FILED
United States Court of Appeals
Tenth Circuit
October 1, 2009
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
JESSICA N. JONES,
Plaintiff - Appellant,
v. No. 08-7120
(E.D. Okla. )
WAL-MART CORPORATION, (D.Ct. No. 6:08-CV-00411-RAW)
Defendant - Appellee.
ORDER AND JUDGMENT *
Before HARTZ, EBEL, and O’BRIEN, 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.
Jessica Jones, appearing pro se, 1 appeals from the district court’s dismissal
*
This order and judgment is not binding precedent. 10th Cir. R. 32.1(A). Citation
to orders and judgments is not prohibited. Fed. R. App. 32.1. But it is discouraged,
except when related to law of the case, issue preclusion or claim preclusion. Any citation
to an order and judgment must be accompanied by an appropriate parenthetical notation –
(unpublished). 10th Cir. R. 32.1(A).
1
We liberally construe pro se pleadings. See Ledbetter v. City of Topeka, Kan.,
318 F.3d 1183, 1187 (10th Cir. 2003).
of her wrongful termination claims brought under 42 U.S.C. § 2000e et seq. (Title
VII), 42 U.S.C. § 1981 and 42 U.S.C. § 1983. We affirm.
I. BACKGROUND
Jones, an African-American, filed a pro se complaint claiming she was
harassed by a Caucasian employee, Mrs. Teague, while she was employed at Wal-
Mart Stores East, L.P. (Wal-Mart). Teague allegedly called Jones names and
criticized her about her weight. Although she reported the harassment to
management, the situation did not change. Eventually, Jones and Teague got into
a fight which Jones claims Teague provoked. Wal-Mart terminated Jones’
employment on August 6, 2008, but did not terminate Teague. Jones’ complaint
alleges her termination violated Title VII, 42 U.S.C. § 1983 and 42 U.S.C.
§ 1981.
Wal-Mart filed a motion to dismiss all of Jones’ claims. It argued Jones’
Title VII claims should be dismissed without prejudice because she failed to
establish the court’s jurisdiction by first filing her claims with the Equal
Employment Opportunity Commission (EEOC) or the Oklahoma Human Rights
Commission (OHRC) as required under 42 U.S.C. § 2000e-5(e)(1). Wal-Mart
also requested her § 1981 claims be dismissed without prejudice for purposes of
judicial economy so that Jones could bring both her Title VII and § 1981 claims
after she exhausts her Title VII administrative remedies. Wal-Mart asked that
Jones’ § 1983 claims be dismissed with prejudice because she failed to allege
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Wal-Mart was a state actor or was acting “in concert with the state.” (R. Vol. 1 at
14.)
The district court ordered the parties to exchange and file initial disclosures
pursuant to Rule 26 of the Federal Rules of Civil Procedure and to file a Joint
Status Report with the court no later than December 17, 2008. It also set a status
and scheduling conference for December 22, 2008. Jones failed to adequately
participate in the preparation of the Joint Status Report and failed to file or
exchange initial disclosures. She did not appear at the scheduling conference.
The district court granted Wal-Mart’s motion. It dismissed without
prejudice Jones’ Title VII claims for her failure to file an administrative charge
with the EEOC or the OHRC. It dismissed Jones’ § 1983 claims with prejudice
because her complaint did not allege Wal-Mart was a state actor or that its alleged
wrongdoing had sufficient nexus to state action to state a § 1983 claim. Finally,
the district court dismissed without prejudice Jones’ § 1981 claims due to her
failure to comply with the court’s orders. 2 Jones filed this pro se appeal.
2
“[T]hat a dismissal was without prejudice does not necessarily make it non-final
under section 1291.” Moya v. Schollenbarger, 465 F.3d 444, 448 (10th Cir. 2006). “If it
is clear that the plaintiff may not start over again with a properly drawn complaint,
because of limitations problems or otherwise, the action is treated as final and the order is
appealable.” Bragg v. Reed, 592 F.2d 1136, 1138 (10th Cir. 1979). Here, it is clear Jones’
may not start over again with a properly drawn complaint. “[A] district court order
dismissing a complaint for lack of prosecution, [is] a matter going to the merits of
appellant's complaint itself rather than a procedural problem which amendment of a
complaint might rectify.” Moya, 465 F.3d at 449 (quotations omitted). In addition, it has
been more than 300 days since Jones was fired, the time limit for filing a charge with the
EEOC. See Croy v. Cobe Lab., Inc., 345 F.3d 1199, 1202 (10th Cir. 2003).
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II. DISCUSSION
“We review a dismissal for lack of subject-matter jurisdiction de novo,
accepting the district court's findings of jurisdictional facts unless they are clearly
erroneous.” June v. Union Carbide Corp., 577 F.3d 1234, 1238 (10th Cir. 2009).
The court’s decision is well–supported in case law. See Shikles v. Sprint/United
Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir. 2005) (exhaustion of administrative
remedies is a jurisdictional prerequisite to suit under Title VII).
Similarly, “[w]e review de novo the district court's dismissal of a complaint
under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. We must accept all the
well-pleaded allegations of the complaint as true and must construe them in the
light most favorable to the plaintiff.” Jojola v. Chavez, 55 F.3d 488, 490 (10th
Cir. 1995) (quotations and citations omitted). “Dismissal is only appropriate
when the plaintiff can prove no set of facts to support a claim for relief.” Id.
Again, the district court’s dismissal of her § 1983 claims was based on well-
established Tenth Circuit precedent. See id. at 492 (“[P]rivate conduct that is not
fairly attributable to the state is simply not actionable under § 1983.” (quotations
omitted)).
Finally, “[t]he Federal Rules of Civil Procedure authorize sanctions,
including dismissal, for failing to appear at a pretrial or scheduling conference,
see Fed. R. Civ. P. 16(f) and 37(b)(2)(C), and for failing to comply with court
rules or any order of the court, see Fed. R. Civ. P. 41(b).” Gripe v. City of Enid,
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Okla., 312 F.3d 1184, 1188 (10th Cir. 2002). The courts entertain “very broad
discretion to use sanctions where necessary to insure . . . that [parties and their
lawyers] fulfill their high duty to insure the expeditious and sound management of
the preparation of cases for trial.” Mulvaney v. Rivair Flying Serv., Inc. (In re
Baker), 744 F.2d 1438, 1440 (10th Cir.1984) (en banc). “We review for an abuse
of discretion the district court’s decision to impose the sanction of dismissal for
failure to follow court orders and rules” Gripe, 312 F.3d 1188; see also
AdvantEdge Bus. Group L.L.C. v. Thomas E. Mestmaker & Assoc., 552 F.3d 1233,
1236 (10th Cir. 2009). “When dismissing a case without prejudice, a district
court may, without abusing its discretion, enter such an order without attention to
any particular procedures.” AdvantEdge, 552 F.3d at 1236.
Jones’ appellate brief contains no argument, no citations to the record and
no citation to authority relevant to the court’s ruling as required by Rule 28(a)(9)
of the Federal Rules of Appellate Procedure. Instead, her appellate brief merely
alleges the district court “didn’t hear the case because their [sic] racist, and favor
big company”s [sic][.]” (Appellant’s Br. at 4.) This scurrilous allegation has no
basis. She also claims the judge wrongly dismissed her § 1981 claim without
prejudice because “the judge could have had a scheduling conferen[c]e with us
not meeting in chambers.” Id.
“While we of course liberally construe pro se pleadings, an appellant's pro
se status does not excuse [her of] the obligation . . . to comply with the
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fundamental requirements of the Federal Rules of Civil and Appellate Procedure.”
Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994). “[A]lthough we
make some allowances for the pro se plaintiff’s failure to cite proper legal
authority, [her] confusion of various legal theories, [her] poor syntax and
sentence construction, or [her] unfamiliarity with pleading requirements, the court
cannot take on the responsibility of serving as the litigant's attorney in
constructing arguments and searching the record.” Garrett v. Selby Connor
Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (quotations and citations
omitted). “[E]ven issues designated for review are lost if they are not actually
argued in the party’s brief.” Phillips v. Calhoun, 956 F.2d 949, 954 (10th
Cir.1992). Jones offers no explanation why she did not appear pursuant to the
court’s scheduling order. Consequently, she has waived her argument and the
district court did not abuse its discretion in dismissing her claims without
prejudice. See AdvantEdge, 552 F.3d at 1236.
AFFIRMED.
Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
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