# Vaughn v. EBO Labs

> District Court, E.D. Missouri · July 14, 2023

URL: https://www.frixlaw.com/law-library/cases/10238970

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** July 14, 2023
- **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/10238970

## How later opinions describe it (automated extraction)

- stating that a “suit for damages against a state official in his official capacity is a suit against the State, and the State is not a person under § 1983”
- 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”
- holding that questions concerning child custody are left entirely to state courts to answer
- stating the court must accept factual allegations in the 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
SOUTHEASTERN DIVISION

TIFFANY VAUGHN, )
)
Plaintiff, )
)
v. ) No. 1:23-cv-79-SNLJ
)
EBO LABS, et al., )
)
Defendants. )

MEMORANDUM AND ORDER
This matter comes before the Court on the motion of self-represented plaintiff Tiffany
Vaughn for leave to commence this civil action without prepayment of the required filing fee. ECF
No. 5. Having reviewed the motion and the financial information submitted in support, the Court
finds it should be granted. See 28 U.S.C. § 1915(a)(1). Additionally, for the reasons discussed
below, the Court will dismiss this action without prejudice.
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
the court must accept factual allegations in the complaint as true, but is not required to “accept as
true any legal conclusion couched as a factual allegation”).

When reviewing a self-represented 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 is a self-represented litigant who has filed the instant ‘Civil Complaint’ against
seven defendants: (1) EBO Labs (“EBO”); (2) Tony Thompson, co-owner of EBO; (3) Cody Tyler,
co-owner and manager of EBO; (4) Kiersten Lamar, employee of EBO; (5) Missouri Children’s
Division (“MCD”); (6) Spring Cook, circuit manager for MCD; and (7) Lisa Bequette, caseworker
for MCD. ECF No. 1. Plaintiff indicates she is bringing this action pursuant to 42 U.S.C. § 1983.
In doing so, she writes:
Plaintiff[’]s claimed violations consist of but are not limited to the following:

45 CFR § 164.524
18 U.S.C. § 1347
RSMO 191.227
18 U.S.C. § 1349
18 U.S.C. § 666
18 U.S.C. § 241
Perjury
Forgery
Interference in Child Custody & Visitation
Violation of rights protected by HIPPA
Conspiracy Against Rights

Id. at 2-3.
Plaintiff alleges EBO contracts with MCD to provide urinalysis and hair follicle testing
services. Plaintiff claims EBO provided false reports to MCD indicating plaintiff tested positive
for illegal drugs when she should have tested negative. Plaintiff further contends that on one
occasion defendant Tyler improperly signed her initials on a chain of custody form relating to a
sample Plaintiff appears to deny was hers. Plaintiff claims defendants EBO, Thompson, and Tyler
attempted to cover up their actions by denying a request for copies of her test results. Plaintiff
asserts all defendants used the false results to ensure she was denied custody and visitation rights
to her three children.
The complaint then provides five specific counts: (1) Count I: Negligence, Wantonness,
and/or Willfulness; (2) Count II: Conspiracy Against Rights in violation of 18 U.S.C. § 241; (3)
Count III: Forgery in violation of 18 U.S.C. § 471; (4) Count IV: HIPPA Rights; and (5) Count V:
Interference in Child Custody and Visitation. ECF No. 1 at 6-8.
Her injuries are described as loss of reputation, employment, custody, visitation,
authoritative image to her children, freedom, time, money, pain, suffering, and psychological
symptoms. Id. at 8-9. For relief, plaintiff seeks compensatory and punitive damages in undisclosed
amounts, court costs, an order “forcing Defendants MCD, Bequette, and Cook [to] notify Scott

County Family Court of said wrongdoing so to correct such on the courts record,” an order “forcing
Defendants EBO, Thompson, Tyler, and Lamar to have a third-party audit and review any/all other
test results that might be brought into question,” an order requiring defendants to be trained
properly, and an order requiring a review of MCD’s policies and procedures. Id. at 10-11.
Discussion
Having carefully reviewed plaintiff’s complaint, the Court finds that the allegations
brought against all defendants fail to state a claim.
The allegations asserted against all seven of the defendants fail to state a claim because
plaintiff does not allege a violation of a right secured by the Constitution and laws of the United
States. Specifically, “a plaintiff must allege sufficient facts to show (1) that the defendant(s) acted

under color of state law, and (2) that the alleged wrongful conduct deprived the plaintiff of a
constitutionally protected federal right.” Zutz v. Nelson, 601 F.3d 842, 848 (8th Cir. 2010). A
plaintiff bringing a § 1983 action must include in the complaint “either direct or inferential
allegations respecting all the material elements necessary to sustain a recovery under some viable
legal theory.” Brooks v. Roy, 776 F.3d 957, 960 (8th Cir. 2015).
Here, although plaintiff brings her complaint pursuant to § 1983, she does not allege the
violation of a right secured by the Constitution and laws of the United States. Plaintiff asserts five
specific counts under 18 U.S.C. § 241; 18 U.S.C. § 471; HIPPA; and Interference in Child Custody
and Visitation. ECF No. 1 at 6-8. “There is no private right of action under HIPAA [45 CFR §
164.524], either via § 1983 or through an implied right of action[.]” Jones v. Davis, 2016 WL
1090629, at *2 (E.D. Mo. Mar. 21, 2016). See also Mod. Orthopaedics of New Jersey v. Horizon
Healthcare Servs., Inc., 2022 WL 3211417, at *4 (D.N.J. Aug. 8, 2022) (there is no private action
for a claim that an individual has a right to access their protected health information). Similarly,

there is no private cause of action under 18 U.S.C. § 241, 18 U.S.C. § 666, 18 U.S.C. § 1347, and
18 U.S.C. § 1349 because they are criminal statutes. See U.S. v. Wadena, 152 F.3d 831, 846 (8th
Cir. 1998) (“Courts have repeatedly held that there is no private right of action under [18 U.S.C.]
§ 241, even though the statute allows federal authorities to pursue criminal charges”); Jason v.
Grp. Health Co-op. Inc., 2013 WL 3070592 (9th Cir. 2013) (“there is no private right of action
under 18 U.S.C. § 1347, which defines a party’s criminal liability for Medicare fraud); Grant v.
Alperovich, 2013 WL 6490596, at *5 (W.D. Wash. Dec. 10, 2013) (“neither 18 U.S.C. § 1347 or
18 U.S.C. § 1349 provides a private right of action”); Myers v. Davenport, 2014 WL 2805278, at
*1 (D. Mass. June 18, 2014) (“there is no authority to permit a private cause of action under this
criminal statute [18 U.S.C. § 666].”). While § 1983 can provide a federal cause of action against a

state actor who deprives an individual of his or her rights under the Constitution or laws of the
United States, plaintiff has not alleged any such deprivation.
As to plaintiff’s claim regarding “interference in child custody and visitation” against
defendants, claims of wrongdoing in conjunction with state court child custody proceedings are
subject to dismissal pursuant to the domestic relations exception to federal jurisdiction. “The
domestic relations exception, first articulated in Barber v. Barber, 62 U.S. 582, 584 (1858), divests
the federal courts of jurisdiction over any action for which the subject is a divorce, allowance of
alimony, or child custody.” Khan v. Khan, 21 F.3d 859, 861 (8th Cir. 1994) (internal citation
amended). Even “when a cause of action closely relates to but does not precisely fit into the
contours of an action for divorce, alimony or child custody, federal courts generally will abstain
from exercising jurisdiction.” Id. This Court cannot change state custodial determinations. See
Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992) (holding that questions concerning child
custody are left entirely to state courts to answer).

Additionally, plaintiff’s official capacity claims against the MCD, caseworker Bequette,
and case circuit manager Cook do not survive initial review because MCD is not a suable entity,
and neither are its employees in their official capacities. “Missouri Children’s Division is a state
entity, and as such it is not a ‘person’ for purposes of § 1983.” Fischer v. Jefferson Cnty. Missouri
Childrens Div., 2017 WL 2813428, at *2 (E.D. Mo. June 29, 2017) (citing Will v. Mich. Dep’t of
State Police, 491 U.S. 58, 71 (1989)). In fact, “neither a State nor its officials acting in their official
capacity are ‘persons’ under § 1983.” Will, 491 U.S. at 71; see also Calzone v. Hawley, 866 F.3d
866, 872 (8th Cir. 2017) (stating that a “suit for damages against a state official in his official
capacity is a suit against the State, and the State is not a person under § 1983”); Veatch v. Bartels
Lutheran Home, 627 F.3d 1254, 1257 (8th Cir. 2010) (“A suit against a government officer in his

official capacity is functionally equivalent to a suit against the employing governmental entity.”).
Therefore, plaintiff’s official capacity claims for monetary damages against MCD, Bequette, and
Cook cannot proceed.
Lastly, as to plaintiff’s official capacity claims against Thompson, Tyler, and Lamar, such
claims also fail. Plaintiff alleges EBO is a private entity that contracts with the State to provide
drug testing services, and Thompson, Tyler, and Lamar are agents of EBO. As noted above, an
official capacity claim against an individual is a claim against that individual’s employer. To
support such a claim, plaintiff “must show that there was a policy, custom, or official action that
inflicted an actionable injury.” See Johnson v. Hamilton, 452 F.3d 967, 973 (8th Cir. 2006). An
actionable injury is one that violates the United States Constitution or federal law. Here, as
discussed above, plaintiff does not allege any facts supporting the existence of an unconstitutional
policy or custom. Instead, plaintiff attempts to hold defendants liable under criminal or HIPPA
statutes where there is no private right of action.
Thus, liberally construing the complaint, plaintiff's allegations against defendants will be
dismissed pursuant to § 1915(e)(2)(B) for failure to state a claim upon which relief can be granted.
Motion to Appoint Counsel
Plaintiff has filed a motion to appoint counsel. ECF No. 2. This motion will be denied as
moot as this action is being dismissed without prejudice.
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in forma pauperis
[ECF No. 5] is GRANTED.
IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel [ECF
No. 2] is DENIED AS MOOT.
IT IS FURTHER ORDERED that this action is DISMISSED without prejudice for
failure to state a claim. A separate Order of Dismissal shall accompany this Memorandum and
Order.
IT IS FURTHER ORDERED that an appeal from this dismissal would not be taken in
good faith.
Dated this 14™ day of July, 2023.
LE q Lf

SENIOR UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10238970. Public record. Not legal advice.