Jefferson v. Krewson

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

DAVID C. JEFFERSON, )

)

Plaintiff, )

)

v. ) No. 4:19-cv-02487-JMB

)

LYDA KREWSON, et al., )

)

)

Defendants. )

MEMORANDUM AND ORDER

This matter comes before the Court on the motion of plaintiff David C. Jefferson for leave

to commence this civil action without prepayment of the required filing fee. (Docket No. 2).

Having reviewed the motion and the financial information submitted in support, the Court finds

that it should be granted. See 28 U.S.C. § 1915(a)(1). Additionally, for the reasons discussed

below, the Court will direct plaintiff to file an amended complaint.

Legal Standard on Initial Review

Under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss a complaint filed in forma

pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted. To

state a claim, a plaintiff must demonstrate a plausible claim for relief, which is more than a “mere

possibility of misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. at 678. Determining whether

a complaint states a plausible claim for relief is a context-specific task that requires the reviewing

court to draw upon judicial experience and common sense. Id. at 679. The court must “accept as

true the facts alleged, but not legal conclusions or threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements.” Barton v. Taber, 820 F.3d 958, 964 (8th Cir.

2016). See also Brown v. Green Tree Servicing LLC, 820 F.3d 371, 372-73 (8th Cir. 2016) (stating

that court must accept factual allegations in complaint as true, but is not required to “accept as true

any legal conclusion couched as a factual allegation”).

When reviewing a pro se complaint under § 1915(e)(2), the Court must give it the benefit

of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). A “liberal construction”

means that if the essence of an allegation is discernible, the district court should construe the

plaintiff’s complaint in a way that permits his or her claim to be considered within the proper legal

framework. Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015). However, even pro se complaints

are required to allege facts which, if true, state a claim for relief as a matter of law. Martin v.

Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980). See also Stone v. Harry, 364 F.3d 912, 914-15 (8th

Cir. 2004) (stating that federal courts are not required to “assume facts that are not alleged, just

because an additional factual allegation would have formed a stronger complaint”). In addition,

affording a pro se complaint the benefit of a liberal construction does not mean that procedural

rules in ordinary civil litigation must be interpreted so as to excuse mistakes by those who proceed

without counsel. See McNeil v. United States, 508 U.S. 106, 113 (1993).

The Complaint

Plaintiff is a pro se litigant who brings this civil action against defendants Lyda Krewson

and Alana C. Green. He assets that the Court has jurisdiction pursuant to the Americans With

Disabilities Act (ADA). (Docket No. 1 at 3).

On August 23, 2019, plaintiff states that “the St. Louis Housing Authority did not perform

an occupancy inspection on…an apartment in which [he is] already being billed, and owe, Ameren

Missouri.” (Docket No 1 at 5). He further states that the Cahill Apartments, a St. Louis Housing

Authority property, required him to go on a waitlist, undergo a credit check, and a criminal record

check “before being considered for actual housing.” Plaintiff notes that he has a “Veterans Affairs

Housing Choice Section 8” voucher and that he is homeless. He also states that he is an

“unemployed, disabled veteran.”

Plaintiff seeks $74,999 in damages.

Discussion

Plaintiff has filed this civil action alleging that the St. Louis Housing Authority did not

perform an occupancy inspection on his apartment on August 23, 2019, and that he has been put

on a waitlist in order to receive housing. Having reviewed the complaint, the Court has determined

that it is subject to dismissal. However, as plaintiff is proceeding pro se, he will be allowed to file

an amended complaint.

A. Deficiencies in Complaint

As noted above, in order to state a claim, a plaintiff must demonstrate a plausible claim for

relief, which is more than a “mere possibility of misconduct.” Ashcroft, 556 U.S. at 679. Plaintiff

has failed to comply with this requirement.

While plaintiff alleges that the St. Louis Housing Authority failed to make an occupancy

inspection on August 23, 2019, he presents no facts to explain what the inspection entailed, or how

the Housing Authority’s failure to conduct the inspection injured him. Similarly, he has not

established why his placement on a St. Louis Housing Authority waitlist is wrongful. “The

essential function of a complaint under the Federal Rules of Civil Procedure is to give the opposing

party fair notice of the nature and basis or grounds for a claim, and a general indication of the type

of litigation involved.” Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir.

2014). The reviewing court looks at the well-pleaded facts in the complaint to determine whether

the pleading party has provided the necessary notice, thus stating a claim in the manner

contemplated by the Federal Rules. Parkhill v. Minnesota Mut. Life Ins. Co., 286 F.3d 1051, 1057-

58 (8th Cir. 2002). Plaintiff has not given the defendants fair notice of the nature and basis or

grounds for his claim. Indeed, he does not provide a single factual allegation against either

defendant Krewson or defendant Green.

Plaintiff contends that this case arises out of the ADA. Title II of the Americans With

Disabilities Act prohibits public entities from disability-based discrimination in services,

programs, or activities. I.Z.M. v. Rosemount-Apple Valley-Eagan Pub. Sch., 863 F.3d 966, 972 (8th

Cir. 2017). The term “public entity” refers to any state or local government, and any department,

agency, or other instrumentality of a state or local government. 42 U.S.C. § 12131.

Here, plaintiff has not stated a claim under the ADA. Even though plaintiff has alleged that

he is disabled, his complaint contains no factual support for the proposition that defendants have

discriminated against him on the basis of this disability. For these reasons, this action is subject to

dismissal for failure to state a claim.

B. Order to Amend

Because plaintiff is proceeding pro se, he will be allowed to amend his complaint according

to the instructions set forth below.

Plaintiff should type or neatly print his amended complaint on the Court’s civil rights form,

which will be provided to him. See E.D. Mo. L.R. 2.06(A) (“All actions brought by self-

represented plaintiffs or petitioners should be filed on Court-provided forms”). If the amended

complaint is handwritten, the writing must be legible. In the “Caption” section of the Court-

provided form, plaintiff should clearly name each and every party he is intending to sue. See Fed.

R. Civ. P. 10(a) (“The title of the complaint must name all the parties”). If there is not enough

room in the caption, plaintiff may add additional sheets of paper. However, all the defendants must

be clearly listed. Plaintiff should fill out the complaint form in its entirety.

In the “Statement of Claim” section, plaintiff should provide a short and plain statement of

the factual allegations supporting his claim. See Fed. R. Civ. P. 8(a). Plaintiff should put each

claim into a numbered paragraph, and each paragraph should be “limited as far as practicable to a

single set of circumstances.” See Fed. R. Civ. P. 10(b).

The amended complaint should only include claims that arise out of the same transaction

or occurrence. In other words, plaintiff should only include claims that are related to each other.

See Fed. R. Civ. P. 20(a)(2). Alternatively, plaintiff may choose a single defendant and set forth

as many claims as he has against that defendant. See Fed. R. Civ. P. 18(a).

In structuring his amended complaint, plaintiff should begin by writing the defendant’s

name. In separate, numbered paragraphs under that name, plaintiff should write a short and plain

statement of the factual allegations supporting his claim against that specific defendant. If plaintiff

is suing more than one defendant, he should follow the same procedure for each defendant.

Plaintiff is required to present factual allegations against each named defendant in this case,

in order that each defendant can receive notice of what he or she is accused of doing. See Topchian,

760 F.3d at 848 (stating that the essential function of a complaint “is to give the opposing party

fair notice of the nature and basis or grounds for a claim”). It is not sufficient to simply name an

individual as a defendant. Rather, plaintiff must provide some indication of what that named

defendant did to harm him.

Plaintiff is warned that the filing of an amended complaint completely replaces the

original complaint. This means that claims that are not re-alleged in the amended complaint will

be deemed abandoned. See In re Wireless Tel. Fed. Cost Recovery Fees Litig., 396 F.3d 922, 928

(8th Cir. 2005) (“It is well-established that an amended complaint supercedes an original complaint

and renders the original complaint without legal effect”).

After receiving the amended complaint, the Court will review it pursuant to 28 U.S.C. §

1915. Plaintiff’s failure to make specific factual allegations against a defendant will result in the

dismissal of that defendant. If plaintiff fails to file an amended complaint on a Court-provided

form within thirty days in accordance with the instructions set forth herein, the Court will dismiss

this action without prejudice and without further notice to plaintiff.

C. Motion for Appointment of Counsel

Plaintiff has filed a motion to appoint counsel (Docket No. 3). In civil cases, a pro se litigant

does not have a constitutional or statutory right to appointed counsel. Ward v. Smith, 721 F.3d 940,

942 (8th Cir. 2013). See also Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1998) (stating that

“[a] pro se litigant has no statutory or constitutional right to have counsel appointed in a civil

case”). Rather, a district court may appoint counsel in a civil case if the court is “convinced that

an indigent plaintiff has stated a non-frivolous claim…and where the nature of the litigation is

such that plaintiff as well as the court will benefit from the assistance of counsel.” Patterson v.

Kelley, 902 F.3d 845, 850 (8th Cir. 2018). When determining whether to appoint counsel for an

indigent litigant, a court considers relevant factors such as the complexity of the case, the ability

of the pro se litigant to investigate the facts, the existence of conflicting testimony, and the ability

of the pro se litigant to present his or her claim. Phillips v. Jasper Cty. Jail, 437 F.3d 791, 794 (8th

Cir. 2006).

After reviewing these factors, the Court finds that the appointment of counsel is not

warranted at this time. Plaintiff has demonstrated, at this point, that he can adequately present his

claims to the Court. Moreover, plaintiff is being ordered to file an amended complaint. The Court

will entertain future motions for appointment of counsel as the case progresses.

Accordingly,

IT IS HEREBY ORDERED that plaintiff’s motion for leave to proceed in forma pauperis

(Docket No. 2) is GRANTED.

IT IS FURTHER ORDERED that plaintiff’s motion for appointment of counsel (Docket

No. 3) is DENIED at this time.

IT IS FURTHER ORDERED that the Clerk of Court shall send to plaintiff a copy of the

Court’s civil rights complaint form.

IT IS FURTHER ORDERED that plaintiff shall have thirty (30) days from the date of

this order in which to file an amended complaint on the Court-form in accordance with the

instructions set forth above.

IT IS FURTHER ORDERED that if plaintiff fails to comply with this order this action

will be dismissed without prejudice and without further notice.

IT IS FURTHER ORDERED that upon the filing of plaintiff’s amended complaint, the

Court will review it pursuant to 28 U.S.C. § 1915.

Dated this 14th day of January, 2020.

/s/ John M. Bodenhausen

JOHN M. BODENHAUSEN

UNITED STATES MAGISTRATE JUDGE