Johnston v. Mesmer

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

NORTHERN DIVISION

CASSANDRA E. JOHNSTON, )

Plaintiff,

V. No. 2:24-CV-00071 JAR

ANGELA MESMER, et al.,

Defendants.

MEMORANDUM AND GRDER

This matter is before the Court on the motion of self-represented plaintiff Cassandra E.

Johnston, an inmate at the Women’s Eastern Reception and Diagnostic Correctional Center

(WERDCC) in Vandalia, Missouri, for leave to commence this civil action without prepayment of

the required filing fee. [ECF No. 2]. Having reviewed the motion and the financial information

submitted in support, the Court has determined that plaintiff lacks sufficient funds to pay the entire

filing fee and will assess an initial partial filing fee of $80.06. See 28 U.S.C. § 1915(b)(1).

Additionally, for the reasons discussed below, the Court will order plaintiff to file an amended

complaint on a Court-form. Plaintiffs failure to do so in a timely manner will result in a dismissal

of this action, without prejudice.

28 U.S.C. § 1915(b)(1)

Pursuant to 28 U.S.C. § 1915(b)(1), a prisoner bringing a civil action in forma pauperis is

required to pay the full amount of the filing fee. If the prisoner has insufficient funds in his or her

prison account to pay the entire fee, the Court must assess and, when funds exist, collect an initial

partial filing fee of 20 percent of the greater of (1) the average monthly deposits in the frisioner’s

account, or (2) the average monthly balance in the prisoner’s account for the prior six-month

period. After payment of the initial partial filing fee, the prisoner is required to make monthly

payments of 20 percent of the preceding month’s income credited to the prisoner’s account. 28

U.S.C. § 1915(b)(2). The agency having custody of the prisoner will forward these monthly

payments to the Clerk of Court each time the amount in the prisoner’s account exceeds $10.00,

until the filing fee is fully paid. Jd.

In support of the motion for leave to proceed in forma pauperis, plaintiff submitted a copy

of her certified inmate account statement. [ECF No. 4]. A review of plaintiff's account indicates

an average monthly deposit of $101.73 and an average monthly balance of $400.32. Plaintiff has

insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial

filing fee of $80.06, which is 20 percent of plaintiff's average monthly balance.

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 may be granted. An

action is frivolous if it “lacks an arguable basis in either law or fact.” Neitzke v. Williams, 490 U.S.

319, 328 (1989). An action fails to state a claim upon which relief may be granted if it does not

plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (2007).

“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.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 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. /d. at 679. The court must assume the veracity of well-pleaded

facts but need not accept as true “[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements.” /d. at 678 (citing Twombly, 550 U.S. at 555).

This Court must liberally construe complaints filed by laypeople. Estelle v. Gamble, 429

U.S. 97, 106 (1976). This means that “if the essence of an allegation is discernible,” the court

should “construe the complaint in a way that permits the layperson’s claim to be considered within

the proper legal framework.” Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015) (quoting Stone

v. Harry, 364 F.3d 912, 914 (8th Cir. 2004)). However, even self-represented complaints must

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). Federal courts are not required to assume facts that are not alleged,

Stone, 364 F.3d at 914-15, nor are they required to interpret procedural rules to excuse mistakes

by those who proceed without counsel. See McNeil v. United States, 508 U.S. 106, 113 (1993).

The Complaint

Plaintiff Cassandra Johnston, an inmate at (WERDCC), filed the instant action pursuant

to 42 U.S.C. § 1983. [ECF No. 1]. Plaintiff names seventeen (17) individuals as defendants in this

action: (1) Angela Mesmer (Warden, WERDCC); (2) Todd Francis (Deputy Warden, WERDCC);

(3) Derrek Hendern (Deputy Warden, WERDCC); (4) Lance McAfee (Functional Unit Manager

(FUM)); (5) Christopher Buie (FUM); (6) Kieth Kieffer (FUM); (7) Jane Barton (Classification

Staff); (8) Christy Yok (Classification Staff); (9) Destiny Swank-Pease (Classification Staff); (10)

Kimberly Immel (Classification Staff); (11) Donna Brown (Classification Staff); (12) Jane Nelson

(Classification Staff); (13) Crystal Hull (Cosmetology Instructor); (14) Jonathan Lewis

(Correctional Officer); (15) Nicole Wiede (Correctional Officer); (16) John Baumbach

(Correctional Officer); and (17) Aiden Leon (Correctional Officer). Defendant Angela Mesmer,

the Warden at WERDCC, is sued in both her individual and official capacities. However, the

remaining defendants are sued in their individual capacities only.

Plaintiff's allegations are difficult to follow, as they span from early 2023 through the end

of 2024 and contain a multitude of claims for relief against almost two dozen defendants. It appears

that she is alleging claims of harassment, retaliation, discrimination and infringement of her due

process rights. Plaintiff also alleges that defendants have “colluded” against her to infringe upon

her rehabilitation efforts by giving her conduct violations and by unlawfully placing her in

disciplinary segregation.

A. Plaintiff’s Claims of “Collusion,” Harassment, Interference with School Program and

Infringement on her Rehabilitation Efforts

Plaintiff states that she was accepted into Washington University’s Bachelor’s Degree

Program at WERDCC on or about May 4, 2023. [ECF No. 1, p. 11]. She alleges, in a conclusory

fashion, that defendant Lance McAfee, a Functional Unit Manager, moved her off an unnamed

wing, on May 7, 2023, without any provocation, where she had been staying for over eight months.

Id. at pp. 9, 11. Plaintiff believes McAfee’s actions were done only to harass her and “collude”

against her. She claims that McAfee told her, “You just don’t quit! Reporting staff has gotten you

nowhere. You didn’t get Work Release, you didn’t get into Vo-Tech, and if this institution had

anything to do with it, you wouldn’t’ve got Wash U neither.” /d. at 9.

Plaintiff asserts that she was moved onto a wing where she had several enemies, but she

fails to indicate who those enemies were, or if defendant McAfee was aware of her alleged enemies

on the wing. Her fear, apparently, was that she could be assaulted or have drugs or weapons planted

on her. [ECF No. 1, p. 11]. Plaintiff states that McAfee told her, “This is prison. . .it’s not my duty

to make sure you are comfortable.” On May 10, 2023, plaintiff was sent to segregation for a Prison

Rape Elimination Act (PREA) investigation. Plaintiff, however, was released from segregation

after the investigation was complete on May 16, 2023. /d. Plaintiff does not indicate who did the

alleged PREA investigation.

Plaintiff, however, claims that McAfee “engaged in his own investigation” as to the

alleged charges against her, which resulted in plaintiff being charged with a conduct violation. See

WERDCC No. 23-00573. [ECF No. 1, p. 12].' The alleged conduct violation stated that plaintiff

was found masturbating during a personal phone call. Plaintiff, however, states that the report done

by McAfee was false. /d. She claims that she had a hearing on the violation in front of defendant

Donna Brown, Classification Staff, on May 31, 2023. /d. at p.20. When plaintiff asked to have the

person she was on the phone with brought in as a witness at the hearing, Brown allegedly replied,

“McAfee said I don’t have to get your friend’s statement. . .” Brown then found plaintiff guilty of

the conduct violation. /d. Plaintiff does not indicate what punishment she received because of

being found guilty of the conduct violation; however, it appears that she was moved to disciplinary

segregation for a brief period, or for approximately a month’s time.

Plaintiff alleges in a conclusory manner that on or about June 20, 2023, one day after she

was released from disciplinary segregation, defendant McAfee moved an inmate named Courtney

Rose into a cell with plaintiff so that Rose could purportedly “take the plaintiff out.” [ECF No. 1,

p. 12]. Plaintiff, however, does not indicate that Rose was on her enemy’s list. Rose allegedly told

plaintiff on June 22, 2023, “McAfee told me to watch you because you like to masturbate.” He

said to take you out if I have any problems with you. . .he wants you in the hole girl.” /d. Plaintiff

complains that Rose made a false PREA report about plaintiff the next day, and she was sent back

to “the hole,” which appears to refer to disciplinary segregation. Plaintiff complains that when she

was released from disciplinary segregation on July 10, 2023, approximately three days later,

‘Although plaintiff has included several Institutional Resolution Requests (IRRs) with her complaint, it

does not appear that she has included one relative to this conduct violation.

McAfee moved her to a housing unit where she had “several enemies,” which also contained

inmate Rose. /d. Plaintiff believes McAfee did so with the sole purpose of harassing her. /d.

Plaintiff alleges that on or about July 13, 2023, defendant Jane Barton, Classification Staff,

met with Dr. Meredith Killinger, a Professor with the Washington University Bachelor’s Degree

Program. [ECF No. 1, p. 9]. Barton allegedly asked Dr. Killinger when the program could remove

a student. Dr. Killinger is not a named defendant in this action. Plaintiff claims in a conclusory

manner, however, that defendant Barton knew that defendant Derrek Hendern (Deputy Warden),

Lance McAfee (Functional Unit Manager), Christy York (Classification Staff), and Destin Swank-

Pease (Classification Staff) wanted to have plaintiff removed from the Washington University

Bachelor’s Degree Program. /d. Plaintiff does not indicate why these alleged defendants

purportedly wanted her removed from the Program. Similarly, plaintiff fails to provide evidence

of any alleged “collusion,” such as whether Barton was asked by the other defendants to seek out

Dr. Killinger to have plaintiff removed from the Washington University Program.

Plaintiff next states in a conclusory fashion, that one of her friends, Loutinia Owens, spoke

to defendant Swank-Pease on or about July 17, 2023, regarding why plaintiff kept being sent to

disciplinary segregation. [ECF No. 1, p. 9]. Swank-Pease allegedly told Owens, “Johnston did not

earn Wash U and she don’t deserve it.” /d. Plaintiff states that when she stopped to show her 3.91

G.P.A. to Deputy Warden Todd Francis on December 13, 2023, Deputy Warden Derrek Hendern

allegedly told her, “There are other ways to get you out of school if you’re too smart to flunk out.”

Id.

B. Plaintiff's Claims of Sexual Harassment and Retaliation for Reporting Sexual

Harassment

Plaintiff alleges that she suffered from sexual harassment at WERDCC by defendant

Correctional Officer Aidan Leon that began in July of 2023 and went through March of 2024. She

claims the harassment started on July 18, 2023, when plaintiff was in the dayroom using the

microwave and defendant Leon told her he had noticed her. [ECF No. 1, p. 13]. When plaintiff

said she was attempting to go unnoticed, defendant Leon said, “With a walk like that it’s hard to

not notice you.” /d.

By August of 2023, plaintiff claims that defendant Leon was calling her to the rotunda

every morning. He started asking her questions such as how much time she had done, when she

was getting released, where she was from and if she was married. /d. Plaintiff claims she asked

defendant Leon if he was directing her to answer personal questions. /d. On September 1, 2023,

when defendant Leon called plaintiff to the rotunda, plaintiff said, “How can I help you? Why do

you keep calling me out to this rotunda?” /d. Plaintiff does not indicate what defendant Leon

replied. However, she claims that defendant Leon started placing the laundry room sign up on his

desk in the rotunda so that it was necessary for her to enter the rotunda to sign up there. /d.

On September 4, 2023, defendant Leon allegedly had Correctional Officer Sellers, who is

not a named defendant in this case, bring plaintiff to the rotunda. Leon said, “Let’s make a deal. .

.” Plaintiff allegedly told Leon, “I do not make deals with C.O.s.” [ECF No. 1, pp. 13-14]. Plaintiff

states that at this point, she began reporting defendant Leon’s conduct to his supervisor. /d. at 14.

The Court assumes defendant Leon’s supervisor was Christy York, Classification Staff, based on

plaintiff's allegations in her complaint.

Plaintiff states that in “September 2023,” she reported to defendant Christy York that

defendant Leon was harassing her, and that she thought the harassment was sexual in nature.

Plaintiff claims that York blamed her for the alleged harassment, stating, “if he is harassing you,

that’s on you. . .” Plaintiff claims that York told her that reporting the issue was making her prison

time harder. /d. Plaintiff does not indicate if she filed a PREA report regarding defendant Leon’s

conduct.

On an unnamed date in October of 2023, plaintiff claims she and another inmate, Patricia

Moore, went to breakfast together, and when defendant Leon saw plaintiff get her meal tray, she

heard Leon say, “Your black ass got me hard. . .” Jd. Allegedly inmate Moore wrote an offender

statement regarding the incident. Around this same time, plaintiff claims she was assisting

defendant Destiny Swank-Pease, Classification Staff, with a supply run, and she asked her how to

deal with the harassment from defendant Leon. [ECF No. 1, pp. 14-15]. Swank-Pease alleged said,

“You ain’t no better than these other whores around here.” /d. at 15.

Plaintiff states that on or about November 3, 2023, she was alone in the restroom at

approximately 3:00 a.m., when she heard a male voice call out, “Showers clear!” Plaintiff states

that she called out three separate times, “Johnston’s in the bathroom!” She then allegedly heard

defendant Leon whisper, “I know you’re in here. . .” Jd. Plaintiff believed Leon to be in the

bathroom with her, and she pushed herself against the stall door. /d.

On November 19, 2023, plaintiff claims that defendant Leon was conducting a security

walk when he saw plaintiff alone in the restroom. Plaintiff claims that Leon said, “Black girls are

easy. Nobody believe them, they are seen as the aggressors, and they don’t get sympathy.” /d.

Plaintiff claims that she made several reports to unnamed persons in “mental health” that

she was being stalked and harassed by defendant Leon. [ECF No. 1, p. 16]. She states that she not

only stated she feared for her safety but that she also believed “certain staff’ were working together

to obstruct her rehabilitation efforts. Jd.

In August of 2023, plaintiff purportedly spoke with defendants Derrek Hendern, Deputy

Warden, and Jonathan Lewis, Correctional Officer, in the Captain’s Office about her fears that

Functional Unit Manager Lance McAfee was using inmates at WERDCC to “set her up on bogus

investigations.” /d. She claims that Hendern and Lewis started calling her a lesbian and accused

her of being sexually involved with another inmate. Hendern allegedly stated, “We are considering

re-classifying you as a sexual deviant. . .” He purportedly advised plaintiff to transfer. /d. Plaintiff

states that she told Hendern and Lewis that she wanted to remain at WERDCC to obtain her

Bachelor’s Degree prior to release. /d. Plaintiff purportedly asked Hendern to “Please call off your

dogs. . .” Id.

Plaintiff claims that on or about December 13, 2023, she stopped at the Barber Shop at

WERDCC to report to Deputy Wardens Derrek Hendern and Todd Francis, as well as Correctional

Officers Jonathan Lewis and John Baumbach, that defendant Leon’s harassment was progressing.

She claims she also showed defendant Francis her GPA at this time. [ECF No. 1, p. 17]. Defendant

Hendern allegedly told plaintiff, “There’s other ways to get you out of school if you’re too smart

to flunk out. . .” /d. After this plaintiff allegedly spoke with PREA advocate Amy Harold several

times regarding the “grief, fear and retaliation” she was experiencing” regarding staff member

misconduct. Jd.

Plaintiff alleges that she has been subjected to several harassing comments by various

individuals at WERDCC. On February 16, 2024, plaintiff was allegedly told by Taylor Immel,

who is not a named defendant in this case, she was going home in fifteen months. He purportedly

replied, “No you won’t. We are going to make sure you don’t.” Jd. On March 9, 2024, defendant

Leon told plaintiff, “You better hope you make it to Chili[cothe], cause you ain’t safe here.” /d.

On March 13, 2024, plaintiff asserts that defendant Kieth Kieffer, a Functional Unit

Manager at WERDCC, threatened her when she sought protective custody by saying, “If you PC,

I will make you very uncomfortable. . .” Jd. On March 19, 2024, plaintiff allegedly overheard

Functional Unit Manager Lance McAfee say to Correctional Officer Saunders, “. . .give her a

violation for everything. She has remained under possible enemy status.” [ECF No. 1, p. 18].

Plaintiff claims that this refers to punitive segregation according to Warden Angela Mesmer. /d.

Although plaintiff believes that the “possible enemy status” designation was given to her by

Angela Mesmer, she does not indicate why she believes this.

Plaintiff states that all conduct violations given to her after September 4, 2023, were done

in retaliation for reporting Correctional Officer Leon’s harassment to Classification Staff Member

Christy York. [ECF No. 1, p. 19]. She claims that there is evidence of this because on September

13, 2023, Leon stopped her on the way to breakfast and told her, “Since you like to report sexual

harassment, I’m going to start writing your black ass up.” /d. After this time, she was “forbidden

from engaging in permissible activities” and violation reports were made against her. Jd. She was

forbidden, for example, from getting ice, on September 13, 2023. Jd. When she asked defendant

Leon why this was forbidden, he stated, “I bet you wanna make a deal now,” and at that time he

wrote her a conduct violation. See WERDCC No. 23-01108. /d.

Plaintiff claims that Leon also began formally and informally sanctioning her because her

signature on the laundry form was either too big or too small. /d. And as the rotunda officer, Leon

instructed other wing officers to forbid plaintiff from heating up water or opening the laundry room

during her laundry time. /d. According to plaintiff, Leon would tell other inmates that the failure

to open the laundry room was Johnston’s fault. /d.

On February 7, 2024, defendant Crystal Hull told plaintiff that her bosses, the wardens,

wanted her to write plaintiff up. Hull apparently wrote WERDCC No. 24-00178 on plaintiff, which

plaintiff refers to as “misleading.” /d. Plaintiff asserts that because of a modified sanction on this

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conduct violation written by Classification Staff Member Destiny Swank-Pease on February 20,

2024, plaintiff's sanctions included removal from school. /d.

C. Plaintiff's Claims for Infringement of her Due Process Rights

As noted above, plaintiff alleges that her due process rights were first violated when she

was charged with a conduct violation in May of 2023, WERDCC No. 23-00573, for masturbating

on a personal phone call, but she was not allowed to call the individual who she had been on the

phone with as a witness in her hearing in front of defendant Donna Brown, Classification Staff, on

May 31, 2023. Plaintiff blames both defendant Brown and Functional Unit Manager Lance

McAfee for denial of her due process rights, and she claims that the disciplinary hearing was held

outside the Missouri Department of Corrections (MDOC) guidelines. [ECF No. 1, pp. 12, 20].

Plaintiff appears to have been kept in disciplinary segregation for approximately a month, and she

indicates that she lost “property and other privileges.” /d. at 20. She has not indicated in detail

what privileges she allegedly lost after she was found guilty of the conduct violation, however.

Plaintiff states that on August 4, 2023, she was found guilty of conduct violation

WERDCC No. 23-00856 by defendant Destiny Swank-Pease, Classification Staff. /d. at 20. On

that date, defendant allegedly told plaintiff, “Everytime [sic] | team you on a violation, your [sic]

going to be guilty. . .” Jd. On September 22, 2023, during the disciplinary hearing for WERDCC

No. 23-01108, plaintiff claims that defendant Kimberly Immel, Classification Staff, failed to

document evidence that she relied on to find plaintiff guilty. [ECF No. 1, pp. 20-21.]. When

plaintiff challenged the finding of guilt, defendant Immel allegedly replied she was doing what she

was told to do by defendant Lance McAfee, the Functional Unit Manager. /d. at 21.

On November 29, 2023, while waiting for a disciplinary hearing to start on WERDCC

No. 23-01305, Correctional Officer Bowness, who is not a named defendant in this lawsuit, stated,

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“They called me to take you to five house [disciplinary segregation].” [ECF No. 1, p. 21]. Plaintiff

claims that the two were half-way to five house before Bowness was told by an unnamed person

to return plaintiff so defendant Christy York, Classification Staff, could conduct the disciplinary

hearing. Plaintiff claims that York refused to obtain a statement from Correctional Officer Cagle

before finding plaintiff guilty of the conduct violation and sentencing her to disciplinary

segregation. /d; see also WERDCC No. 23-286.

On December 18, 2023, Correctional Officer Chapman reported that plaintiff had been

assaulted and did not fight back. See WERDCC No. 23-01423. Plaintiff claims that the inmate

who assaulted her, admitted she was guilty of starting the fight and was actually found guilty of

the violation. [ECF No. 1, p. 21]. Plaintiff complains that despite this, defendant Jane Nelson,

Classification Staff, modified the violation to a more severe “creating a disturbance,” and found

her guilty of the violation, utilizing a video which purportedly showed plaintiff arguing with the

other offender. /d. at 22; see also WERDCC No. 24-75.

Plaintiff complains that her statement of defense was not reviewed prior to her disciplinary

hearing on February 16, 2024, regarding conduct violation WERDCC No. 24-00178. /d. She states

that when she asked defendant Destiny Swank-Pease, Classification Staff, to review the statement

she prepared and to have the cameras reviewed, Swank-Pease told her, “I’m not tabling this hearing

to get evidence that ain’t gone matter no way! Now do you have a statement and it needs to fit on

this one line.” /d. Plaintiff states that on February 20, 2024, defendant Derrek Hendern modified

her disciplinary sanction to include her removal from the Washington University Bachelor’s

Degree Program. /d. at 23. Plaintiff believes the disciplinary sanction was outside the Missouri

2Plaintiff has included copies of her grievance documents as attachments to her complaint. On March 29,

2024, in response to plaintiff's IRR grieving her removal from the Washington University Program,

investigation staff at WERDCC responded to plaintiff that she had lost privileges in the program for

acquiring 11 conduct violations in a shortened time, a total of 106 violations during her incarceration and

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Department of Corrections’ policy. Plaintiff allegedly filed an IRR regarding her removal from the

Program, but she claims her evidence was not responded to. /d.

On April 29, 2024, plaintiff received conduct violation WERDCC No. 24-00514, which

was supposed to be for a minor rule violation. [ECF No. 1, p. 23]. She claims that she asked the

alleged victim for a witness statement. However, at the hearing held on May 2, 2024, plaintiff was

charged with a major rule violation by Functional Unit Manager Christopher Buie and Correctional

Officer Zimmer, who is not a named defendant in this action. /d. Plaintiff claims that she was then

read her Miranda rights, but she declined to waive her right to counsel. /d.

D. Plaintiff's Claims for Discrimination

Plaintiff claims that she was treated differently than others who were in disciplinary

segregation who were also enrolled in the Washington University Bachelor’s Degree Program.

Specifically, plaintiff states that defendants Derrek Hendern (Deputy Warden), Lance McAfee

(Functional Unit Manager), Crystal Hull (Cosmetology Instructor), Destiny Swank-Pease

(Classification Staff), Kieth Kieffer (Functional Unit Manager) and Nicole Wiede (Correctional

Officer), intentionally and without a rational basis, treated her in a more discriminatory manner

than others who were similarly situated than her. [ECF No. 1, p. 24].

Plaintiff claims that there was a list of approved school materials that were allowed for

inmates who were housed in disciplinary segregation, and that while she was housed there, she

requested those materials from Classification Staff, Alexis Marks, but Marks told plaintiff that

defendant Kieffer would not allow Marks to give plaintiff those supplies. However, all other

for accumulating a 19.1 violation. On May 3, 2024, Deputy Warden Hendren indicated that plaintiff was

removed from the Washington University Program as a direct result of having 23 violations over a one-

year span.

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persons who were enrolled in the Washington University Bachelor’s Degree Program were

allowed the supplies except plaintiff. Jd. Marks is not named as a defendant in this action.

Plaintiff, however, does not indicate how or why she links defendants Derrek Hendern,

Lance McAfee, Crystal Hull, Destiny Swank-Pease and Nicole Wiede to defendant Kieffer’s

alleged unlawful actions. Instead, plaintiff makes conclusory allegations against the remaining

defendants regarding their alleged discriminatory conduct.

Plaintiff alleges, however, that defendant Destiny Swank-Pease made a racist statement

during a disciplinary hearing on August 4, 2023, that “[a]ll you nappy heads are guilty.” /d. at 24.

As noted above, plaintiff also takes issue with being assessed a violation for “creating a

disturbance” after she was assaulted in December of 2024. See WERDCC No. 23-01423. /d. at 24.

Plaintiff believes that others would have simply had the violation removed from their record, while

she was given a conduct violation, which later resulted in her removal from the Washington

University Program. /d.

Plaintiff also believes she was treated differently than another individual who was also

waiting to get into the cosmetology program named Kim Collins. Plaintiff claims that she waited

over five months to get into the program, while Collins waited a mere three weeks. [ECF No. 1, p.

26.] Plaintiff states that she had an education score of a 2, her GED had been verified, and she had

fewer than five violations within the year.’ Plaintiff states that Collins had not seen the parole

board and had no scheduled release date. She claims Collins’ education had not been verified but

was otherwise similarly situated. Plaintiff states that Collins declined entrance into the program

once it was offered to her. /d.

3plaintiff’s assertions regarding the number of conduct violations on her record is in contravention to the

inforrnation from the MDOC.

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E. Request for Relief

Plaintiff seeks damages and injunctive relief in this matter.

Discussion

Having thoroughly reviewed and liberally construed plaintiff's complaint, the Court

concludes it is subject to dismissal as written.

First, plaintiff has attempted to assert multiple unrelated claims in this lawsuit against

seventeen (17) defendants, which is impermissible. Although plaintiff may join in one action as

many claims as she has against a single defendant, see Fed. R. Civ. P. 18(a) (emphasis added),

when multiple defendants are named, the Court must consider whether the defendants are properly

joined under Rule 20(a)(2) of the Federal Rules of Civil Procedure. See Intercon Research Assocs.,

Ltd. v. Dresser Indus., Inc., 696 F.2d 53, 57 (7th Cir. 1982).

Under Rule 20(a)(2), a plaintiff may join multiple defendants in one action only if her

claims against them arise out of the same transaction or occurrence or if a series of transactions or

occurrences present common questions of law or fact. Unrelated claims against different

defendants must be brought in different suits. (emphasis added). Plaintiff should therefore decide

what claims. to pursue in this lawsuit and what claims she wishes to pursue in any separate

lawsuit(s) in the future. The Court will provide plaintiff with two complaint forms. She may seek

additicnal complaint forms from this Court by contacting the Court Clerk.

Second, plaintiff's pleading, which numbers forty-two (42) pages in length, is overbroad,

is not fully contained on a Court-provided form as a required by the Court’s Local Rule 2.01(B)(1)

and contains a plethora of conclusory allegations. Although civil rights pleadiags: should be

construed liberally, at the very least, however, the complaint must contain facts which state a claim

as a matter of law and must not be conclusory. Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th

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Cir. 1995). Like the complaint in Ashcroft v. Iqbal, which alleged that supervisory officials knew

of, condoned, and willfully and maliciously agreed to subject the plaintiff to harsh conditions for

an illegitimate reason, plaintiff's conclusory allegations against the individual defendants in the

instant complaint are conclusory, and they are not entitled to a presumption of truth. 556 U.S. at

678-79. The instant complaint asserts a plethora of conclusory allegations against the named

defendants in this action that fail to reach a level of plausibility needed to state a claim under /gbal.

Plaintiff's complaint does not suffice to properly allege that the actions were known to the

particular supervisory officials named as defendants, see Wilson v. City of N. Little Rock, 801 F.2d

316, 323 (8th Cir. 1986), and it assuredly does not plead adequately that the supervisors acted with

the impermissible purpose as required by /qbal. See Camberos v. Branstad, 73 F.3d 174, 176 (8th

Cir. 1995) (A general responsibility for supervising the operations of a prison is insufficient to

establish the personal involvement required to support liability.).

Last, plaintiff has made allegations against several of the defendants stating that they acted

with an impermissible purpose but has failed to spell out exactly how her rights have been violated.

Cf Igbal, 556 U.S. at 678-79. In short, plaintiff has failed to make direct allegations against many

of the named defendants in this action. Liability under 42 U.S.C. § 1983 requires a causal link to,

and direct responsibility for, the alleged deprivation of rights. Madewell v. Roberts, 909 F.2d 1203,

1208 (8th Cir. 1990); see also Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985) (claim not

cognizable under § 1983 where plaintiff fails to allege defendant was personally involved in or

directly responsible for incidents that injured plaintiff); Boyd v. Knox, 47 F.3d 966, 968 (8th Cir.

1995) (respondeat superior theory inapplicable in § 1983 suits).

In the instant action, plaintiff has not set forth facts indicating that many of the named

defendants were directly involved in or personally responsible for the alleged violations of her

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constitutional rights. As a result, the complaint fails to state a claim upon which relief can be

granted with respect to claims against many of the named defendants.

Nonetheless, in consideration of plaintiff's self-represented status, the Court will allow

her to submit an amended complaint on a Court-provided form. See E.D. Local Rule 2.01(B)(1).

Plaintiff's failure to comply with this Court’s instructions relating to the filing of her amended

complaint may result in a dismissal of this action, without prejudice.

Plaintiff is warned that the filing of an amended complaint replaces the original complaint

and all previously-filed pleadings, so plaintiff must include each and every one of the claims she

wishes to pursue in the amended complaint. See, e.g., In re Wireless Telephone Federal Cost

Recovery Fees Litigation, 396 F.3d 922, 928 (8th Cir. 2005). Any claims from the original

complaint, supplements, and/or pleadings that are not included in the amended complaint will be

deemed abandoned and will not be considered. /d. The allegations in the complaint may not be

conclusory. Instead, plaintiff must plead facts that show how each defendant she names is

personally involved in or directly responsible for the alleged harm. If plaintiff wishes to sue a

defendant in his or her individual capacity, plaintiff must specifically say so in the amended

complaint. If plaintiff fails to sue a defendant in his or her individual capacity, this action may be

subject to dismissal as to that defendant.

Last, the Court will deny plaintiff's motion to compel discovery, without prejudice. See

ECF No. 5. Because plaintiff, a prisoner, is proceeding as a pauper in this matter, the Prison

Litigation Reform Act (PLRA) applies. See 42 U.S.C. § 1997e. Therefore, discovery will not

commence in this action until after this Court’s review of plaintiff's amended complaint pursuant

to 28 U.S.C. § 1915 for frivolousness, maliciousness and for failure to state a claim. If plaintiff's

amended complaint survives preservice review, the Court will order service on the amended

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complaint and defendants will have the opportunity to answer plaintiff's pleading. Only after the

filing of defendants’ answer(s) will the Court issue a Case Management Order in this matter

governing discovery.

Motion to Appoint Counsel

Plaintiff has filed a motion to appoint counsel. [ECF No. 3]. In civil cases, a self-

represented litigant does not have a constitutional or statutory right to appointed counsel. Ward v.

Smith, 721 F.3d 940, 942 (8th Cir. 2013). See also Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir.

1998) (stating that “[a] pro se litigant has no statutory or constitutional right to have counsel

appointed in a civil case’’). 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. Plaintiff has yet to file a complaint that survives initial review, so it cannot

be said that she 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 her claims to the Court. The Court will entertain future motions for

appointment of counsel as the case progresses, if appropriate.

Accordingly,

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IT IS HEREBY ORDERED that plaintiffs motion for leave to proceed in forma pauperis

[ECF No. 2] is GRANTED.

IT IS FURTHER ORDERED that plaintiff must pay an initial filing fee of $80.06 within

thirty (30) days of the date of this Order. Plaintiff is instructed to make her remittance payable to

“Clerk, United States District Court,” and to include upon it: (1) her name; (2) her prison

registration number; (3) the case number; and (4) the statement that the remittance is for an original

proceeding.

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

Prisoner Civil Rights Complaint forms. Plaintiff may request additional forms as needed.

IT IS FURTHER ORDERED that plaintiff shall file an amended complaint on the Court-

provided form in accordance with the instructions stated above within thirty (30) days of the date

of this Order. Plaintiff is advised that her amended complaint will take the place of her original

filing and will be the only pleading that this Court will review.

IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel [ECF

No. 3] is DENIED at this time.

IT IS FURTHER ORDERED that plaintiffs motion to compel discovery [ECF No. 5] is

DENIED, without prejudice, as discovery in this matter is premature.

IT IS FINALLY ORDERED that if plaintiff fails to comply with this Order, the Court

will dismiss this action without prejudice and without further notice.

Dated this 6" day of December, 2024.

___.

. ROSS

UNITED STATES DISTRICT JUDGE

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