# Thurman v. Rug Doctor

> District Court, E.D. Missouri · September 19, 2023

URL: https://www.frixlaw.com/law-library/cases/10239288

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** September 19, 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/10239288

## 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 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

BENJAMIN THURMAN, )
)
Plaintiff, )
)
v. ) No. 4:23-CV-659 SPM
)
RUG DOCTOR, )
)
Defendant. )

OPINION, MEMORANDUM AND ORDER
This matter comes before the Court upon review of plaintiff Benjamin Thurman’s second
amended complaint. [ECF No. 14]. For the reasons discussed below, the Court will dismiss this
action pursuant to 28 U.S.C. § 1915(e)(2)(B).
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”).
An action is frivolous if it “lacks an arguable basis in either law or fact.” Neitzke v.
Williams, 490 U.S. 319, 328 (1989). The term “‘frivolous,’ when applied to a complaint, embraces

not only the inarguable legal conclusion, but also the fanciful factual allegation.” Id. While federal
courts should not dismiss an action commenced in forma pauperis if the facts alleged are merely
unlikely, the court can properly dismiss such an action if the allegations in the complaint are found
to be “clearly baseless.” Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (citing Neitzke, 490 U.S.
319). Allegations are clearly baseless if they are “fanciful,” “fantastic,” or “delusional,” or if they
“rise to the level of the irrational or the wholly incredible.” Id.
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 Benjamin Thurman, a self-represented litigant, filed the instant action on May 17,
2023. [ECF No. 1]. Plaintiff filed his original complaint against his former employer Rug Doctor,
pursuant to Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e, et seq. He

claimed that he had been discriminated against based on his race and color in the terms and
conditions of his employment, and that he had been unlawfully terminated from his employment
in April of 2022.
Specifically, he asserted that he was hired by Rug Doctor as a repair technician in
September of 2020, and that approximately a year later he noticed that someone at work had
written a racially insensitive term on some of his documents. He further claimed that he was
subjected to slur words behind his back by certain coworkers. Plaintiff claimed that eventually, he
was written up at work and told that he was being discharged for disruptive behavior. However,
he insisted that he was discharged due to his race. Plaintiff also claimed that he had been the victim
of unlawful harassment and stalking. Plaintiff alleged that he was seeking injunctive relief to stop

the harassment and stalking.
Supplements to Original Complaint
On June 5, 2023, the Court received a document titled, “Memorandum for Clerk,” which
contained exhibits in support of his original complaint. [ECF No. 5]. The Court treated the exhibits
as part of the original complaint in accordance with Federal Rule of Civil Procedure 10(c).
The first exhibit was plaintiff’s Charge of Discrimination filed with the Equal Employment
Opportunity Commission (EEOC) and the Missouri Commission on Human Rights. [ECF No. 5
p. 2]. In his charge, plaintiff claimed that he was terminated because of race discrimination in
violation of Title VII. He additionally asserted that he had been subjected to racial discrimination
in the terms and conditions of his employment. Id. However, his second exhibit was a document
in which he claimed that he had been stalked due to workplace retaliation. See ECF No. 5, p. 3. He
alleged 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.” Id.
His assertions included the statement that his “brother ended up dead.” He insinuated that
his brother’s death involved 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.” Id. Following these allegations, plaintiff also
asserted that he began 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. [ECF No. 5, p. 3].
Plaintiff’s third supplement to his original complaint contained 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. [ECF No. 5, pp. 4-11].
Plaintiff’s fourth supplement to his original complaint was an instructional form for
QuWave Defender, which is marketed as a device to guard “targeted individuals” against

electromagnetic frequencies. [ECF No. 5, p. 12]. And the fifth supplement to his original complaint
is a picture of the QuWave device. [ECF No. 5, p. 13].1
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. [ECF No. 6]. The amended
complaint was on a Court-provided civil complaint form, and named Rug Doctor, Joe Wright, and
Joshua Laughlin as defendants. Instead of bringing his amended complaint under Title VII of the
Civil Rights Act of 1964, plaintiff asserted claims under “Invasion of Privacy Act, Wiretap Act,
Electronic Communications Privacy Act, [and] Foreign Intelligence Surveillance Act.”
The “Statement of Claim” consisted 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. [ECF No. 6, p. 5]. Based on these assertions, plaintiff sought
“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.” Id.

1The final supplement to the original complaint was a blurry photograph that the Court could not identify.
[ECF No. 5, p. 14].
Order to Amend the Complaint
On August 14, 2023, the Court noted the deficiencies in plaintiff’s prior pleadings and
ordered plaintiff to submit a second amend complaint on a Court-provided form no later than
September 13, 2023. [ECF No. 11].

In directing plaintiff to submit a second amended complaint the Court noted that plaintiff
was unable to bring both an employment discrimination complaint and a separate unrelated
complaint for stalking/harassment/invasion of privacy in the same lawsuit; therefore, he would
need to separate his claims in separate lawsuits. See Fed.R.Civ.P.18 and 20.
Additionally, the Court noted that if plaintiff wished to pursue his claims for
stalking/harassment/invasion of privacy and not his employment discrimination claims in his new
second amended complaint, he would need to substantiate the Court’s jurisdiction within his
second amended complaint. 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). For example, although plaintiff listed several federal

statutes, such as “Invasion of Privacy Act, Wiretap Act, Electronic Communications Privacy Act,
[and] Foreign Intelligence Surveillance Act,” he had failed to show that any of them were relevant
to this action, to the listed defendants or that they provided a private right of action. 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”).
Second Amended Complaint
On September 13, 2023, plaintiff filed his second amended complaint on a Court-provided
civil complaint form against defendant Rug Doctor. He asserts claims under the following:
“Privacy Act of 1974; Computer Match and Privacy Act of 1998; Wiretap Act; and Electronic

Communication Privacy Act.” Plaintiff seeks monetary damages in an amount of $500,000 for
being “retaliated upon” and “surreptitiously stalked.”
Plaintiff claims that when he was going over documents at work someone had written racial
slurs on one of his documents, and he was subject to “sly personal slur words behind [his] back by
[his] coworkers.” Plaintiff acknowledges that he was told he was being terminated for
“insubordination,” but he claims he was discharged because of his race.
Plaintiff alleges that “they” have done everything they can to make it appear as though he
has a mental health problem or to “outrage against people or to harm [himself].” He claims, “they
try to silence me to let them mind control or harm me.” Plaintiff asserts:
I’m being Surreptitiously stalked…my privacy has been invaded, intruded upon
and spread to follow. Before my termination at the rug doctor I was targeted. My
personal information was being displayed behind my back in a sly, sneaky,
surreptitious way. On September 29, 2021, I received a work document with a racist
slur written on it. I showed the manager at the time an[d] was told to disregard it.
Over the course of two yrs [sic] I was harassed, moved around, given bad
performance wright [sic] up, discredit, an[d] was given a “special project.” That
lead [sic] to my termination. Before my termination my brother ended up dead May
26, 2022. I noticed one of the main co-worker[s] that didn’t like me took vacation
at this time. And [I] notice[d] his clean shave and hair cut when he came back from
[vacation] (as if he had gotten away with something). A month later June 23, 2022,
I was terminated for insubordination. I immediately reached out to a lawyer. Eric
Routtencutter 100$ to send rug doctor a service letter to review the incident. I later
received a post card stating they received the service letter, but I didn’t receive a
court date. At this time I’m being Surreptitiously targeted and stalked. I started to
hear the same personal, sexual, and racial slur words in my apartment and at my
other jobs that where [sic] being displayed behind back at the rug doctor. In the
voice of Joe Wright, and Joshua Laughlin. I soon [moved] from that apartment due
to noise campaign and the voices. I moved in with my sister for a few months but
even then I would still hear there [sic] voices. Coercing, convincing, manipulating
and annoying me to a state of paranoia. I just wanted them to leave me alone so I
reached out for help. I checked in to SSM health 10/7/2022 was released
10/10/2022. My time spent at SSM I didn’t hear any voices besides the people that
where [sic] there. Like that’s where they wanted me. After released I returned to
work at my job at the time and could still hear the main two guys coercing,
harassing, manipulating, annoying and creating negative thought patterns. As this
followed me workplace to workplace, I was released from my next 3 jobs. After
living with my sister I finally found an apartment I was able to move in 12/2/2022.
Since moving in to my new apartment iv [sic] had constant complaints of noise
campaign iv [sic] called the cops numerous times. I’m still hear those guys voices.
Iv [sic] found graffiti of my brother’s name on a street rail and kkk symbol around
my home. My apartment and car have been surreptitiously invaded things moved
around and not how I left them. My neighbor is an elder lady but my camera caught
her giving me the middle finger. I don’t know what [is] going on around me as far
as things I can’t physically see. Iv [sic] been in and out of depression. And I have
taken a lot of mental distress. I’m just trying to live my life before this all of [the]
sudden became part of me. I’m being Surreptitiously Stalked.

[ECF No. 14, p. 7].
Despite the warning in the Court’s August 14, 2023 Memorandum and Order, plaintiff has
failed to connect this allegations within his second amended complaint to defendant Rug Doctor.
Additionally, he has failed to articulate how claims under the “Privacy Act of 1974; Computer
Match and Privacy Act of 1998; Wiretap Act; and Electronic Communication Privacy Act” relate
to the claims set forth in his second amended complaint.
Discussion
Having reviewed and liberally construed the second amended complaint, the Court is
unable to discern plaintiff’s claims regarding Rug Doctor, his former employer. The Federal Rules
of Civil Procedure require litigants to formulate their pleadings in an organized and
comprehensible manner. Even pro se plaintiffs are required to set out not only their alleged claims
in a simple, concise, and direct manner, but also the facts in support of such claims. See McNeil v.
United States, 508 U.S. 106, 113 (1993). Here, plaintiff has not done so. While this Court must
liberally construe pro se filings, this Court will not construct claims or assume facts that plaintiff
has not alleged. See Stone v. Harry, 364 F.3d 912, 914-15 (8th Cir. 2004) (refusing to supply
additional facts or to construct a legal theory for the pro se plaintiff that assumed facts that had not
been pleaded). Additionally, plaintiffs allegations and his prayer for relief are nonsensical, and
indeed “rise to the level of the irrational or wholly incredible.” Denton, 504 US. at 33. The Court
therefore finds that plaintiff's allegations are clearly baseless as defined in Denton. The Court will
therefore dismiss this action as frivolous and for failure to state a claim upon which relief may be
granted.
Accordingly,
IT IS HEREBY ORDERED that that this action is DISMISSED. A separate Order of
Dismissal will be entered herewith.
IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel [ECF
No. 13] is DENIED AS MOOT.
IT IS FURTHER ORDERED that an appeal from this dismissal shall not be taken in
good faith.
Dated this 19™ day of September, 2023.

UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10239288. Public record. Not legal advice.