No Automatic Liberal Construction for Legally Trained Pro Se Litigants; Rule 41(b) Dismissal Affirmed Under Ehrenhaus After Failure to Cure Pleading Defects

Introduction

In Cohen v. Hartman, No. 24-1343 (10th Cir. Oct. 7, 2025), the Tenth Circuit affirmed a district court’s dismissal with prejudice of a pro se plaintiff’s Title II Americans with Disabilities Act claims as a sanction under Federal Rule of Civil Procedure 41(b). The decision is significant for three reasons:

It reaffirms that courts may decline to afford liberal construction to pleadings filed by pro se litigants who possess legal training (here, a disbarred attorney).
It confirms that a district court may impose the ultimate sanction—dismissal with prejudice—when a plaintiff repeatedly fails to file a short and plain statement and disregards clear instructions to cure defects, particularly after warnings and opportunities to amend, consistent with the five-factor test in Ehrenhaus v. Reynolds.
It clarifies that an initial pro se screening determination under a local rule (here, D. Colo. Civ. R. 8.1(a)) is not a final ruling and therefore does not establish law of the case.

Plaintiff Emily Cohen, a disbarred Colorado attorney, sued a state judge and a deputy district attorney in their official capacities, alleging failure to accommodate, disability discrimination, and retaliation under Title II of the ADA arising out of state criminal proceedings. After repeated noncompliant pleadings and a failure to cure deficiencies despite detailed guidance, the district court dismissed her amended complaint with prejudice. The Tenth Circuit affirmed.

Summary of the Opinion

The Tenth Circuit (Judges McHugh, Kelly, and Federico) affirmed the district court’s dismissal with prejudice under Rule 41(b), reviewing for abuse of discretion. Applying Ehrenhaus v. Reynolds, the court concluded the district court acted within its discretion in finding all five factors favored dismissal: prejudice to the defendants, interference with the judicial process, the plaintiff’s culpability, advance warning, and the inefficacy of lesser sanctions.

The court rejected two principal appellate arguments from Cohen:

Liberal construction: Although Cohen proceeded pro se, her legal training meant she was not entitled to the usual leniency in construing pleadings.
Law of the case: The magistrate judge’s initial screening determination that the complaint was not subject to summary dismissal under D. Colo. Civ. R. 8.1(a) was not a final ruling and thus could not create law of the case.

Because the dismissal was a sanctions ruling under Rule 41(b), the court did not reach the merits of Cohen’s ADA claims. The panel issued an unpublished order and judgment, nonprecedential but citable for its persuasive value under Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

Analysis

Precedents Cited and Their Influence

Ehrenhaus v. Reynolds, 965 F.2d 916 (10th Cir. 1992):
Ehrenhaus provides the five-factor framework for determining whether dismissal as a sanction under Rule 41(b) is appropriate:
- Degree of actual prejudice to the defendant;
- Amount of interference with the judicial process;
- Culpability of the litigant;
- Advance warning of the possibility of dismissal;
- Efficacy of lesser sanctions.
The district court expressly weighed each factor and found all five favored dismissal with prejudice. The Tenth Circuit deferred to this analysis, noting that dismissal may be appropriate when these considerations, taken together, show that no lesser sanction would satisfy the interests of justice.
Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158 (10th Cir. 2007):
Nasious reinforces that Rule 8 requires a short and plain statement, and that dismissals for violating court orders or rules are evaluated under Ehrenhaus. The panel cited Nasious in recognizing that Rule 41(b) dismissals fall within the district court’s discretion when the litigant fails to heed court directives and procedural rules.
Mann v. Boatright, 477 F.3d 1140 (10th Cir. 2007):
Mann supports the principle (noted in a footnote there and echoed here) that courts need not provide liberal construction to pleadings filed by pro se litigants with legal training. The court also cited its prior order in Cohen’s related appeal for the same proposition.
Unioil v. Elledge (In re Unioil, Inc.), 962 F.2d 988 (10th Cir. 1992):
Unioil clarifies that only final judgments can establish law of the case. The initial screening determination under D. Colo. Civ. R. 8.1(a) was not final and thus did not bind later rulings. This defeated Cohen’s law-of-the-case argument.

Legal Reasoning

The panel’s reasoning proceeds in three principal steps:

Standard of review and sanction authority:
Dismissals under Rule 41(b) for failure to comply with court orders are reviewed for abuse of discretion. The court reiterated that trial courts possess broad authority to manage their dockets and impose sanctions when litigants disregard procedural rules and explicit instructions, citing Ehrenhaus and Nasious.
Application of the Ehrenhaus factors:
The district court found that all five factors supported dismissal with prejudice:
- Prejudice: Defendants were required to respond repeatedly to a prolix, noncompliant complaint and an essentially unchanged amended complaint, imposing unnecessary burdens and costs.
- Interference with the judicial process: The litigation was impeded by pleadings that were “an unorganized and often repetitive stream-of-consciousness,” requiring multiple judicial interventions and recommendations.
- Culpability: Cohen’s legal training and explicit awareness of the court’s directives heightened her responsibility; yet she made no genuine effort to fix the identified defects despite acknowledging the instructions.
- Warning: The magistrate judge’s report and recommendation and the district court’s order provided clear notice that noncompliance could lead to dismissal, and Cohen was given an opportunity to amend.
- Inefficacy of lesser sanctions: After warning and an opportunity to cure failed to produce a compliant pleading, the district court reasonably concluded that lesser sanctions would not be effective.
The Tenth Circuit found no abuse of discretion in this analysis and emphasized that dismissal can be warranted when, after considering all relevant factors, it is the only sanction that satisfies the interests of justice.
Rejection of ancillary arguments:
The court rejected Cohen’s claim to liberal construction because she is legally trained (as already observed in a related appeal). It also rejected her law-of-the-case argument because an initial pro se screening determination is interlocutory and non-final. Finally, because the dismissal was properly imposed as a sanction, the court declined to reach the underlying ADA merits.

Impact

Although unpublished, the decision carries persuasive weight and offers practical guidance for litigants and courts within the Tenth Circuit:

Pro se litigants with legal training: The court reiterates that such litigants cannot rely on the leniency typically afforded to non-lawyer pro se parties. This should influence how legally trained pro se litigants draft pleadings and respond to court orders.
Rule 8 compliance and docket management: Courts may, after warning and an opportunity to cure, dismiss with prejudice where a plaintiff files repetitive, argumentative, and disorganized complaints that contravene the “short and plain statement” requirement.
Ehrenhaus in practice: This case illustrates a textbook application: repeated noncompliance after clear directions and warnings, demonstrable prejudice and interference, and the conclusion that lesser sanctions would be ineffective.
Initial screening orders: Parties should not treat pro se screening orders under local rules as binding merits determinations; they do not create law of the case and may be revisited as the case develops.
Merits deferred when sanctions control: Where a court properly dismisses on sanctions grounds, merits arguments—even potentially significant ADA claims—will not be reached on appeal.

Complex Concepts Simplified

Rule 41(b) dismissal: A case can be dismissed when a party fails to comply with court rules or orders. “With prejudice” means the case is closed permanently and generally cannot be refiled (subject to any appeal or narrow exceptions).
Ehrenhaus factors: A five-part test courts use to decide whether dismissal as a sanction is appropriate, focusing on prejudice, process interference, litigant fault, warning, and whether lesser sanctions could work.
Rule 8’s “short and plain statement”: Complaints should be concise, factual, and organized—explaining who did what, when, where, and why—without extended legal argument or conclusory assertions.
Liberal construction of pro se filings: Courts often read non-lawyer pro se filings generously to discern claims. But when the pro se litigant has legal training (e.g., an attorney, even if disbarred), courts may decline this leniency.
Law of the case: A doctrine that prevents re-litigation of issues that have been decided earlier in the same case by a final ruling. Preliminary or screening orders are not final and do not bind later stages.
Official-capacity suits: Claims against officials in their official roles are effectively claims against the governmental entity. This case did not reach the merits or potential immunity questions because it was resolved on sanctions grounds.

Conclusion

Cohen v. Hartman reinforces a clear message in the Tenth Circuit: litigants—especially those with legal training—must heed Rule 8 and comply with explicit court orders to cure pleading deficiencies. After a warning and an opportunity to amend, repetitive, disorganized, and argumentative pleadings justify dismissal with prejudice under Rule 41(b) when the Ehrenhaus factors align. The decision also underscores that initial screening orders are not final decisions and do not establish law of the case. While the opinion is nonprecedential, it is a persuasive and practical guidepost for managing pro se litigation and for litigants navigating the procedural requirements that gatekeep access to merits adjudication.

Key Authorities

Ehrenhaus v. Reynolds, 965 F.2d 916 (10th Cir. 1992)
Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158 (10th Cir. 2007)
Mann v. Boatright, 477 F.3d 1140 (10th Cir. 2007)
Unioil v. Elledge (In re Unioil, Inc.), 962 F.2d 988 (10th Cir. 1992)
Cohen v. Hartman, No. 23-1364, 2024 WL 4234967 (10th Cir. Sept. 19, 2024) (related appeal, mootness; footnote on pro se leniency)