Burke v. U.S. Environmental Protection Agency et al

Filing 7

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 11/18/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-02715-BNB
CAROL A. BURKE,
Plaintiff,
v.
U.S. ENVIRONMENTAL PROTECTION AGENCY, and
GINA MCCARTHY, Administrator,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Carol A. Burke, resides in Watkins, Colorado. Plaintiff filed 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). The Court reviewed the documents and
determined they were deficient. Therefore, on October 6, 2014, Magistrate Judge Boyd
N. Boland entered an order (ECF No. 4) directing Ms. Burke to cure certain enumerated
deficiencies in the case and file an amended Title VII Complaint within thirty days if she
wished to pursue her claims.
On October 7, 2014, the Court entered a separate order (ECF No. 5) denying
Ms. Burke’s application to proceed without prepaying fees or costs because she had
sufficient funds to pay the $400.00 filing fee, and allowing her thirty days to pay the filing
fee. The October 7 order warned her that if she failed to pay the filing fee as directed
within thirty days, the Title VII action would be dismissed without further notice.

The

October 6 order to cure and file an amended Title VII Complaint pointed out that Ms.

Burke failed to use and complete all pages of the Court’s current Title VII Complaint
form; failed to sign the Title VII Complaint she submitted; and failed to assert claims,
submit her notice-of-right-to-sue letter if available, and submit a copy of the final agency
decision referenced in the Title VII Complaint. The October 6 order directed that the
amended Title VII Complaint Ms. Burke filed must comply with the pleading
requirements of Rule 8 of the Federal Rules of Civil Procedure.
Ms. Burke was directed to obtain the Court-approved form for filing a Title VII
Complaint and to use that form in curing the designated deficiencies and in filing the
amended Title VII Complaint. She was warned that even if the Court dismissed the
instant action without prejudice for failure to comply with the October 6 order, the
dismissal may bar recovery if she sought to refile in this Court because the ninety-day
limitations period for filing a Title VII action may have run on her claims.
Ms. Burke has failed within the time allowed to cure the designated deficiencies,
file an amended Title VII Complaint as directed, pay the $400.00 filing fee, or otherwise
communicate with the Court in any way. Therefore, the Title VII Complaint will be
denied and the action dismissed without prejudice for Ms. Burke’s failure within the time
allowed to cure the designated deficiencies, file an amended Title VII Complaint as
directed, and pay the $400.00 filing fee, and for her failure to prosecute.
Finally, the Court certifies pursuant to § 1915(a)(3) that any appeal from this
order would not be taken in good faith and therefore in forma pauperis status will be
denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Ms. Burke files a notice of appeal she also must pay the full $505.00
appellate filing fee or file a motion to proceed in forma pauperis in the United States
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Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App.
P. 24.
Accordingly, it is
ORDERED that the Title VII Complaint (ECF No. 1) and the action are dismissed
without prejudice pursuant to Rules 8 and 41(b) of the Federal Rules of Civil Procedure
for the failure of Plaintiff, Carol A. Burke, within the time allowed to cure the designated
deficiencies, file an amended Title VII Complaint as directed in the order of October 6,
2014, and pay the $400.00 filing fee, and for her failure to prosecute. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. It is
FURTHER ORDERED that any pending motions are denied as moot.
DATED at Denver, Colorado, this 18th

day of

November

, 2014.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK
Senior Judge, United States District Court

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