” Order to Show Cause
[#21] at 3. The Court explained that “[e]ven construed liberally, the Motion to Quash [#8]
does not constitute an amended complaint” because the allegations contained therein
“still do not explain what Defendant did to [Plaintiff], when Defendant did it, how
Defendant’s actions harmed [Plaintiff], and what specific legal right Plaintiff believes
Defendant violated.” Id. at 2 (citing Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d
1158, 1163 (10th Cir. 2007)). The Court ordered Plaintiff to either (1) respond in writing
to showing good cause for failure to comply with the Minute Order [#6] or (2) file an
amended complaint. Id. at 3. The Court warned Plaintiff that “[f]ailure to respond and show
good 	cause 	for 	Plaintiff’s 	neglect 	of 	his 	case 	will 	result 	in 	the 	Court 	issuing 	a
recommendation to dismiss Plaintiff’s action.” Id.
On November 12, 2024, Plaintiff filed his OSC Response [#22] which includes the
additional facts previously discussed. See OSC Response [#22] at 2-4.
II. Legal Standards
A. 	Rule 8
Under Fed. R. Civ. P. 8(a)(2), a complaint “must contain . . . a short and plain
statement of the claim showing that the [plaintiff] is entitled to relief.” To that end, courts
often advise pro se plaintiffs that “to state a claim in federal court, a complaint must
explain what each defendant did to him or her; when the defendant did it; how the
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defendant’s action harmed him or her; and, what specific legal right the plaintiff believes
the defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163
(10th Cir. 2007); see also Minute Order [#6] at 2 (advising plaintiff of these requirements).
These are “the elements that enable the legal system to get weaving—permitting the
defendant sufficient notice to begin preparing its defense and the court sufficient clarity
to adjudicate the merits.” Id.
Under Rule 8, the district court has the discretion to “dismiss a pro se complaint
when, even liberally construed, it is ‘incomprehensible.’” Cf. Whitehead v. Shafer, 295 F.
App’x 906, 908 (10th Cir. 2008) (citing Carpenter v. Williams, 86 F.3d 1015, 1016 (10th
Cir. 1996) (affirming dismissal of pro se plaintiff’s “incomprehensible” complaint for failure
to comply with Rule 8); Moser v. Oklahoma, 118 F. App’x 378, 380-81 (10th Cir. 2004)
(similar)). This may occur when a complaint “recites an array of statutory and common-
law causes of action with little, if any, connection to the factual allegations.” Whitehead,
295 F. App’x at 908.
B. 	Rule 41(b)
Fed. R. Civ. P. 41(b) provides in relevant part:
If the plaintiff fails to prosecute or to comply with these rules
or a court order, a defendant may move to dismiss the action
or any claim against it. Unless the dismissal order states
otherwise, a dismissal under this subdivision (b) . . . operates
as an adjudication on the merits.
Additionally, D.C.COLO.LCivR 41.1 provides that:
A judicial officer may issue an order to show cause why a case
should not be dismissed for failure to prosecute or failure to
comply with . . . the Federal Rules of Civil Procedure[]or a
court order. If good cause is not shown, a district judge or a
magistrate judge exercising consent jurisdiction may enter an
order of dismissal with or without prejudice.
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A Rule 41(b) dismissal is reviewed for abuse of discretion. Ecclesiastes 9:10-11-
12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1143 (10th Cir. 2007). “A district court
undoubtedly has discretion to sanction a party for failing to prosecute or defend a case,
or for failing to comply with local or federal procedural rules.” AdvantEdge Bus. Grp. v.
Thomas E. Mestmaker & Assocs., Inc., 552 F.3d 1233, 1236 (10th Cir. 2009) (quoting
Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002)). “[D]ismissal is warranted when
‘the aggravating factors outweigh the judicial system’s strong predisposition to resolve
cases on their merits.’” Ecclesiastes, 497 F.3d at 1144 (quoting Ehrenhaus v. Reynolds,
965 F.2d 916, 921 (10th Cir. 1992)).
If a Rule 41(b) dismissal is with prejudice, the district court must consider the five
Ehrenhaus factors: “(1) the degree of actual prejudice to the defendant[s]; (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 (internal citations omitted). Ordinarily, a court need not consider these factors
when the dismissal is without prejudice, but a court should consider them where the
dismissal would essentially be with prejudice because the statute of limitations has run.
Cf. Villeco v. Vail Resorts, Inc., 707 F. App’x 531, 534 (10th Cir. 2017) (citing AdvantEdge,
552 F.3d at 1236).
III. Analysis
In responding to the Order to Show Cause [#21], Plaintiff insists that his initial
Complaint [#3] was sufficient to state a claim. See OSC Response [#22] at 2 (“The plaintiff
thought there was nothing to amend in the complaint that had been filed” because “[i]t
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shows the facts and proves the actions of the defendant in this case.”). Among other
difficult-to-follow contentions, he insists that “[d]eficiencies were cured.” Id. Although he
added some additional facts and provided exhibits, including Defendant’s Position
Statement to the CCRD and the Spa Director’s email, Plaintiff’s OSC Response [#22] is
still deficient because it still fails to set forth the factual basis for his claims as Rule 8
requires. See OSC Response [#22] at 2-4, 11-18. As Defendant argues, Plaintiff’s OSC
Response [#22] “still does not address the deficiencies identified by the Court in its
[Minute] Order or Show Cause Order.” OSC Reply [#23] at 2, ¶ 3.
A. 	Rule 8
Even construing the OSC Response [#22] as an attempt at an amended complaint,
it does not contain a “short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). Taking Plaintiff’s allegations as true, he received
spa treatment from Defendant, left without paying, and did not pay the next day as
promised. 	Cf. 	OSC 	Response 	[#22] 	at 	2-3, 	17. 	Additionally, 	some 	members 	of
Defendant’s “team” made complaints relating to “inappropriate behavior which makes
them very uncomfortable.” OSC Response [#22], Ex. A, at 17. Plaintiff argues that “[he]
never had issues with [the previous Spa Director] or [her] staff[.]” OSC Response [#22] at
6. According to plaintiff, this “show[s] the Court Clearly [sic] that opposing counsel
statement [sic] about this litigation being about race is also misleading.” Id. Nowhere in
his recitation of facts does Plaintiff mention his race or membership in any other protected
class, and he sets forth no factual assertions that would allow the Court to reasonably
infer that race, disability, or some other protected characteristic played a role in
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Defendant’s decision to 	cut 	ties 	with 	Plaintiff—a 	critical 	element 	of his 	claim 	for
“[d]iscrimination in place for public accommodations,” see Compl. [#3] ¶ 4.
Thus, the causes of action Plaintiff stated in his Complaint [#3]—namely that
Defendant engaged in “discrimination in place for public accommodations” in violation of
the Americans with Disabilities Act or the Civil Rights Act of 1964 and “libel of character
during 	the 	CCRD 	investigation”—remain 	completely 	unsupported 	by 	any 	factual
averments and disconnected from the facts as Plaintiff now asserts them. See Compl.
[#3] ¶ 4. The most plausible reading of the “Amended Complaint” portion of the OSC
Response [#22] is that Defendant cut ties with him because he left without paying for
services 	rendered, did 	not return 	to pay as 	promised, and made staff members
uncomfortable, which does not state a claim for discrimination or libel. See OSC
Response [#22] at 13.
Beyond this “Amended Complaint” section, Plaintiff’s OSC Response [#22] is
“sufficiently confusing and disjointed so as to render the legal claims incomprehensible.”
Whitehead, 295 F. App’x at 908. For example, his “Argument” section includes a strange
assertion about “ex prate communication [sic] notified Magistrate Strarnella [sic] division
about the infection from opposing counsel” and suggests that Defendant should be
subject to “following Criminal Penalties under Federal Law. United States Code 1623
United States Code 1001 United States Code 1505.” OSC Response [#22] at 5, 8. He
lobs invective at Defendant and its counsel throughout. See, e.g., id. at 6 (accusing
Defendant’s counsel of “misrepresent[ing] the facts in this case” and asserting that
“Opposing Counsel should face CONTEMPT OF COURT”), 9 (accusing Defendant of
“commit[ting] PERJURY & Obstruction of Justice”). Thus, even though Plaintiff provided
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some additional facts about Defendant cutting ties with him, his OSC Response [#22]
demonstrably is not a short and plain statement of the basis of his claims.
The Court has repeatedly reminded Plaintiff that his case cannot proceed unless
and until he files an amended complaint that collects his claims in one place and states
them clearly enough for Defendant to respond. See Minute Order [#6] at 2 (“all of Plaintiff’s
potential causes of action contain only conclusory allegations” which “do not state a claim
and would be subject to dismissal”); see also Minute Order [#20] at 3 (“Given . . . Plaintiff’s
failure to file a proper amended complaint, the Court finds that a settlement conference
at this juncture will likely be unproductive.”); Order to Show Cause [#21] at 3 (“Plaintiff
has not filed anything that addresses the deficiencies identified in the Minute Order [#6].”).
Yet Plaintiff is either unwilling or unable to comply with the Court’s order—instead, his
OSC Response [#22] seemingly refutes his own claims of libel and discrimination by
offering straightforward and nondiscriminatory bases for Defendant’s alleged conduct.
Taken together, Plaintiff’s Complaint [#3] “recites an array of statutory and
common-law causes of action with little, if any, connection to the factual allegations” he
now levels in his OSC Response [#22]. Whitehead, 295 F. App’x at 908. For example, he
claims he was discriminated against based on membership in a protected class but does
not identify that protected class. See OSC Response [#22] at 2-4. Thus, Plaintiff still has
not given Defendant “fair notice of the basis of the claim against [it]” nor has he “apprise[d]
the court of sufficient allegations to allow it to conclude, if the allegations are proved, that
[he] has a legal right to relief.” Perington Wholesale, Inc. v. Burger King Corp., 631 F.2d
1369, 1371 (10th Cir. 1979). Plaintiff has failed to comply with the Court’s Minute Order
[#6], the Court’s Order to Show Cause [#21], and Fed. R. Civ. P. 8(a)(2).
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B. 	Rule 41(b)
The Court considers whether to dismiss Plaintiff’s Complaint [#3] under Rule 41(b)
because he is either unable or unwilling to comply with court orders and the Federal Rules
of Civil Procedure. However, the statute of limitations may have run (or be about to run)
on some or all of Plaintiff’s claims, given that the events occurred nearly two years ago.
Cf. OSC Response [#22] at 17 (Ms. Huntley’s email dated February 27, 2023). Therefore,
in an abundance of caution, the Court considers whether dismissal is appropriate under
the Ehrenhaus factors.
1. 	Actual Prejudice to Defendant
As for the first Ehrenhaus factor, defendants “ha[ve] a legitimate interest in bringing
. . . matter[s] to closure within a reasonable time.” Rogers v. Andrus Transp. Servs., 502
F.3d 1147, 1152 (10th Cir. 2007). The Court finds that Defendant has suffered actual
prejudiced by the pendency of this case: Plaintiff filed his Complaint [#3] over 400 days
ago, alleging only conclusory legal theories, and still has not set forth the factual basis for
those claims. This impairs Defendant’s ability to marshal relevant evidence and witnesses
to rebut Plaintiff’s claims. The Court also finds Defendant has suffered prejudice in the
form of attorney’s fees spent reviewing and responding to Plaintiff’s filings that seek
unclear relief, such as the Motion to Quash [#8]. See Ehrenhaus, 965 F.2d at 921
(affirming district court’s determination that plaintiff’s “actions prejudiced the defendants
by causing delay and mounting attorney’s fees”). Admittedly, this case has not involved
numerous or voluminous filings, mitigating some of that prejudice.
However, the Tenth Circuit also considers the nature of the allegations against a
Defendant under this factor. Cf. id. (noting that “a lawsuit containing the serious and
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stigmatizing allegations of fraud damages the reputation of those accused so long as the
lawsuit remains pending”). Here, Plaintiff alleges that Defendant, a public facing business,
unlawfully discriminated against him and committed libel. Compl. [#3] ¶ 4. Allegations of
discrimination and libel, like allegations of fraud or unlawful collusion, “damage[] the
reputation of those accused so long as the lawsuit remains pending.” Ehrenhaus, 965
F.2d at 921 (weighing the stigmatizing effects of fraud allegations); see also Crittendon-
Morman v. Schuelke, No. 23-cv-02630-CNS-MDB, 2024 WL 5381417, at *3 (D. Colo.
Dec. 11, 2024) (commenting on damaging nature of racial discrimination [and unlawful
seizure] allegations against police officers during Ehrenhaus factor analysis), report and
recommendation adopted, 2025 WL 29736 (D. Colo. Jan. 6, 2025). Plaintiff’s repeated
failure to plead facts that support his allegations of discrimination and libel deprives
Defendant of an opportunity to meaningfully address or rebut his claims. Accordingly, the
Court finds that the first Ehrenhaus factor weighs in favor of dismissal.
2. 	Interference with the Judicial Process
As for the second Ehrenhaus factor, the Tenth Circuit has held that “causing a
district court to expend unnecessary resources can establish interference with the judicial
process.” Ellis-Hall Consultants, LLC v. Hofmann, Nos. 20-4040, 20-4041, 20-4045, 2022
WL 3972093, at *5 (10th Cir. Sep. 1, 2022) (citing Jones v. Thompson, 996 F.2d 261, 265
(10th Cir. 1993) (finding second Ehrenhaus factor satisfied where plaintiffs “repeatedly
ignored court orders and thereby hindered the court’s management of its docket and its
efforts to avoid unnecessary burdens on the court and the opposing party”)); see also
Brauning v. Christian, No. 23-7063, 2024 WL 3811810, at *2 (10th Cir. Aug. 14, 2024)
(affirming Rule 41(b) dismissal where plaintiff’s “fail[ure] to comply with a show cause
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order constitute[ed] interference with the judicial process”).
Here, Plaintiff has filed multiple responses and exhibits, which the Court has spent
significant time reviewing. Large portions of these filings are difficult to comprehend and
have sections which are copied from Defendant’s filings without attribution and then
edited, rendering unclear what relief Plaintiff seeks. See Motion [#15] at 4 (“Plaintiff
appears to have cut-and-pasted sentences and paragraphs from his Complaint and
Defendant’s Answer without any clear organization or point.”). While Plaintiff filed most of
these papers in response to court orders, this could have been avoided had Plaintiff
simply followed the Court’s simple instruction to “explain what each defendant did to him
or her, when the defendant did it, how the defendant’s action harmed him or her, and,
what specific legal right the plaintiff believes the defendant violated.” Minute Order [#6] at
2 (quoting Nasious, 492 F.3d at 1163). This has wasted limited judicial time and
resources. Cf. Santistevan v. Colo. Sch. of Mines, 150 F. App’x 927, 930 (10th Cir. 2005)
(affirming dismissal order where the district court had “found the judicial system was
prejudiced by the complete lack of any meaningful advancement in the case, as well as
time spent by the magistrate judge”). The Court has given Plaintiff multiple opportunities
to fully litigate his lawsuit since this case’s inception, and the first step is framing a
complaint that complies with Rule 8. See e.g., Fed. R. Civ. P. 3 advisory committee’s
note, 1937 adoption (“This rule provides that the first step in an action is the filing of the
complaint.”); Iqbal, 556 U.S. at 678 (stating that “Rule 8 . . . does not unlock the doors of
discovery for a plaintiff armed with nothing more than conclusions”). Plaintiff’s failure to
file an amended complaint has caused, and continues to cause, enormous and mounting
delay since he initiated the case on November 17, 2023. See Compl. [#3]. This cannot
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indefinitely continue. Accordingly, the Court finds that the second Ehrenhaus factor
weighs in favor of dismissal.
3. 	Plaintiff’s Culpability
As for the third Ehrenhaus factor, Defendant argues that “Plaintiff’s failure to file
an amended Complaint in compliance with the Order cannot be attributed to anyone other
than himself.” Motion [#15] at 3. Indeed, Plaintiff is solely responsible for the current state
of his lawsuit. While his most recent effort included more facts, those facts are completely
disconnected from and unrelated to his alleged causes of action—instead, they suggest
that Defendant severed ties with him because he failed to pay for services rendered.
There is no indication that anyone other than Plaintiff is responsible for the deficiencies
in his Complaint [#3] or his continued failure to comply with Rule 8. Accordingly, the Court
finds that the third Ehrenhaus factor weighs in favor of dismissal.
4. 	Warnings to Plaintiff
As for the fourth Ehrenhaus factor, the Court has expressly and consistently
warned Plaintiff that failure to comply with Rule 8(a)(2), or to show good cause for
noncompliance, would likely result in a recommendation to dismiss Plaintiff’s action. See
Minute Order [#6] at 2 (“all of Plaintiff’s potential causes of action contain only conclusory
allegations” which “do not state a claim and would be subject to dismissal”); Order to
Show Cause [#21] at 3 (warning Plaintiff that failure to respond with an explanation of “his
failure to comply with the Court’s Order [#6]” or to “file an Amended Complaint” would
result in a recommendation for dismissal).
The Court made clear that it could not construe his Motion to Quash [#8] as an
amended complaint because it did not comply with Rule 8. Minute Order [#20] at 2 (“The
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Court 	therefore construes 	the 	Motion 	to Quash [#8] 	as a 	request 	for 	settlement
conference, but it declines to grant the request at this time.”); Order to Show Cause [#21]
at 2 (explaining that Exhibit B to the Motion to Quash [#8] came close but “still fail[ed] to
include ‘a short and plain statement of the claim’”). Although Plaintiff is proceeding pro
se, he is required to read and follow the rules and orders of the Court. Green v. Dorrell,
969 F.2d 915, 917 (10th Cir. 1992). There can be no doubt that Plaintiff received these
multiple warnings, as he filed papers in response to each. See Motion to Quash [#8]; OSC
Response [#22]. Accordingly, the Court finds that the fourth Ehrenhaus factor weighs in
favor of dismissal.
5. 	Efficacy of Lesser Sanctions
Finally, nothing in the record before the Court suggests that, if given more time or
more chances, Plaintiff would comply with Rule 8(a)(2) by pleading facts that support his
stated claims for relief. On the contrary, Plaintiff’s most recent recitation of facts actually
undercuts his claims because it demonstrates nondiscriminatory reasons for Defendant’s
conduct. See OSC Response [#22] at 2-4, 6. Plaintiff has repeatedly shown that he is
either unwilling or unable to comply with Rule 8’s mandates. Further, the Court finds that
a monetary sanction would be ineffective because it bears no relationship to the issue
central to this Recommendation. Under these circumstances, no lesser sanction is
warranted, and dismissal is appropriate. See Rueb v. Zavaras, 532 F. App’x 831, 833-34
(10th Cir. 2013) (affirming district court’s dismissal of pro se plaintiff’s case where
plaintiff’s refusal to comply with the court’s orders demonstrated that lesser sanctions
would be ineffective). Accordingly, the Court finds that the fifth Ehrenhaus factor weighs
in favor of dismissal.
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Having weighed all five Ehrenhaus factors, the Court makes absolute its Order to
Show Cause [#21]. Plaintiff has failed to comply with Rule 8 and with multiple court orders
that directed him to allege facts that support his stated causes of action. He has failed to
show good cause for his inability or unwillingness to comply with Rule 8.
IV. Conclusion
Based on the foregoing,
IT IS HEREBY ORDERED that the Order to Show Cause [#21] is MADE
ABSOLUTE.
IT IS FURTHER RECOMMENDED that Defendant’s Motion to Dismiss for Failure
to Prosecute or Failure to State a Claim [#15] pursuant to Fed. R. Civ. P. 41(b) be
GRANTED.
IT 	IS 	FURTHER 	RECOMMENDED 	that 	Plaintiff’s 	claims 	be 	DISMISSED
WITHOUT PREJUDICE pursuant to Fed. R. Civ. P. 41(b), for failure to prosecute and
failure to comply with multiple court orders and for failure to comply with Fed. R. Civ. P.
8(a)(2).
IT IS FURTHER ORDERED that any party may file objections within 14 days of
service of this Recommendation. In relevant part, Fed. R. Civ. P. 72(b)(2) provides that,
“within 14 days after being served with a copy of the recommended disposition, a party
may 	serve 	and 	file 	specific 	written 	objections 	to 	the 	proposed 	findings 	and
recommendations. A party may respond to another party’s objections within 14 days after
being served with a copy.” “[A] party’s objections to the magistrate judge’s report and
recommendation must be both timely and specific to preserve an issue for de novo review
by the district court or for appellate review.” United States v. 2121 E. 30th St., 73 F.3d
Case No. 1:23-cv-03319-CNS-KAS Document 25 filed 02/20/25 USDC Colorado
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1057, 1060 (10th Cir. 1996). The objection must be “sufficiently specific to focus the
district court’s attention on the factual and legal issues that are truly in dispute.” Id. “[A]
party who fails to make a timely objection to the magistrate judge’s findings and
recommendations waives appellate review of both factual and legal questions.” Morales-
Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005).
Dated: February 20, 2025 	BY THE COURT:
Kathryn A. Starnella
United States Magistrate Judge
Case No. 1:23-cv-03319-CNS-KAS Document 25 filed 02/20/25 USDC Colorado
pg 17 of 17