Evans v. Tolliver et al

Filing 7

MEMORANDUM AND ORDER...IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in forma pauperis [Doc. #2 ] is GRANTED. IT IS FURTHER ORDERED that plaintiffs motion to amend her complaint [Doc #5 ] is GRANTED. IT IS FURTHER ORDERED that plaintiff shall amend her complaint, on a court- provided 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 counsel [Doc. #3 ] is DENIED at this time. Signed by Magistrate Judge Shirley Padmore Mensah on 10/10/2019. (Attachments: #1 Form)(NEP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KATHY EVANS,
Plaintiff,
v.
LESLIE TOLLIVER, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

No. 4:19-CV-2416 SPM

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. Also before the
Court is plaintiff’s motion to amend her complaint. 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. The Court will also grant plaintiff’s motion to amend her complaint. However, plaintiff
will be required to file an amended complaint within thirty (30) days of the date of this
Memorandum and Order.
Background
Plaintiff brings this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§
2000e, et seq., for alleged race discrimination, as well as hostile work environment/harassment.
Named as defendants in this action are: Leslie Tolliver; Terri S. Knight; Felicia Miller; Sean
Nichols and Albert Sander. Plaintiff attached a right to sue letter to her complaint from the Equal
Employment Opportunity Commission (“EEOC”) dated August 23, 2019.

1

Plaintiff states that she has been employed by the St. Louis Public Schools since
November of 2016. She asserts that she was subjected to harassment at one particular school and
when she reported the harassment she was moved to another school in August of 2017. She
claims that the harassment stopped for a period of time but then resumed in September of 2019
with another individual. She asserts that she was physically assaulted and reported the assault to
Human Resources but nothing was done. Plaintiff alleges that she was suspended from her
position.
Plaintiff seeks monetary damages in this action.
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). A case can be dismissed under 28 U.S.C.
§ 1915(e) if the statute of limitations has run. See, e.g., Myers v. Vogal, 960 F.2d 750, 751 (8th
Cir. 1992).
Discussion
Title VII provides a remedy only against an “employer.” The Eighth Circuit Court of
Appeals has squarely held that “supervisors 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 the individual defendants in this action fail to state a claim upon which relief can
be granted under Title VII. Accordingly, the Court will order plaintiff to amend her complaint,

2

on a court form, within thirty (30) days of the date of this Order so that she may name her
“employer” as a defendant in this action.
Moreover, the Court will grant plaintiff’s motion to amend her complaint to the extent
she is attempting to support her original complaint with exhibits. However, an amended
complaint supersedes an original complaint in all relevant aspects. Thus, if plaintiff wishes to
refer to an exhibit in her amended complaint, she must attach the exhibit to her amended
pleading. The Court must warn plaintiff, however, that it does not accept discovery in the Court
record unless it is used in support of a motion for summary judgment or in reference to a motion
to compel or motion for judgment on the pleadings.
Last, 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,

3

IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in forma
pauperis [Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that plaintiff’s motion to amend her complaint [Doc #5]
is GRANTED.
IT IS FURTHER ORDERED that plaintiff shall amend her complaint, on a courtprovided 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 counsel [Doc.
#3] 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.

SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
Dated this 10th day of October, 2019.

4