Wimbish v. Nextel West Corp.

Filing 4

ORDER Directing Plaintiff To Cure Deficiencies and File Amended Title VII Complaint, by Magistrate Judge Boyd N. Boland on 06/26/14. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-01718-BNB
(The above civil action number must appear on all future papers
sent to the Court in this action. Failure to include this number
may result in a delay in the consideration of your claims.)
SATYA WIMBISH,
Plaintiff,
v.
NEXTEL WEST CORP., dba SPRINT,
Defendant.

ORDER DIRECTING PLAINTIFF TO CURE DEFICIENCIES AND
FILE AMENDED TITLE VII COMPLAINT

Plaintiff, Satya Wimbish, has submitted pro se an Application to Proceed in
District Court Without Prepaying Fees or Costs (ECF No. 3) and a Complaint (ECF No.
1) pursuant to Title VII asserting discrimination on the basis of religion. As part of the
Court’s review pursuant to D.C.COLO.LCivR 8.1, the Court has determined that the
submitted documents are deficient as described in this order. Plaintiff will be directed to
cure the following if she wishes to pursue her claims. Any papers that Plaintiff files in
response to this order must include the civil action number on this order.
Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915:
is not submitted
(1)
(2)
is not on proper form (must use the Court’s current form)
(3)
is missing original signature by plaintiff/petitioner/applicant
(4)
is missing affidavit
affidavit is incomplete
(5)
(6)
affidavit is not notarized or is not properly notarized
names in caption do not match names in caption of complaint, petition or
(7)

(8)

application
other:

Complaint or Petition:
is not submitted
(9)
(10)
X
is not on proper form (must use the Court’s current form)
is missing an original signature by the plaintiff/petitioner/applicant
(11)
(12)
is incomplete
(13)
uses et al. instead of listing all parties in caption
(14)
names in caption do not match names in text
(15)
addresses must be provided for all defendants/respondents in “Section A.
Parties” of complaint, petition or habeas application
(16)
X
other: Requested relief as part of claim two and not in the space provided
for. Fails to submit notice-of-right-to-sue letter.
Ms. Wimbish fails to clarify whether she has exhausted administrative remedies.
She fails to attach a notice-of-right-to-sue letter she received from the Equal
Employment Opportunity Commission (EEOC).
To bring a claim under Title VII, a claimant must exhaust his or her administrative
remedies as to each claim of discrimination or retaliation. Shikles v. Sprint/United
Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir. 2005) (noting that exhaustion of
administrative remedies is a jurisdictional prerequisite to suit under Title VII). The first
step to exhaustion is the filing of a charge of discrimination with the EEOC. See Jones
v. Runyon, 91 F.3d 1398, 1399 n.1 (10th Cir.1996) (noting that the EEOC filing is a
jurisdictional requirement). The purposes of the administrative exhaustion requirement
are: “1) to give notice of the alleged violation to the charged party; and 2) to give the
EEOC an opportunity to conciliate the claim.” Ingels v. Thiokol Corp., 42 F.3d 616, 625
(10th Cir.1994), abrogated on other grounds, Martinez v. Potter, 347 F.3d 1208, 1210
(10th Cir.2003). An EEOC charge must contain facts that would prompt an investigation
into the claim at issue. Jones v. UPS, 502 F.3d 1176, 1183-86 (10th Cir.2007). Facts

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supporting each element of a prima facie case of retaliation must be alleged in a charge
in order for a retaliation claim to be exhausted. Id. at 1186. “A plaintiff's claim in federal
court is generally limited by the scope of the administrative investigation that can
reasonably be expected to follow the charge of discrimination submitted to the EEOC.”
MacKenzie v. City and County of Denver, CO., 414 F.3d 1266 (10th Cir.2005).
The amended Title VII Complaint Ms. Wimbish will be directed to file must
comply with the pleading requirements of Rule 8 of the Federal Rules of Civil
Procedure. The twin purposes of a complaint are to give the opposing parties fair notice
of the basis for the claims against them so that they may respond and to allow the court
to conclude that the allegations, if proven, show that the plaintiff is entitled to relief. See
Monument Builders of Greater Kansas City, Inc. v. American Cemetery Ass’n of
Kansas, 891 F.2d 1473, 1480 (10th Cir. 1989). The requirements of Fed. R. Civ. P. 8
are designed to meet these purposes. See TV Communications Network, Inc. v. ESPN,
Inc., 767 F. Supp. 1062, 1069 (D. Colo. 1991), aff’d, 964 F.2d 1022 (10th Cir. 1992).
Specifically, Rule 8(a) provides that a complaint “must contain (1) a short and plain
statement of the grounds for the court’s jurisdiction, . . . (2) a short and plain statement
of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief
sought.” The philosophy of Rule 8(a) is reinforced by Rule 8(d)(1), which provides that
“[e]ach allegation must be simple, concise, and direct.” Taken together, Rules 8(a) and
(d)(1) underscore the emphasis placed on clarity and brevity by the federal pleading
rules. Prolix, vague, or unintelligible pleadings violate the requirements of Rule 8.
Ms. Wimbish must present her claims in a manageable and readable format that
allows the Court and the defendants to know what claims are being asserted and to be
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able to respond to those claims. Ms. Wimbish must allege, simply and concisely, the
jurisdictional basis for this lawsuit and her specific claims for relief, including the specific
rights that allegedly have been violated and the specific acts of each defendant that
allegedly violated her rights. The general rule that pro se pleadings must be construed
liberally has limits and “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).
Ms. Wimbish is warned that, even if the Court dismisses the instant action
without prejudice for failure to comply with this order, the dismissal may bar recovery if
she seeks to refile in this Court because the ninety-day limitations period for filing a Title
VII action may have run on her claims. See 42 U.S.C. § 2000e-5(f)(1) (A claimant has
ninety days to file an action in the district court after receiving a notice of right to sue
from the EEOC).
Accordingly, it is
ORDERED that Plaintiff, Satya Wimbish, cure the deficiencies designated above
and file an amended Title VII Complaint that complies with the pleading requirements of
Rule 8 of the Federal Rules of Civil Procedure within thirty (30) days from the date of
this order. Any papers that Plaintiff files in response to this order must include the civil
action number on this order. It is
FURTHER ORDERED that Plaintiff shall obtain the Court-approved Title VII
Complaint form, along with the applicable instructions, at www.cod.uscourts.gov, and
use that form in submitting the amended Title VII Complaint. It is
FURTHER ORDERED that, if Plaintiff fails to cure the designated deficiencies
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and file an amended Title VII Complaint within thirty (30) days from the date of this
order, the Complaint and the action will be dismissed without further notice. The
dismissal shall be without prejudice.
DATED June 26, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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