# Thurman v. Rug Doctor

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

URL: https://www.frixlaw.com/law-library/cases/10239128

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** August 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/10239128

## 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”
- explaining that the presence of subject matter jurisdiction is a threshold requirement that must be assured in every federal case
- stating that “while ordinarily, only the facts alleged in the complaint are considered in determining whether it states a claim, materials attached to the complaint as exhibits may be considered in construing the sufficiency of the 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”
- explaining that “the district court was required to consider the allegations not only in [plaintiff’s] pro se complaint, but also in his motion to amend, his response to defendants’ motion to dismiss, and the attachments to those pleadings”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

BENJAMIN THURMAN, )
)
Plaintiff, )
)
v. ) No. 4:23-cv-00659-SPM
)
RUG DOCTOR, )
)
Defendant. )

MEMORANDUM AND ORDER
This matter comes before the Court on the motions of plaintiff Benjamin Thurman for leave
to commence this civil action without prepayment of the required filing fees. (Docket No. 3;
Docket No. 7). Having reviewed the motions, the Court finds that they 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
avoid dismissal, 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 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). 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 Original Complaint
Plaintiff is a self-represented litigant who filed an employment discrimination complaint
on May 17, 2023. (Docket No. 1). In the complaint, he names Rug Doctor as the sole defendant.
The complaint is on a Court-provided form, and is brought under Title VII of the Civil Rights Act
of 1964 (Title VII).
With regard to his statement of claim, plaintiff asserts that he has been discriminated
against on the basis of his race and color, and that he has been terminated from his employment,
harassed, and suffered retaliation. (Docket No. 1 at 4-5). Specifically, he states that on September
28, 2020, he was hired by Rug Doctor as a repair technician. (Docket No. 1 at 5). On September
29, 2021, he alleges that he “was going over documents at work and [noticed that] someone wrote
a racially insensitive term on one of [his] documents.” Plaintiff further claims that he was subjected

“to sly personal slur words behind [his] back by [his] coworkers.” He was eventually “written up
and discharged for being disruptive,” but he alleges that he was actually “harassed and discharged
because of [his] race.” Plaintiff concludes by stating that he is “being surreptitiously stalked and
harassed.” (Docket No. 1 at 6).
Concerning relief, plaintiff states that he wants to “sue this company so” that he is “no
longer . . . being surreptitiously stalked, and harassed.” (Docket No. 1 at 7).
On June 5, 2023, the Court received from plaintiff a “Memorandum for Clerk,” which
contained exhibits in support of his complaint. (Docket No. 5). The Court has reviewed the exhibits
and will treat them as part of the pleadings.1
The first exhibit is a Charge of Discrimination filed with the Equal Employment

Opportunity Commission (EEOC) and the Missouri Commission on Human Rights. (Docket No.
5 at 2). In the charge, plaintiff states that he was hired as a repair technician on September 28,
2020, and was harassed and discharged because of his race, which is African American. More
particularly, he asserts that while going over work documents, he noticed that someone had written
“a racially insensitive term on one of the documents,” and that he was “subjected to words behind

1 See Fed. R. Civ. P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is part of the pleading for
all purposes”). See also Reynolds v. Dormire, 636 F.3d 976, 979 (8th Cir. 2011) (stating that “while ordinarily, only
the facts alleged in the complaint are considered in determining whether it states a claim, materials attached to the
complaint as exhibits may be considered in construing the sufficiency of the complaint”); and Pratt v. Corrections
Corp. of America, 124 Fed. Appx. 465, 466 (8th Cir. 2005) (explaining that “the district court was required to consider
the allegations not only in [plaintiff’s] pro se complaint, but also in his motion to amend, his response to defendants’
motion to dismiss, and the attachments to those pleadings”).
[his] back by [his] coworkers.” Plaintiff concludes that his discharge came about due to his race,
in violation of Title VII.
The second exhibit is a document in which plaintiff claims that he is being surreptitiously
stalked due to workplace retaliation. (Docket No. 5 at 3). He alleges that “[t]hey are trying

everything they can to harass, coerce, convince, manipulate, [and] annoy” him, and are trying to
make it look like he has “a mental health problem.” Plaintiff asserts that his “privacy has been
invaded,” and that before his termination at Rug Doctor, he “was targeted,” and his “personal
information . . . displayed behind [his] back in a sly, sneaky, surreptitious way.”
Plaintiff states that on September 29, 2021, he “received a work document with [a] racist
slur written on it.” When he showed this to a manager, he “was told to disregard it.” According to
plaintiff, over the course of two years, he was harassed, moved around, given bad performance
write-ups, and ultimately terminated. Before his termination, plaintiff states that his “brother ended
up dead.” He suggests the involvement of a coworker, stating that at the time of his brother’s death,
this unnamed individual – who did not like plaintiff – took vacation, and later returned clean

shaven and with a haircut, “as if he had gotten away with something.”
Following his termination, plaintiff states that he paid an attorney to send Rug Doctor “a
service letter to review the incident.” He states that he received a postcard in return, but no court
date.
Plaintiff asserts that he has begun hearing “personal, sexual, and racial slur words in [his]
apartment and at [his] other jobs.” These are the same words said behind his back at Rug Doctor.
According to plaintiff, these words are “[i]n the voice of Joe Wright, and Joshua Laughlin.”
Because of the “noise campaign and the voices,” plaintiff left his apartment and moved in with his
sister. He later checked himself into SSM Health. During his time there, plaintiff asserts that he
did not hear any voices, but that when he returned to work he heard “the main two guy voices
coercing, harassing, manipulating, annoying and creating negative thought patterns.” These voices
continued to follow plaintiff throughout his next three jobs.
Since moving into his new apartment, plaintiff has heard these voices, found graffiti of his

brother’s name, and KKK symbols around his home. He also accuses an elderly neighbor of giving
him the middle finger.
The third exhibit is a series of pictures, including: a Rug Doctor checklist with the word
“noose” on it; several shots of a Rug Doctor disciplinary form; apparent graffiti on a roadside
barrier; a U.S. Postal Service form; and a side-by-side photograph of the two individual defendants.
(Docket No. 5 at 4-11).
The fourth exhibit is an instructional form for QuWave Defender, which is marketed as a
device to guard “targeted individuals” against electromagnetic frequencies. (Docket No. 5 at 12).
The fifth exhibit is a picture of the QuWave device. (Docket No. 5 at 13).
The final exhibit is a blurry photograph that the Court cannot identify. (Docket No. 5 at

14).
The Amended Complaint
On June 6, 2023, before the Court could review plaintiff’s employment discrimination
action under 28 U.S.C. § 1915, plaintiff filed an amended complaint. (Docket No. 6). The amended
complaint is on a Court-provided civil complaint form, and names Rug Doctor, Joe Wright, and
Joshua Laughlin as defendants. (Docket No. 6 at 2). Instead of bringing his amended complaint
under Title VII, plaintiff asserts that the Court has federal question jurisdiction under the “Invasion
of Privacy Act, Wiretap Act, Electronic Communications Privacy Act, [and] Foreign Intelligence
Surveillance Act.” (Docket No. 6 at 3).
The “Statement of Claim” consists of the previously-submitted exhibit—described in detail
above—in which plaintiff alleges that he is being stalked, that a coworker has something to do
with his brother’s death, that he is hearing the voices of two men following him around, and that
he is being deliberately targeted. (Docket No. 6 at 5). Based on these assertions, plaintiff seeks

“full compensation for the life of [his] brother,” as well as for “depression, mental distress,
defamation, [and] relief from surreptitious stalking, targeting, harassment, [coercion], [and]
manipulation.” (Docket No. 6 at 6).
Discussion
Plaintiff is a self-represented litigant who has filed an employment discrimination
complaint under Title VII, and an amended complaint containing unrelated allegations of stalking
and invasion of privacy. Because he is proceeding in forma pauperis, the Court has reviewed
plaintiff’s complaints under 28 U.S.C. § 1915. Based on this review, the Court has determined that
the amended complaint is deficient and subject to dismissal. However, the Court will give plaintiff
the opportunity to file a second amended complaint.

A. Deficiencies in Amended Complaint
As noted above, plaintiff initiated this civil action by filing an employment discrimination
complaint, asserting that he had been terminated from his job due to his race. Subsequently, he
filed an amended complaint containing entirely different factual allegations about two individuals
harassing and stalking him. “It is well-established that an amended complaint supercedes an
original complaint and renders the original complaint without legal effect.” See In re Wireless Tel.
Fed. Cost Recovery Fees Litig., 396 F.3d 922, 928 (8th Cir. 2005). Thus, the amended complaint
is the operative pleading.
The amended complaint is deficient and subject to dismissal for three reasons. First,
plaintiff has not demonstrated that the Court has subject matter jurisdiction. See Kronholm v. Fed.
Deposit Ins. Corp., 915 F.2d 1171, 1174 (8th Cir. 1990) (explaining that the presence of subject
matter jurisdiction is a threshold requirement that must be assured in every federal case).

Regarding a federal question, plaintiff has listed a number of statutes, but has not shown that any
of them are relevant to this action, or that they even provide a right of action against these particular
defendants. See Williams v. Ragnone, 147 F.3d 700, 702 (8th Cir. 1998) (explaining that to show
federal question jurisdiction, the complaint must establish “either that federal law creates the cause
of action or that the plaintiff’s right to relief necessarily depends on the resolution of a substantial
question of federal law”).
As to diversity jurisdiction, plaintiff has not shown that the parties are diverse. See
OnePoint Solutions, LLC v. Borchert, 486 F.3d 342, 346 (8th Cir. 2007) (“Complete diversity of
citizenship exists where no defendant holds citizenship in the same state where any plaintiff holds
citizenship”).

The burden of proving subject matter jurisdiction belongs to the plaintiff. V S Ltd. P’ship
v. Dep’t of Hous. & Urban Dev., 235 F.3d 1109, 1112 (8th Cir. 2000). Plaintiff has not carried this
burden.
Second, plaintiff has failed to state a claim against defendants. To state a claim, plaintiff
must provide factual allegations that are sufficient “to raise a right to relief above the speculative
level.” See Torti v. Hoag, 868 F.3d 666, 671 (8th Cir. 2017). “While all pleadings are to be
construed to do substantial justice . . . the pleading must at a minimum be sufficient to give the
defendant notice of the claim.” Tatum v. Iowa, 822 F.2d 808, 810 (8th Cir. 1987).
In this case, plaintiff’s allegations do not provide any indication as to what defendants did
or did not do to harm him. Instead, he relies on unsupported assertions that have no basis in fact,
and that border on the frivolous. As such, plaintiff has not raised his right to relief above the
speculative level, and he has not given defendants notice of the basis of the claims against them.

Third, to the extent that plaintiff’s original complaint and amended complaint are meant to
be read together, the Court notes that plaintiff has inappropriately joined together unrelated claims.
Rule 20(a)(2) of the Federal Rules of Civil Procedure governs joinder of defendants, and provides:
Persons . . . may be joined in one action as defendants if: (A) any
right to relief is asserted against them jointly, severally, or in the
alternative with respect to or arising out of the same transaction,
occurrence, or series of transactions or occurrences; and (B) any
question of law or fact common to all defendants will arise in the
action.

Fed. R. Civ. P. 20(a)(2). While joinder of claims, parties, and remedies are encouraged under the
Federal Rules of Civil Procedure, permissive joinder is not applicable in all cases. Mosely v.
General Motors Corp., 497 F.2d 1330, 1333 (8th Cir. 1974). In particular, there are two specific
requisites for joinder, including the requirement that the asserted right to relief against each
defendant must arise out of the same transaction or occurrence. Id. As such, a plaintiff cannot join,
in a single lawsuit, multiple claims against different defendants related to events arising out of
different transactions or occurrences. In other words: “Claim A against Defendant 1 should not be
joined with unrelated Claim B against Defendant 2.” George v. Smith, 507 F.3d 605, 607 (7th Cir.
2007).
Here, plaintiff’s original complaint is an employment discrimination action against his
former employer under Title VII, in which plaintiff contends that he lost his job due to racial
discrimination. The amended complaint, on the other hand, suggests that two individuals are using
their voices to harass and stalk plaintiff. These two claims are unrelated.
For all of these reasons, plaintiff’s amended complaint is subject to dismissal.
B. Order to Amend
Rather than dismiss this action, the Court will give plaintiff an opportunity to file a second
amended complaint, according to the instructions set forth below.

Plaintiff should type or neatly print his second amended complaint on the Court’s
employment discrimination 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 second 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. In any event, all the defendants must be clearly listed. The Court notes, however,
that if plaintiff is bringing an action under Title VII, he should only name his employer as
defendant, and not individual supervisors or coworkers. See Powell v. Yellow Book USA, Inc.,
445 F.3d 1074, 1079 (8th Cir. 2006) (“Title VII addresses the conduct of employers only and does

not impose liability on co-workers”).
Plaintiff should put his case number in the appropriate location on the upper right-hand
section of the first page. He should then fill out the complaint form in its entirety – following the
instructions on the form – and ensure that it is signed. See Fed. R. Civ. P. 11(a).
The second amended complaint should contain 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). As previously discussed, the second 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).
Plaintiff will be given thirty days in which to file his second amended complaint on the
Court-provided form. If plaintiff does not submit a second amended complaint within thirty days,

in accordance with the instructions set forth above, the Court will dismiss this action without
prejudice and without further notice.
C. Motion to Appoint Counsel
Plaintiff has filed a motion to appoint counsel. (Docket No. 2). 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). 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. Specifically, as discussed above, the Court has determined that the instant
action is subject to dismissal, and has ordered plaintiff to file a second amended complaint. The
Court will entertain future motions for appointment of counsel as the case progresses.
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motions for leave to proceed in forma
pauperis (Docket No. 3; Docket No. 7) are GRANTED.
IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel (Docket
No. 2) is DENIED at this time.
IT IS FURTHER ORDERED that the Clerk of Court shall send to plaintiff a copy of the
Court’s employment discrimination form.
IT IS FURTHER ORDERED that plaintiff shall file a second amended complaint on the
Court-provided form within thirty (30) days of the date of this order, in accordance with the
instructions set forth above.
IT IS FURTHER ORDERED that if plaintiff fails to file a second amended complaint on
the Court-provided form within thirty (30) days of the date of this order, in accordance with the
instructions set forth above, the Court will dismiss this action without prejudice and without further
notice.
IT IS FURTHER ORDERED that upon receipt of plaintiff's second amended complaint,
the Court will review it pursuant to 28 U.S.C. § 1915.

NL, 2012
SHIRLEY P. MENSAH
UNITED STATES MAGISTRATE JUDGE
Dated this August 14, 2023.

1]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10239128. Public record. Not legal advice.