# Johnston v. Mesmer

> District Court, E.D. Missouri · December 6, 2024

URL: https://www.frixlaw.com/law-library/cases/10757206

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** December 6, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

10

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,

11

“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
12

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.
13

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.
14

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

15

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10757206. Public record. Not legal advice.