Coger v. Poplar Bluff Police Department

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

SOUTHEASTERN DIVISION

MARK COGER, JR., )

)

Plaintiff, )

)

v. ) No. 1:22-CV-158 RLW

)

POPLAR BLUFF POLICE DEPT., et al., )

)

Defendants. )

MEMORANDUM AND ORDER

This matter is before the Court on the motion of plaintiff Mark Coger, Jr., a former inmate

at Eastern Reception, Diagnostic Correction Center (ERDCC), for leave to commence this action

without payment of the required filing fee. As plaintiff has been released from confinement,1 the

Court will order plaintiff to fill out a new motion to proceed in forma pauperis for non-prisoners.

Further, based on a review of the complaint and plaintiff’s supplemental filing thereto,2 the Court

will order plaintiff to amend his complaint on a Court-provided form within twenty-one (21) days

of the date of this Memorandum and Order.

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,

1Plaintiff filed a change of address notice on December 14, 2022. Plaintiff states that he was

released from confinement on December 6, 2022. Because plaintiff has filed a motion to proceed in forma

pauperis as a prisoner, the Court will deny his motion to proceed in forma pauperis as moot and require him

to file a new motion to proceed without prepayment of fees or costs as a civil litigant showing his inability

to pay the filing fee.

2Plaintiff filed a motion to amend his complaint on December 14, 2022. (ECF No. 6). The Court

will grant plaintiff’s motion and treat the allegations contained in the motion as a supplement to his

complaint.

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.

When reviewing a pro se complaint under 28 U.S.C. § 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).

Plaintiff’s Criminal History

A criminal complaint was filed against plaintiff in Pemiscot County, Missouri, on

September 18, 2012, charging plaintiff with driving while his license was suspended/revoked. See

State v. Coger, No. 12PE-CR01094 (34th Jud. Cir., Pemiscot County Court). An information was

filed on November 26, 2012. Id. On April 16, 2013, plaintiff plead guilty to driving while his

license was suspended/revoked. See State v. Coger, No. 12PE-CR01094-01 (34th Jud. Cir.,

Pemiscot County Court). Plaintiff was sentenced to four years of imprisonment in the Missouri

Department of Corrections with a Suspended Execution of Sentence (SES). He was placed on four

years of supervised probation. Id.

Plaintiff’s probation was revoked on October 15, 2013, and he was sentenced to 120 days

of shock incarceration. See State v. Coger, No. 12PE-CR01094-01 (34th Jud. Cir., Pemiscot County

Court). Plaintiff’s probation was again revoked on September 20, 2016, and he was incarcerated

in the Missouri Department of Corrections for the remainder of his four-year sentence. Id.

A criminal complaint was filed against plaintiff in Pemiscot County, Missouri, on July 3,

2013, charging plaintiff with burglary in the second degree, theft/stealing of a firearm, and

unlawful possession of a firearm. See State v. Coger, No. 13PE-CR00731 (34th Jud. Cir., Pemiscot

County Court). An information was filed on September 17, 2013. Id. On October 15, 2013, plaintiff

pleaded guilty to burglary in the second degree and the other counts of the information were

dismissed. Plaintiff was sentenced to 120 days of shock incarceration, with suspended execution

of a seven-year sentence of imprisonment. See State v. Coger, No. 13PE-CR00731-01 (34th Jud.

Cir., Pemiscot County Court). Plaintiff’s probation was revoked and his seven-year sentence was

imposed on September 20, 2016. Id. Plaintiff’s two-year term of parole supervision began on

November 3, 2021. (Field Violation Report, ECF No. 1-4 at 1).

A criminal complaint was filed against plaintiff in Butler County, Missouri, on August 6,

2020, charging plaintiff with unlawful possession of a firearm. See State v. Coger, No. 20BT-

CR01509 (36th Jud. Cir., Butler County Court). An amended information was filed on April 15,

2021. Id. On July 20, 2021, plaintiff pleaded guilty to the Class D Felony. He was sentenced to

four (4) years imprisonment in the Missouri Department of Corrections (MDOC) on that same

date. See State v. Coger, No. 12BT-CR01509-01 (36th Jud. Cir., Butler County Court).

Plaintiff was released from confinement on November 3, 2021. His two-year term of

supervision began on that same date. (Field Violation Report, ECF No. 1-3 at 1).

The Complaint and Supplemental Complaint

Plaintiff brings this action pursuant to 42 U.S.C. § 1983. He names the following as

defendants in this action: Poplar Bluff Police Department, Cynthia Merriott (Parole Officer),3 and

3Plaintiff spells this Defendant’s last name as “Merriot,” but the attachments to his complaint

the Missouri Board of Probation and Parole. Plaintiff is silent as to the capacity under which he is

suing the defendants.

Plaintiff’s complaint is not on a Court-provided form. His complaint is handwritten and

difficult to read. It appears that plaintiff was arrested on or about September 10, 2022, by officers

of the Poplar Bluff Police Department. In his supplemental complaint and exhibits to his original

complaint, he asserts that the officers of the Poplar Bluff Police Department were following up on

a parole revocation warrant issued by his Missouri Parole Officer, Cynthia Merriott. He does not

indicate why the warrant was issued.

Plaintiff asserts that at the time he was arrested on September 10, 2022, unnamed officers

planted drugs on him and “failed to follow protocol and procedures” for the arrest, although

plaintiff does not state which procedures the unnamed officers failed to follow. He states only that

he was not charged for the “arrest.” The Court has searched Missouri.Case.Net and there is no

indication at this time that plaintiff was formally charged for the September 10, 2022, arrest in

Poplar Bluff, Missouri.

Plaintiff alleges that he was confined for six (6) days at the Butler County Jail on a “parole

hold” from September 10, 2022, until September 16, 2022. He asserts that his parole officer,

Cynthia Merriott, visited him on September 15, 2022, at the Butler County Jail and “made him

aware” that the Poplar Bluff Police Department Officers had found illegal drugs on him on

September 10, 2022. Plaintiff claims that at the time of the arrest, the unnamed Poplar Bluff Police

Officers engaged in an illegal search and seizure of his person and caused him emotional distress

and mental anguish.

Plaintiff has attached to his complaint a copy of his Missouri Board of Probation and Parole

Field Violation Report, completed by Parole Officer Cynthia Merriott. (ECF No. 1-3). The report

indicate the correct spelling of the Defendant’s name is “Merriott.” The Court will use that spelling.

reflects an interview date with plaintiff as of September 14, 2022, at the Butler County Jail. The

report recommends that plaintiff’s parole be revoked because: (1) plaintiff was arrested on

September 10, 2022, for a parole violation warrant and (2) plaintiff was arrested on September 10,

2022, for possession of a controlled substance for having a baggie with a white crystal substance

in his shorts pocket.

In an amended complaint filed by plaintiff on December 14, 2022, plaintiff claims that

Merriott added the drug violation because she:

knew there was a high probability that the plaintiff would not be revoked on a

technical violation and therefore to raise the level of probable cause she

intentionally and knowingly with a total disregard for the truth made a false report

under oath to attempt to raise the level of probable cause with a total disregard for

the truth when she made the false statement that plaintiff had been charged with a

drug offense with the sole purpose of misleading the Missouri Board of Probations

[sic] and Paroles [sic]; and thereby causing the plaintiff to be transported to the

correctional center (prison).

(ECF No. 6 at 3).

Plaintiff also alleges in his supplemental complaint that Merriott’s actions were motivated

by “racial discrimination.” (Id.) He asserts that defendant Merriott “has a disproportionate number

of African-Americans that she has recommended be revoked as opposed to whites.” (Id.) Plaintiff

does not offer any additional factual information in his complaint or supplement other than this

conclusory statement. Plaintiff’s filings do not state what his race is.4

4There is no doubt that prisoners are protected against invidious racial discrimination by the Equal

Protection Clause. See Lee v. Washington, 390 U.S. 333 (1968). However, unequal treatment of “those who

are entitled to be treated alike[] is not a denial of equal protection unless there is shown to be present in it

an element of intentional or purposeful discrimination.” Batra v. Bd. of Regents of Univ. of Neb., 79 F.3d

717, 721 (8th Cir. 1996) (quoting Snowden v. Hughes, 321 U.S. 1, 8 (1944)). “The good faith of [state]

officers and the validity of their actions are presumed; when assailed, the burden of proof is upon the

complaining party.” Sunday Lake Iron Co. v. Wakefield Tp., 247 U.S. 350, 353 (1918) (citations omitted).

A plaintiff’s allegations must show purposeful discrimination – it is not enough for a plaintiff to characterize

an official’s decision as “unequal.” Snowden, 321 U.S. at 10. Here, plaintiff’s only factual allegations in

support of his racial discrimination claim is that more African-American parolees are revoked as compared

to white parolees. However, this is not enough to state an Equal Protection claim of intentional and

purposeful discrimination. A lack of diversity among revoked parolees does not mean that Merriott treated

parolees differently based on their race. Plaintiff does not provide any examples of disparate treatment with

It is unclear which parole violation Merriott had plaintiff arrested for. Merriott notes in her

Field Violation Report that plaintiff was arrested on July 31, 2022, for resisting arrest when officers

were dispatched for a possible assault. Merriott also notes in the Field Violation Report that

plaintiff failed to obtain employment since being released from the Missouri Department of

Corrections on November 3, 2021, and failed to report to Poplar Bluff Community Supervision

Center on several occasions. Last, Merriott noted that plaintiff had been evicted from his residence

and he needed to find a stable place to live. (Field Violation Report, ECF No. 1-3 at 3).

A preliminary hearing relative to plaintiff’s parole revocation was held at ERDCC on

October 7, 2022. Plaintiff was represented by a public defender at the hearing in front of Hearing

Officer Travis Thorne. After reviewing the evidence presented, Hearing Officer Thorne found that

because plaintiff had not been formally charged by the Poplar Bluff Police for the purported drugs

found on September 10, 2022, there was no probable cause for a parole violation of having been

arrested for drugs or of not having obeyed all Missouri laws. However, plaintiff had violated his

conditions of residency and reporting directives, in that he had failed to complete the Community

Supervision Program in Poplar Bluff, and failed to maintain a stable residence and make his

probation officer aware of his residence. Thus, as of October 7, 2022, the Hearing Officer indicated

plaintiff should be kept at ERDCC for his violations of those two directives. (Field Violation

Report, ECF No. 1-4 at 4-5).

For relief in this action, plaintiff seeks monetary damages. He claims that while he was

incarcerated, his apartment was broken into, and he and his wife lost personal belongings. He also

alleges that while he was incarcerated, his wife was evicted from their apartment.5 Plaintiff also

respect to parolees and how they were revoked with respect to their conditions. Plaintiff’s allegations of

racial discrimination are conclusory and lacking in factual support. As currently stated, the complaint and

supplemental pleading fails to state an Equal Protection claim of racial discrimination.

5The Court has reviewed Missouri.Case.Net and found that eviction proceedings were started

sought immediate release from confinement in his complaint. However, as stated above, plaintiff

asserts he was released from confinement on December 6, 2022.

Discussion

As currently pleaded, plaintiff’s complaint is subject to dismissal for the following reasons.

First, plaintiff’s claims against the Missouri Board of Probation and Parole are barred by

sovereign immunity. “Sovereign immunity is the privilege of the sovereign not to be sued without

its consent.” Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 253 (2011). The Eleventh

Amendment has been held to confer sovereign immunity on an un-consenting state from lawsuits

brought in federal court by a state’s own citizens or the citizens of another state. Edelman v.

Jordan, 415 U.S. 651, 662-63 (1974). See also Webb v. City of Maplewood, 889 F.3d 483, 485

(8th Cir. 2018) (“The Eleventh Amendment protects States and their arms and instrumentalities

from suit in federal court”); and Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 618-19 (8th Cir.

1995) (“Generally, in the absence of consent a suit in which the State or one of its agencies or

departments is named as the defendant is proscribed by the Eleventh Amendment”). The Eleventh

Amendment’s immunity bars suit against a state or its agencies for any kind of relief, not merely

monetary damages. See Monroe v. Arkansas State Univ., 495 F.3d 591, 594 (8th Cir. 2007) (stating

that district court erred in allowing plaintiff to proceed against state university for injunctive relief,

and remanding matter to district court for dismissal).

against plaintiff and his girlfriend, Natasha Sedrick, on July 25, 2022, for unpaid rent. See KW Properties,

LLC v. Mark Coger, No. 22BT-CV-1542-01 (36th Jud. Cir., Butler County Court). A default judgment was

entered against plaintiff on August 24, 2022, and a notice to plaintiff to vacate the premises was executed

and hand delivered to plaintiff on September 14, 2022, at the Butler County Jail. Id. Plaintiff filed a motion

to set aside the judgment on August 31, 2022, prior to having his probation revoked. In his motion to set

aside the judgment, he argued that the rental agreement was between his girlfriend and the rental company,

not between he and KW Properties, LLC. Although plaintiff missed the hearing date for his original motion

to set aside the judgment due to his incarceration, he filed a new motion to set aside the judgment on October

7, 2022. The motion is currently pending before Judge John Shock.

There are two “well-established exceptions” to the sovereign immunity provided by the

Eleventh Amendment. Barnes v. State of Missouri, 960 F.2d 63, 64 (8th Cir. 1992). “The first

exception to Eleventh Amendment immunity is where Congress has statutorily abrogated such

immunity by clear and unmistakable language.” Id. The second exception is when a state waives

its immunity to suit in federal court. Id. at 65. A state will be found to have waived its immunity

“only where stated by the most express language or by such overwhelming implications from the

text as will leave no room for any other reasonable construction.” Welch v. Tex. Dep’t of Highways

& Pub. Transp., 483 U.S. 468, 473 (1987). Neither exception is applicable in this case.

The first exception is inapplicable because 42 U.S.C. § 1983 – under which this case arises

– does not revoke a state’s Eleventh Amendment immunity from suit in federal court. See Will v.

Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989) (“We cannot conclude that § 1983 was intended

to disregard the well-established immunity of a State from being sued without its consent”); and

Quern v. Jordan, 440 U.S. 332, 341 (1979) (“[W]e simply are unwilling to believe…that Congress

intended by the general language of § 1983 to override the traditional sovereign immunity of the

States”). The second exception does not apply because the State of Missouri has not waived its

immunity in this type of case. See Mo. Rev. Stat. § 537.600 (explaining that sovereign immunity

is “in effect,” and providing exceptions relating to the “negligent acts or omissions by public

employees arising out of the operation of motor vehicles…within the course of their employment,”

and regarding “[i]njuries caused by the condition of a public entity’s property”).

In this case, as previously noted, plaintiff has named the Missouri Board of Probation and

Parole as a defendant in this action. The Board is an agency of the State of Missouri, meaning that

it is protected from suit by the Eleventh Amendment’s grant of sovereign immunity. This immunity

bars suit for any type of relief, be it monetary or injunctive. Furthermore, no exceptions to

sovereign immunity are applicable.

Next, the Court notes that plaintiff has not made any specific allegations of wrongdoing by

defendant parole officer, Cynthia Merriott, in the body of his complaint. Rather, the only

allegations in the body of his complaint against Cynthia Merriott are that Merriott “made him

aware” that the Poplar Bluff Police Department had found illegal drugs on him on the 10th day of

September.

“Where a complaint alleges no specific act or conduct on the part of the defendant and the

complaint is silent as to the defendant except for [her] name appearing in the caption, the complaint

is properly dismissed.” Potter v. Clark, 497 F.2d 1206, 1207 (7th Cir. 1974). Even if plaintiff had

included specific allegations against defendant Merriott, a defendant employed by the State of

Missouri, plaintiff’s § 1983 damage claims against her, acting in her official capacity, would be

barred, either by the Eleventh Amendment or because, in such capacity, she is not a “person”

capable of being sued. See Murphy v. Arkansas, 127 F.3d 750, 754 (8th Cir. 1997). See Will v.

Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) (“[s]tate officers sued for damages in their

official capacity are not ‘persons’ for purposes of the suit because they assume the identity of the

government that employs them.”).

The Court is aware that in the supplement to the complaint plaintiff asserts that defendant

Merriott attempted “to raise the level of probable cause” on his revocation by including the drug

charge on the revocation report. However, in Heck v. Humphrey, the United States Supreme Court

held that:

In order to recover damages for allegedly unconstitutional conviction or

imprisonment, or for other harm caused by action whose unlawfulness would

render a conviction or sentence invalid, a § 1983 plaintiff must prove that the

conviction or sentence has been reversed on direct appeal, expunged by executive

order, declared invalid by a state tribunal authorized to make such determination,

or called into question by a federal court’s issuance of a writ of habeas corpus, 28

U.S.C. § 2254.

512 U.S. 477, 486-87 (1994).

Judgment in favor of plaintiff on his assertions against Merriott as contained in the

supplement would “necessarily imply the invalidity” of his revocation. Without plaintiff showing

that his revocation has been “reversed, expunged, validated or called into question by either an

executive order or a state or federal tribunal, a § 1983 action is not cognizable at this juncture.”

Dolney v. Lahammer, 70 F.Supp.2d 1038, 1040 (D.S.D. 1999); Heck, 512 U.S. at 486-87; see also

White v. Gittens, 121 F.3d 803 (1st Cir. 1997) (barring § 1983 claim for damages and declaratory

relief regarding state decision to revoke parole); Butterfield v. Bail, 120 F.3d 1023 (9th Cir. 1997)

(prohibiting § 1983 damage action challenging state parole ineligibility decision); Crow v. Penry,

102 F.3d 1086 (10th Cir. 1996) (claim that parole revocation was invalid based upon false

statements made in parole violation warrant and general due process violations associated with

revocation of parole “necessarily implies the invalidity of his parole revocation” and therefore is

cognizable only in habeas corpus); Burkett v. Love, 89 F.3d 135 (3d Cir. 1996) (ordering dismissal

based on failure to exhaust state remedies of prisoner’s claim that parole was denied in retaliation

for prior successful habeas petition); McGrew v. Texas Bd. of Pardons & Paroles, 47 F.3d 158

(5th Cir. 1995) (“an action attacking the validity of parole proceedings calls into question the fact

and duration of confinement” and therefore must be brought as a petition for writ of habeas

corpus); Schafer v. Moore, 46 F.3d 43 (8th Cir. 1995) (dismissing prisoner’s challenge to denial

of state parole).

Next, plaintiff’s claims against the Poplar Bluff Police Department are subject to dismissal,

as the Poplar Bluff Police Department is a department or subdivision of local government and not

a juridical entity suable as such. Ketchum v. City of West Memphis, Ark., 974 F.2d 81, 82 (8th Cir.

1992) (affirming dismissal of West Memphis Police Department and West Memphis Paramedic

Services because they were “not juridical entities suable as such”). See also Owens v. Scott Cnty.

Jail, 328 F.3d 1026, 1027 (8th Cir. 2003) (stating that “county jails are not legal entities amenable

to suit”); and De La Garza v. Kandiyohi Cnty. Jail, 18 F. App’x 436, 437 (8th Cir. 2001) (affirming

district court dismissal of county jail and sheriff’s department as parties because they are not suable

entities).

Finally, plaintiff’s supplement names Corporal Nance of the Poplar Bluff Police

Department as a defendant, but the supplement contains no factual allegations about any acts or

conduct by Corporal Nance. “Where a complaint alleges no specific act or conduct on the part of

the defendant and the complaint is silent as to the defendant except for his name appearing in the

caption, the complaint is properly dismissed.” Potter, 497 F.2d at 1207.

Despite these defects, the Court will allow plaintiff an opportunity to amend his complaint

to fully set forth his claims for relief.

Instructions for Amending the Complaint

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

original complaint and all supplements, and so it must include all claims plaintiff wishes to bring.

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 supersedes an original complaint and renders the

original complaint without legal effect”). Any claims from the original complaint or any

supplements that are not included in the amended complaint will be deemed abandoned and will

not be considered. Id. Plaintiff must type or neatly print the amended complaint on the Court-

provided prisoner civil rights complaint form, and the amended complaint must comply with the

Federal Rules of Civil Procedure. See E.D. Mo. L.R. 2.06(A). Plaintiff is advised that the Court

will not accept any additional supplements or correspondence that contain separate claims.

All such supplements or correspondence will be stricken from the record by this Court and

will not be considered.

The Federal Rules of Civil Procedure require litigants to formulate their pleadings in an

organized and comprehensible manner. Even self-represented litigants are obligated to abide by

the Federal Rules of Civil Procedure and to plead specific facts as to each named defendant. See

United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994). Plaintiff is required to set out his claims

in a simple, concise, and direct manner, and must include the facts supporting his claims as to each

named defendant. See Fed. R. Civ. P. 8(a)(2) (complaint should contain short and plain statement

of claims); 8(d)(1) (each claim shall be simple, concise, and direct); and 10(b) (parties are to

separate their claims within their pleadings and the contents of which shall be limited as far as

practicable to a single set of circumstances). Plaintiff should fill out the complaint form in its

entirety.

In the “Caption” section of the complaint form, plaintiff must state the first and last name,

to the extent he knows it, of the defendant or defendants he wants 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 also indicate whether he intends to sue each defendant in his or her individual

capacity, official capacity, or both. Plaintiff should avoid naming anyone as a defendant unless

that person is directly related to his claim(s).

In the “Statement of Claim” section, plaintiff should begin by writing a defendant’s name.

In separate, numbered paragraphs under that name, plaintiff should write the specific facts

supporting his claim or claims against that defendant. If plaintiff is suing more than one defendant,

he should proceed in the same manner with each one, separately writing each individual

defendant’s name and, under that name, in numbered paragraphs, the factual allegations supporting

his claim or claims against that defendant. Plaintiff should only include claims that arise out of the

same transaction or occurrence, or simply put, 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 him or her. See Fed. R. Civ. P. 18(a). Plaintiff’s failure to make specific

factual allegations against any defendant will result in that defendant’s dismissal. Further, the

Court emphasizes that the “Statement of Claim” requires more than “labels and conclusions or a

formulaic recitation of the elements of a cause of action.” See Neubauer v. FedEx Corp., 849 F.3d

400, 404 (8th Cir. 2017).

If plaintiff is suing a defendant in an individual capacity, he is required to allege facts

demonstrating the personal responsibility of the defendant for harming him. Madewell v. Roberts,

909 F.2d 1203, 1208 (8th Cir. 1990) (stating that § 1983 liability “requires a causal link to, and

direct responsibility for, the deprivation of rights”). It is not enough for plaintiff to refer to a group

of defendants and make general allegations against them. Instead, plaintiff must explain the role

of each defendant so that each defendant will have notice of what he or she is accused of doing or

failing to do. See Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014)

(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.”).

If plaintiff fails to file an amended complaint on a Court-provided form within twenty-one

(21) days in accordance with the instructions set forth herein, the Court may dismiss this action

without prejudice and without further notice to plaintiff.

Motion for Appointment of Counsel

Plaintiff has filed a motion to appoint counsel in this action. [ECF No. 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 Cnty. 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. 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,

particularly as he is no longer confined. The Court will therefore deny the motion without prejudice

and will entertain future motions for appointment of counsel, if appropriate, as the case progresses.

Motion for Emergency Injunction/Restraining Order

Plaintiff also filed a motion that seeks a mandatory injunction to “immediately release”

him from confinement. As plaintiff has already been released from confinement, his request for

injunctive relief is moot.

Accordingly,

IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis (ECF

No. 2) is DENIED at this time as plaintiff has been released from confinement.

IT IS FURTHER ORDERED that the Clerk shall provide plaintiff with a copy of a form

“Application to Proceed in District Court without Paying Fees or Costs” for civil litigants (non-

prisoners).

IT IS FURTHER ORDERED that, by January 6, 2023, plaintiff shall file a completed

form “Application to Proceed in District Court without Paying Fees or Costs” for civil litigants

(non-prisoners).

IT IS FURTHER ORDERED that plaintiff's motion to amend his complaint (ECF No.

6) is GRANTED.

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

of the Court’s Prisoner Civil Rights Complaint form.

IT IS FURTHER ORDERED that, by January 6, 2023, plaintiff shall file an amended

complaint on the Court’s Prisoner Civil Rights Complaint form and in compliance with the Court’s

instructions.

IT IS FURTHER ORDERED plaintiff's request for appointment of counsel (ECF No. 3)

is DENIED at this time.

IT IS FURTHER ORDERED that plaintiffs motion for emergency injunction and

restraining order (ECF No. 4) is DENIED as moot, as plaintiff has been released from

confinement.

IT IS FURTHER ORDERED that after submission of the amended complaint, the Court

will review the pleading pursuant to 28 U.S.C. § 1915 for frivolousness or maliciousness, and for

failure to state a claim.

IT IS FURTHER ORDERED that plaintiffs failure to timely and fully comply with this

Order shall result in the dismissal of this action, without prejudice and without further notice.

RONNIE L. WHITE

UNITED STATES DISTRICT JUDGE

Dated this 16th day of December, 2022