Martin v. MSMU Online

Filing 7

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 6/2/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00589-LTB
YOHONIA MARTIN,
Plaintiff,
v.
MSMU ONLINE,
Defendant.

ORDER OF DISMISSAL

On April 23, 2015, Plaintiff, Yohania Martin, 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) asserting discrimination, sexual harassment, and retaliation on
the basis of race and color. On April 30, 2015, this Court granted Plaintiff’s Application
to Proceed in District Court Without Prepaying Fees or Costs (ECF No. 5). As part of
the Court’s review pursuant to D.C.COLO.LCivR 8.1, the Court determined that the
submitted documents were deficient and directed Plaintiff to cure if she wished to
pursue her claims. Specifically, Magistrate Judge Gordon P. Gallagher ordered Plaintiff
to respond within thirty days and show cause why jurisdiction is proper under Title VII
because Plaintiff had failed to show that she had exhausted her discrimination claim or
provide a Notice of Right to Sue from the EEOC showing exhaustion (ECF No. 4).
Although Plaintiff responded to the Order to Show Cause within the time allowed (ECF
No. 6), she failed to provide any allegations or evidence that she has exhausted her
administrative remedies.

The Court may raise subject matter jurisdiction sua sponte at any time during the
course of the proceedings. McAlester v. United Air Lines, Inc., 851 F.2d 1249, 1252
(10th Cir. 1988). Under Title VII of the Civil Rights Act of 1964, the exhaustion of
administrative remedies is a jurisdictional prerequisite to instituting an action in federal
court. See Jones v. Runyon, 91 F.3d 1398, 1399 (10th Cir. 1996), cert denied, 520 U.S.
1115 (1997); see also Sizova v. Nat’l Inst. of Standards & Tech., 282 F.3d 1320, 1325
(10th Cir. 2002) (noting that “a failure to file an administrative charge at all . . . is a
jurisdictional bar”) (citing Jones, 91 F.3d at 1399 n.1). The failure to file an
administrative Title VII claim before bringing suit is jurisdictionally fatal and requires
dismissal. See Bertsch v. Overstock.com, 684 F.3d 1023, 1030 (10th Cir. 2012); Shikles
v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir. 2005).
“The party seeking to invoke the jurisdiction of a federal court must demonstrate
that the case is within the court’s jurisdiction.” United States v. Bustillos, 31 F.3d 931,
933 (10th Cir. 1994). Because Plaintiff has failed to do so the action will be dismissed.
Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
from this Order is not 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 Plaintiff files a notice of appeal she must also pay the full $505 appellate filing
fee or file a motion to proceed in forma pauperis in the United States Court of Appeals
for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
Accordingly, it is
ORDERED that the Complaint and the action are DISMISSED WITHOUT
PREJUDICE pursuant to Fed. R. Civ. P. 12(h)(3). It is

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FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED at Denver, Colorado, this

2nd

day of June, 2015.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
UNITED STATES DISTRICT COURT

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