Cooper v. Berry

Filing 5

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in forma pauperis [# 2 ] is GRANTED.IT IS FURTHER ORDERED that plaintiff shall amend his complaint, on a court- provided Employment Discrimination Complai nt form within thirty (30) days of the date of this Order. IT IS FURTHER ORDERED that the Clerk shall provide plaintiff a copy of a blank Employment Discrimination Complaint form.IT IS FURTHER ORDERED that plaintiff=s motion for appointment of coun sel [Doc. # 4 ] is DENIED at this time.IT IS FURTHER ORDERED that if plaintiff fails to comply with this Order, this action will be dismissed without prejudice. ( Amended/Supplemental Pleadings due by 11/23/2016.). Signed by District Judge Rodney W. Sippel on 10/24/16. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RODNEY ALAN COOPER,
Plaintiff,
v.
ROGER BERRY,
Defendant.

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No. 4:16-CV-1521 RWS

MEMORANDUM AND ORDER
This matter is before the Court upon the application of plaintiff for leave to commence this
action without payment of the required filing fee. See 28 U.S.C. ' 1915. Upon consideration of the
financial information provided with the application, the Court finds that the applicant is financially
unable to pay any portion of the filing fee. Therefore, plaintiff will be granted leave to proceed in
forma pauperis. However, plaintiff will be required to file an amended complaint within thirty (30)
days of the date of this Memorandum and Order as plaintiff has failed to sue the proper party in this
Title VII action.
Background
Plaintiff brings this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e, et seq., for alleged religious discrimination. Plaintiff also alleges that he was subjected to a
hostile work environment by his supervisor, Roger Berry, at the St. Louis City Parks Department.
Named as the sole defendant in this Title VII action is Mr. Berry. Attached to plaintiff’s complaint
is a right to sue letter issued by the United States Department of Justice, Civil Rights Division,
dated August 31, 2016.

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Legal Standard
Because plaintiff is proceeding in forma pauperis, the Court is required to conduct an initial
review of the case and to dismiss it if it is frivolous, malicious, or fails to state a claim upon which
relief can be granted. 28 U.S.C. ' 1915(e).
Discussion
Title VII provides a remedy only against an Aemployer.@ The Eighth Circuit Court of
Appeals has squarely held that Asupervisors may not be held individually liable under Title VII.@
Bonomolo-Hagen v. Clay Central-Everly Community School District, 121 F.3d 446, 447 (8th Cir.
1997) (citing Spencer v. Ripley County State Bank, 123 F.3d 690, 691-92 (8th Cir. 1997); see Bales
v. Wal-Mart Stores Inc., 143 F.3d 1103, 1111 (8th Cir. 1998). As a result, plaintiff=s claims against
defendant Berry are subject to dismissal. At this time, plaintiff has not alleged claims against
another defendant in this action.
Because plaintiff is proceeding pro se, the Court will allow plaintiff to file an amended
complaint on the Court’s Employment Discrimination Complaint Form in order to name the
proper party in this lawsuit. Plaintiff shall have thirty (30) days from the date of this Order to file
an amended complaint in accordance with the specific instructions set forth herein. All claims in
an action must be included in one, centralized complaint form. The filing of an amended complaint
replaces the original complaint and all previously-filed pleadings, and so he must include each and
every one of the claims he 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. Id. If plaintiff fails
to file an amended complaint on a Court form within thirty (30) days in accordance with the
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Court’s instructions, the Court will dismiss this action without prejudice and without further
notice.
Additionally, the Court will deny plaintiff=s motion for appointment of counsel at this time.
There is no constitutional or statutory right to appointed counsel in civil cases. Nelson v. Redfield
Lithograph Printing, 728 F.2d 1003, 1004 (8th Cir. 1984). In determining whether to appoint
counsel, the Court considers several factors, including (1) whether the plaintiff has presented
non-frivolous allegations supporting his or her prayer for relief; (2) whether the plaintiff will
substantially benefit from the appointment of counsel; (3) whether there is a need to further
investigate and present the facts related to the plaintiff=s allegations; and (4) whether the factual
and legal issues presented by the action are complex. See Johnson v. Williams, 788 F.2d 1319,
1322-23 (8th Cir. 1986); Nelson, 728 F.2d at 1005.
After considering these factors and the factual allegations in the case at hand, the Court
finds that the facts and legal issues involved are not so complicated that the appointment of counsel
is warranted at this time.
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in forma pauperis
[#2] is GRANTED.
IT IS FURTHER ORDERED that plaintiff shall amend his complaint, on a
court-provided Employment Discrimination Complaint form within thirty (30) days of the date of
this Order.
IT IS FURTHER ORDERED that the Clerk shall provide plaintiff a copy of a blank
Employment Discrimination Complaint form.

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IT IS FURTHER ORDERED that plaintiff=s motion for appointment of counsel [Doc.
#4] is DENIED at this time.
IT IS FURTHER ORDERED that if plaintiff fails to comply with this Order, this action
will be dismissed without prejudice.
Dated this 24th day of October, 2016.

RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE

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