Diaz v. Burlington Coat Factory
Filing
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ORDER DIRECTING PLAINTIFF TO CURE DEFICIENCIES AND FILE AMENDED TITLE VII COMPLAINT by Magistrate Judge Boyd N. Boland on 8/11/14. Plaintiff is ordered to cure the deficiencies and file an amended complaint within thirty days from the date of this order. (bsimm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02221-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.)
CARLOS DIAZ,
Plaintiff,
v.
BURLINGTON COAT FACTORY,
Defendant.
ORDER DIRECTING PLAINTIFF TO CURE DEFICIENCIES AND
FILE AMENDED TITLE VII COMPLAINT
Plaintiff, Carlos Diaz, has submitted pro se an Application to Proceed in District
Court Without Prepaying Fees or Costs (ECF No. 3) and a Title VII Complaint (ECF No.
1) pursuant to Title VII asserting discrimination, sexual harassment, and retaliation on
the basis of race and color. 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 he wishes to pursue his
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:
(1)
is not submitted
(2)
is not on proper form (must use the Court’s current form)
is missing original signature by plaintiff/petitioner/applicant
(3)
(4)
is missing affidavit
affidavit is incomplete
(5)
(6)
(7)
(8)
affidavit is not notarized or is not properly notarized
names in caption do not match names in caption of complaint, petition or
application
other:
Complaint or Petition:
is not submitted
(9)
(10)
is not on proper form (must use the Court’s current form)
(11)
is missing an original signature by the plaintiff/petitioner/applicant
(12)
is incomplete
(13)
uses et al. instead of listing all parties in caption
names in caption do not match names in text
(14)
(15)
addresses must be provided for all defendants/respondents in “Section A.
Parties” of complaint, petition or habeas application
other: Failed to assert claims or make request for relief in the spaces
(16)
X
provided. Failed to submit notice-of-right-to-sue letter as directed on page
2, ¶ 8, and page 3.
Mr. Diaz fails to assert any claims and/or attach a notice-of-right-to-sue letter, if
available, he alleges he received from the Equal Employment Opportunity Commission
(EEOC) on May 14, 2014. He also fails to request any relief.
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
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into the claim at issue. Jones v. UPS, 502 F.3d 1176, 1183-86 (10th Cir.2007). Facts
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 Mr. Diaz 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.
Mr. Diaz must present his claims in a manageable and readable format that
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allows the Court and the defendants to know what claims are being asserted and to be
able to respond to those claims. Mr. Diaz must allege, simply and concisely, his specific
claims for relief, including the specific rights that allegedly have been violated and the
specific acts of each defendant that allegedly violated his 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).
Even if the Court dismisses the instant action without prejudice for failure to
comply with this order, the dismissal may bar recovery if Mr. Diaz seeks to refile in this
Court because the ninety-day limitations period for filing a Title VII action may have run
on his 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, Carlos Diaz, 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 Title VII Complaint and the action will be dismissed without further notice.
The dismissal shall be without prejudice.
DATED August 11, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
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