Wriston v. Monarch Casino

1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
District Judge S. Kato Crews
Civil Action No. 1:23-cv-01949-SKC-NRN
MARIO D. WRISTON,
Plaintiff,
v.
MONARCH CASINO,
Defendant.
ORDER
Before 	the 	Court 	is 	the 	Recommendation 	of 	Magistrate 	Judge 	N. 	Reid
Neureiter (Dkt. 61) to grant Defendant’s Motion to Dismiss (Motion) (Dkt. 53). The
Recommendation advised the parties they had 14 days after service in which to file
specific written objections. No party filed timely objections, but Plaintiff Mario
Wriston filed a tardy Objection (Dkt. 62)—20 days after the Recommendation was
docketed. Defendant Monarch Casino did not file any response. For the reasons
shared below, because the Court has satisfied itself that there is no clear error on the
face of the record, the Court accepts the Recommendation and incorporates it into
this Order by reference. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b).
Case No. 1:23-cv-01949-SKC-NRN Document 63 filed 02/25/25 USDC Colorado
pg 1 of 6

2
A. LEGAL PRINCIPLES
1. 	Review of a Magistrate Judge’s Recommendation
Pursuant to Fed. R. Civ. P. 72(b), this Court reviews de novo any part of a
magistrate judge’s recommendation that is properly objected to. An objection is
proper only if it is sufficiently specific “to focus the district court’s attention on the
factual and legal issues that are truly in dispute.” United States v. One Parcel of Real
Prop., 73 F.3d 1057, 1060 (10th Cir. 1996). However, “[i]n the absence of a timely
objection, the district court may review a magistrate’s report under any standard it
deems appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also
Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It does not appear that Congress intended
to require district court review of a magistrate’s factual or legal conclusions, under a
de novo or any other standard, when neither party objects to those findings.”). This
standard of review for an unobjected to recommendation, and an untimely objection,
is something less than a “clearly erroneous or contrary to law” standard of review,
which in turn is less than a de novo review. See Fed. R. Civ. P. 72(a) and (b).
2. 	Treatment of a Pro Se Plaintiff’s Pleadings
A pro se litigant’s pleadings are construed liberally and held to a less stringent
standard than formal pleadings drafted by lawyers. Garrett v. Selby Connor Maddux
& Janer, 425 F.3d 836, 840 (10th Cir. 2005). But a pro se litigant must follow the
same rules of procedure that govern other litigants, and the Court does not supply
additional factual allegations to round out a complaint or construct legal theories on
Case No. 1:23-cv-01949-SKC-NRN Document 63 filed 02/25/25 USDC Colorado
pg 2 of 6

3
behalf of a pro se litigant. Smith v. United States, 561 F.3d 1090, 1096 (10th Cir.
2009). The Court may excuse a pro se plaintiff’s failure to cite proper legal authority,
confusion about various legal theories, poor syntax and sentence construction, or
unfamiliarity with pleading requirements, but it does not act as the pro se plaintiff’s
advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
B. BACKGROUND
As set forth more fully in the Recommendation, Defendant employed Plaintiff
for approximately a half year in 2022 as a Cage Banker at its casino before
terminating his employment on November 10, 2022. Dkt. 61, p.4. Plaintiff contends
he was unlawfully terminated because he is Black. Id.
He worked in the casino cage with two other men—one Hispanic and the other
White—with whom he developed friendships. Id. He alleges his initial encounters
with other employees were generally pleasant, but several employees and supervisors
began “treating him differently after seeing his ‘mannerisms, colloquialisms, the way
[he] walk[ed] and talk[ed],’” and cites to three incidents with other employees. Id. at
pp.4-5 (quoting Dkt. 45-1, p.8). In one example, one of those interactions involved his
supervisor yelling at him and his two male colleagues (described above) for relatively
minor concerns, but that same supervisor did not similarly yell at female employees.
Id. at p.5. He also complains that the same supervisor refused to allow him to fix a
discrepancy with his paperwork that resulted in him receiving disciplinary points. Id.
Case No. 1:23-cv-01949-SKC-NRN Document 63 filed 02/25/25 USDC Colorado
pg 3 of 6

4
In late October 2022, a human resources employee of Defendant told Plaintiff
he was the subject of a random surveillance audit and not to come into work. Id. He
alleges no other employees he has spoken with have ever received a similar
instruction. Id. at p.6. He was then terminated for policy violations, but he alleges he
never received any warnings or write-ups, which contravened Defendant’s policy. Id.
The procedural history of this case is also relevant to this Order. The operative
complaint is the Second Amended Complaint. Dkt. 45. Plaintiff filed his original
complaint on July 28, 2023. Dkt. 1. Defendant moved to dismiss that complaint.
Dkt. 13. After the motion to dismiss was fully briefed, Plaintiff filed an amended
complaint that did not comply with the Federal Rules of Civil Procedure. Dkt. 21.
Defendant, however, moved to dismiss the amended complaint, which was also fully
briefed. Dkts. 26, 30. The Court accepted the amended complaint as filed, and it
became the operative complaint at the time. Dkt. 32.
Judge Neureiter held a hearing on Defendant’s motion to dismiss the amended
complaint. Dkt. 46. At that hearing, Judge Neureiter noted Plaintiff’s improper
service of the amended complaint, and he explained to Plaintiff that he would need
to properly serve the amended complaint and its related documents. Id. at 16:19-25,
17:1-11. He also alerted Plaintiff that his amended complaint might be subject to a
Rule 12(b)(6) motion to dismiss after proper service on the Defendant:
You know, “Just I got terminated because of my race,” that’s what they
call just conclusory statement. There have to be some facts supporting
it, and you did include some of the facts there. It might not be enough to
make out a legal claim.
Case No. 1:23-cv-01949-SKC-NRN Document 63 filed 02/25/25 USDC Colorado
pg 4 of 6

5
They’re probably going to look at it and say, “We’re going to try and move
to dismiss this new one,” but at least the process will have started, okay?
Id. at 17:12-19. He then recommended the second motion to dismiss be denied and
that Plaintiff be given an opportunity to file a second amended complaint; the
undersigned 	accepted 	that 	recommendation. 	Dkts. 41, 	44. 	Plaintiff 	then 	filed
documents, at least some of which appear to be identical to parts of his earlier
complaints (Dkts. 42, 43), which this Court construed together to be his Second
Amended Complaint. Dkts. 44, 45. Defendant then filed the subject Motion to
Dismiss, which is fully briefed. Dkts. 53, 57, 59.
C. ANALYSIS
As stated above, for a party to preserve their right to de novo review of a
Recommendation, their objections must be filed within 14 days of service of the
Recommendation. Plaintiff, however, did not file his Objection within that time. Thus,
the Court reviews the Recommendation to confirm no clear error on the face of the
record exists. See Thomas, 474 U.S. at 150.
The Court finds the Recommendation is detailed and thorough and contains no
clear error on the face of the record.1 Judge Neureiter correctly applied applicable law
1 Even if the Court were to consider Plaintiff’s Objection (Dkt. 62) and were to review
the Recommendation under the de novo standard, the Court would still come to the
same conclusion. The one-page Objection lacks the specificity necessary for the Court
to understand how Plaintiff believes Judge Neureiter erred. See One Parcel, 73 F.3d
at 1060 (“The filing of objections to a [magistrate judge’s] report enables the district
judge to focus attention on those issues—factual and legal—that are at the heart of
the parties’ dispute, and gives the district court an opportunity to correct any errors
Case No. 1:23-cv-01949-SKC-NRN Document 63 filed 02/25/25 USDC Colorado
pg 5 of 6

6
and appropriately construed Plaintiff’s claim liberally. He identified the elements of
that claim and explained, in detail, why Plaintiff’s Second Amended Complaint fails
to allege sufficient factual statements that support the elements of his claim under
Tenth 	Circuit 	precedent. 	Dkt. 61, 	pp.8-13. 	The 	Court 	finds 	no 	error 	in 	the
Recommendation, clear or otherwise.
* 	* 	*
For 	the 	reasons 	shared 	above, 	the 	Court 	ACCEPTS 	and 	ADOPTS 	the
Recommendation (Dkt. 61) and GRANTS the Motion to Dismiss (Dkt. 53). Further,
Plaintiff has already amended his complaint twice, and based on the foregoing
analysis (including Judge Neureiter’s cautioning Plaintiff that his Second Amended
Complaint might still be subject to a new motion to dismiss), the Court concludes any
further amendments would be futile. The Court therefore ORDERS Plaintiff’s claim
is DISMISSED WITH PREJUDICE. The Clerk of Court is FURTHER ORDERED to
terminate this case.
DATED: February 25, 2025
BY THE COURT:
______________________________
S. Kato Crews
United States District Judge
immediately.” (cleaned up)). And upon de novo review, the Court would still find
Defendant’s current Motion to Dismiss (Dkt. 53) should be granted and Plaintiff’s
Second Amended Complaint should be dismissed with prejudice.
Case No. 1:23-cv-01949-SKC-NRN Document 63 filed 02/25/25 USDC Colorado
pg 6 of 6