# Brooks v. Wilkie

> District Court, E.D. Missouri · November 23, 2021

URL: https://www.frixlaw.com/law-library/cases/10236077

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** November 23, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10236077

## How later opinions describe it (automated extraction)

- 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”
- 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”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

DEREX BROOKS, )
)
Plaintiff, )
)
v. ) No. 4:21-CV-1326 MTS
)
DEPARTMENT OF VETERANS AFFAIRS, )
)
Defendant. )

MEMORANDUM AND ORDER

This matter comes before the Court on review of plaintiff’s motion for leave to commence
this employment discrimination action without payment of the required filing fee, Doc. [2].
Having reviewed the application and financial information provided, the Court has determined to
grant the motion. See 28 U.S.C. § 1915. 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 under 42 U.S.C. § 1983, 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 self-represented plaintiff’s 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
self-represented 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 self-represented 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 initiated this action on November 9, 2021 by filing an employment discrimination
complaint against defendant Department of Veterans Affairs. Doc. [1]. The complaint is on a
Court-provided form. Plaintiff did not specify the basis of his lawsuit. He did, however, check the
boxes indicating his intention to bring claims of discrimination based on race and disability. The
Court can therefore presume that plaintiff filed his instant complaint pursuant to Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq., for employment discrimination
on the basis of race, and the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. §§
12101, et seq., for discrimination on the basis of a disability.
Plaintiff avers that he filed a charge of discrimination with the Equal Opportunity

Commission (“EEOC”), but he did not attach the charge to his complaint. Plaintiff did file one
page of his Notice of Right-to-Sue Letter, which does not contain the date it was issued, and the
first five pages of defendant’s ‘Final Agency Decision.’ Doc. [4].
Within the section of the form complaint provided for plaintiff to state the facts of his
claim, plaintiff alleges his supervisor, who is “known for targeting African Americans,” defamed
his character. Plaintiff also alleges he was “hit in the throat” by another supervisor and forced to
work in a hostile environment. Although not directly stated, plaintiff appears to be an African
American individual. His disability is post-traumatic stress syndrome which he acquired from his
military service.
For relief, plaintiff seeks reinstatement of his job with defendant, unspecified monetary

compensation, and “to buy back all military time.”
Discussion
The amended complaint is subject to dismissal because plaintiff has not attached the proper
EEOC documents to his complaint, did not specify the federal statute(s) which forms the basis of
his lawsuit, and failed to submit a clear statement of the claim describing how he suffered
employment discrimination on the basis of his race or disability. In consideration of plaintiff’s
self-represented status, the Court will give him the opportunity to file an amended complaint.
If it is plaintiff’s intent to bring the instant action under Title VII and the ADA, “a party
must timely file a charge of discrimination with the EEOC and receive a right-to-sue letter.” Stuart
v. General Motors Corp., 217 F.3d 621, 630 (8th Cir. 2000). See also 42 U.S.C. § 12117(a)
(incorporating by reference 42 U.S.C. § 2000e–5(e)(1) outlining requirements for charge). Title
VII and ADA plaintiffs are required to exhaust their administrative remedies with the EEOC, or
the comparative state agency, before bringing a formal action. Tyler v. Univ. of Ark. Bd. of

Trs., 628 F.3d 980, 989 (8th Cir. 2011); Harris v. P.A.M. Transp., Inc., 339 F.3d 635, 638 (8th Cir.
2003) (failure to exhaust administrative remedies requires dismissal of ADA action, precluding
plaintiff from obtaining review of his ADA claim); Malone v. Ameren UE, No. 4:09-CV-53, 2010
WL 750075 (E.D. Mo. Mar. 2, 2010) (dismissing for failure to exhaust administrative remedies
with respect to his claims of gender and disability discrimination). “Exhaustion of administrative
remedies is central to Title VII’s statutory scheme because it provides the EEOC the first
opportunity to investigate discriminatory practices and enables it to perform its roles of obtaining
voluntary compliance and promoting conciliatory efforts.” Williams v. Little Rock Mun. Water
Works, 21 F.3d 218, 222 (8th Cir. 1994) (citing Patterson v. McLean Credit Union, 491 U.S. 164,
180-81, (1989)).

To exhaust administrative remedies an individual must: (1) timely file
a charge of discrimination with the EEOC setting forth the facts and nature of the charge and (2)
receive notice of the right to sue. 42 U.S.C. § 2000e–5(b), (c), (e). Thus, the Court will provide
plaintiff with the opportunity to provide the Court with complete copies of his charge of
discrimination and his right-to-sue letter to ensure plaintiff has properly exhausted his
administrative remedies and timely filed the instant employment discrimination complaint.
Plaintiff shall not file partial documents as it is imperative for the Court to review the dates such
documents were issued.
Plaintiff’s charge of discrimination and right-to-sue letter must be attached to an amended
complaint on a Court form, which will be provided to him. The amended complaint will replace
the original complaint. E.g., In re Wireless Telephone Federal Cost Recovery Fees Litigation, 396
F.3d 922, 928 (8th Cir. 2005). Plaintiff must comply with the Federal Rules of Civil Procedure,

including Rules 8 and 10. Rule 8 requires plaintiff to set forth a short and plain statement of the
claim showing entitlement to relief, and it also requires that each averment be simple, concise, and
direct. Rule 10 requires plaintiff to state his claims in separately numbered paragraphs, each
limited as far as practicable to a single set of circumstances.
If plaintiff wishes to assert claims under Title VII or the ADA, he must clearly state his
race and disability, and then carefully describe the adverse employment action he believes was
taken and why it amounted to race and disability discrimination. It is not enough to simply check
boxes indicating employment discrimination on the basis of race or disability. To establish a prima
facie case of Title VII discrimination, a plaintiff must show: (1) he is a member of a protected
class; (2) was meeting her employer’s legitimate job expectations; (3) suffered an adverse

employment action; and (4) was treated differently than similarly situated employees who were
not members of his protected class. Jackman v. Fifth Judicial Dist. Dep’t of Corr. Servs., 728 F.3d
800, 804 (8th Cir. 2013) (citation omitted). In order to establish a prima facie case under the ADA,
a plaintiff must demonstrate “(1) he is a disabled person as defined by the ADA, (2) he is qualified
to perform the essential functions of his job with or without reasonable accommodation, and (3)
he suffered an adverse employment action because of his disability.” Higgins v. Union Pac. R.R.
Co., 931 F.3d 664, 669 (8th Cir. 2019) (citation omitted). The claims he asserts in his amended
complaint must be like or reasonably related to the claims outlined in his charge, or they will be
subject to dismissal for failure to exhaust administrative remedies. See Duncan v. Delta
Consolidated Indus., Inc., 371 F.3d 1020, 1024 (8th Cir. 2004).
The Clerk of Court will be directed to provide plaintiff with an employment discrimination
complaint form. Plaintiff will be given thirty days to file an amended complaint along with the

required documents. Upon receipt of the second amended complaint, the Court will review it
pursuant to 28 U.S.C. § 1915(e).
Motion for Appointment of Counsel
Plaintiff has also filed a motion to appoint counsel. Doc. [3]. “A pro se litigant has no
statutory or constitutional right to have counsel appointed in a civil case.” Stevens v. Redwing, 146
F.3d 538, 546 (8th Cir. 1998). 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, the Court considers relevant factors such as the complexity of the

case, the ability of the self-represented litigant to investigate the facts, the existence of conflicting
testimony, and the ability of the self-represented litigant to present his or her claim. Phillips v.
Jasper Cty. Jail, 437 F.3d 791, 794 (8th Cir. 2006).
After considering these factors, the Court finds that the appointment of counsel is
unwarranted at this time. Plaintiff has yet to file a complaint that survives initial review, so it
cannot be said that he has presented non-frivolous claims. Additionally, this case appears to
involve straightforward factual and legal issues, and there is no indication that plaintiff cannot
investigate the facts and present his claims to the Court. The Court will therefore deny the motion
without prejudice, and will entertain future motions for appointment of counsel, if appropriate, as
the case progresses.
Although plaintiff’s motion for appointment of counsel is denied at this time, the Federal
Legal Advice Clinic may be able to provide him with assistance in this matter. Appointments can

be made for a free virtual 30-minute consultation online at www.bamsl.org/federalcourt or by
phone at 855-978-7070. Effective October 7, 2020, all meetings will be scheduled by Zoom
platform. This clinic is not affiliated or related to the United States District Court.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion for leave to proceed in forma
pauperis, Doc. [2], is GRANTED.
IT IS FURTHER ORDERED that the Clerk of Court shall provide to plaintiff, along with
a copy of this Memorandum and Order, a Court form Employment Discrimination Complaint.
IT IS FURTHER ORDERED that plaintiff shall file an amended complaint, in
accordance with the instructions set forth above, no later than thirty (30) days from the date of

this Memorandum and Order. Plaintiff must attach complete copies of his EEOC right-to-sue letter
and charge of discrimination with his amended complaint.
IT IS FURTHER ORDERED that plaintiff’s motion for appointment of counsel, Doc.
[3], is DENIED at this time.
IT IS FURTHER ORDERED that if plaintiff fails to timely file an amended complaint
or fails to comply with the instructions set forth above relating to the filing of the amended
complaint, the Court shall dismiss this action without prejudice.
Dated this 23rd day of November, 2021.
alrHEw T. SCHELP
UNITED STATES DISTRICT JUDGE

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10236077. Public record. Not legal advice.