Davis v. Walsh

Filing 4

MEMORANDUM AND ORDER re: 2 MOTION to Appoint Counsel filed by Plaintiff Earlesha Davis, 3 MOTION for Leave to Proceed in forma pauperis filed by Plaintiff Earlesha Davis. ( Amended/Supplemental Pleadings due by 4/11/2025.)IT IS HEREBY ORDE RED that Plaintiff's Motion for Leave to Proceed in forma pauperis [ECF No. 3] is GRANTED and the filing fee is waived. IT IS FURTHER ORDERED that Plaintiff's Motion to Appoint Counsel [ECF No. 2] is DENIED without prejudice. IT IS FURTHER ORDERED that the Clerk of Court shall mail Plaintiff a blank Employment Discrimination Complaint form. IT IS FURTHER ORDERED that Plaintiff shall file an amended complaint, within thirty (30) days of the date of this Order, on the Court-provided Emp loyment Discrimination Complaint form in accordance with the instructions set forth in that form and in this Memorandum and Order. Plaintiff shall attach her EEOC Charge of Discrimination and EEOC Notice of Right to Sue. Failure to timely comply with this Order may result in the dismissal of this action without prejudice. Signed by Magistrate Judge Abbie Crites-Leoni on 03/11/2025. (CMH)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
EARLESHA DAVIS,
Plaintiff,
v.
TERRY WALSH,
Defendant.

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Case No. 4:25-CV-113-ACL

MEMORANDUM AND ORDER
Self-represented Plaintiff Earlesha Davis brings this employment discrimination action
under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e, et seq., alleging
discrimination based on race and color. ECF No. 1. Now before the Court is Plaintiff’s Motion
for Leave to Proceed in forma pauperis, or without prepayment of fees and costs. ECF No. 3.
Upon consideration of the financial information submitted in support of the motion, the Court finds
that Plaintiff is unable to pay the filing fee. The motion will be granted, and the fee will be waived.
See 28 U.S.C. § 1915(a)(1). Because Plaintiff is now proceeding in forma pauperis, her complaint
must be reviewed under 28 U.S.C. § 1915(e)(2)(B). Based on that review, the Court will direct
Plaintiff to file an amended complaint within thirty (30) days, on a Court-provided form, in
compliance with the instructions set out below. Plaintiff should file her EEOC Charge of
Discrimination and Right-to-Sue letter with her amended complaint. Finally, Plaintiff has also
filed a Motion for Appointment of Counsel. ECF No. 2. Because there is no constitutional right
to appointment of counsel in civil cases and it would be premature to grant appointment at this
stage in the proceeding, the Court will deny Plaintiff’s Motion for Counsel, subject to refiling at a
later date.

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Legal Standard on Initial Review
Under 28 U.S.C. § 1915(e)(2), the Court may dismiss a complaint filed in forma pauperis
if the action is frivolous or malicious, fails to state a claim upon which relief can be granted, or
seeks monetary relief against a defendant who is immune from such relief. When reviewing a
complaint filed by a self-represented person under 28 U.S.C. § 1915, the Court accepts the wellpleaded facts as true, White v. Clark, 750 F.2d 721, 722 (8th Cir. 1984), and it liberally construes
the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007); 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 the claim to be considered
within the proper legal framework. Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015).
However, even self-represented plaintiffs 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) (refusing to supply additional facts or to
construct a legal theory for the self-represented plaintiff).
To state a claim for relief, a complaint must plead more than “legal conclusions” and
“[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere conclusory
statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plaintiff must demonstrate a plausible
claim for relief, which is more than a “mere possibility of misconduct.” Id. at 679. “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 on its judicial experience and common sense. Id. at 679.

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Plaintiff’s Complaint
Plaintiff initiated this employment discrimination action on a form complaint, naming a
single defendant, Terry Walsh. ECF No. 1 at 1-2. Plaintiff’s pleadings do not explain who
defendant Walsh is or state any allegations of wrongdoing against her. Instead, the Complaint
alleges Title VII discrimination, based on race and color, against her prior employer—who appears
to be Friendship Village (but this is never explicitly stated by Plaintiff). Id. at 5; ECF No. 1-4 at
2. Plaintiff asserts that she suffered unfair terms and conditions of employment, termination, and
retaliation. ECF No. 1 at 4. The alleged discrimination occurred between October 15 and 22,
2024. Id. at 3.
The factual basis of Plaintiff’s case appears to be contained in two attachments to the
Complaint. 1 ECF No. 1-4 at 1-3. Plaintiff attached an email that she sent to herself. Id. at 1. In
that email, Plaintiff details how she complained to her nurse manager Angela during her October
15, 2024 shift about a change in assignments mid-way through her shift. Angela “corrected the
assignment schedule” and then Plaintiff went on break. While on break, Angela asked Plaintiff to
help a coworker with something. When Plaintiff refused to help until her break was over, Plaintiff
and Angela argued. Angela accused Plaintiff of having an “attitude” and stated: “you people
always have an attitude.” Plaintiff complained to the administration the next day about the
incident, asserting that Angela was “discriminating” against her and “being unfair.” Id. Later that
day, Plaintiff received a “verbal warning” about questioning Angela about assignments and talking
disrespectfully. Id. at 1-3. Plaintiff was then placed on administrative leave pending investigation.

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In assessing whether a complaint sufficiently states a valid claim for relief, courts may consider
materials that are attached to the complaint as exhibits. Reynolds v. Dormire, 636 F.3d 976, 979
(8th Cir. 2011) (citations omitted); Fed. R. Civ. P. 10(c) (“A copy of a written instrument that is
an exhibit to a pleading is a part of the pleading for all purposes.”).
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A few days later, on October 22, 2024, Plaintiff was fired. Id. at 1.
Plaintiff states that she filed a Charge of Discrimination with the EEOC, but she does not
provide the date of the filing, nor does she attach the Charge to her Complaint. See ECF No. 1 at
3 (leaving “Date filed” line blank). Plaintiff did attach a Right-to-Sue letter, dated December 29,
2024; however, the letter does not name any employer or state who Plaintiff filed her Charge of
Discrimination against. See ECF No. 1-3. The letter only references “Charge No. 560-202500672.” Id. at 1.
Finally, in terms of relief, Plaintiff seeks for the Court to “make [her] life whole,” “pain
and suffering,” and “loss of wages.” Id. at 7.
Discussion
Based on a careful review and liberal construction of the filings before the Court, Plaintiff
has not adequately alleged claims to withstand review under 28 U.S.C. § 1915(e)(2). Because
Plaintiff is self-represented and she has presented serious allegations to the Court, she will be
allowed to amend her complaint in accordance with the instructions set forth below. See Munz v.
Parr, 758 F.2d 1254 (8th Cir. 1985) (discussing how a court should give a self-represented plaintiff
a statement of the complaint’s deficiencies and a chance to amend the complaint before dismissing
for failure to state a claim). Plaintiff should attempt to cure the following pleading deficiencies in
the filing of an amended complaint.
I.

Correct Defendant
The Court cannot decipher from the pleadings who defendant Terry Walsh is and why

Plaintiff named him as the defendant in this matter. Walsh is not mentioned in the factual
allegations of the pleadings. Furthermore, Plaintiff never states the exact name of her past
employer, who she was working for when the alleged discrimination occurred. Plaintiff’s past

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employer is the properly named defendant in this Title VII matter.
Title VII prohibits “unlawful employment practice[s]” by an “employer” only. See 42
U.S.C. § 2000e-2(a). That is, while Title VII covers the conduct of employers, it does not impose
individual liability. See Powell v. Yellow Book USA, Inc., 445 F.3d 1074, 1079 (8th Cir. 2006)
(“Title VII addresses the conduct of employers only and does not impose liability on co-workers”).
In other words, “supervisors and other employees cannot be held liable under Title VII in their
individual capacities.” Lenhardt v. Basic Inst. of Tech., Inc., 55 F.3d 377, 381 (8th Cir. 1995). As
such, claims against individual defendants are subject to dismissal. See Smith v. St. Bernards Reg’l
Med. Ctr., 19 F.3d 1254, 1255 (8th Cir. 1994) (concluding “that the claims against the individual
defendants were properly dismissed because liability under 42 U.S.C. § 2000e(b) can attach only
to employers”). Therefore, in filing her amended complaint, Plaintiff should only name her past
employer as the defendant, and not any individuals with whom she worked.
II.

File Charge of Discrimination
The confusion on the name of Plaintiff’s past employer is amplified by the fact that the

Right-to-Sue letter filed by Plaintiff does not state who she filed her EEOC discrimination claim
against. See ECF No. 1-3. Before bringing suit under Title VII, a plaintiff must first file a charge
of discrimination with the EEOC and receive a right-to-sue letter. Stuart v. Gen. Motors Corp.,
217 F.3d 621, 630 (8th Cir. 2000). Although Plaintiff has attached her Right-to-Sue letter to her
Complaint, she has not provided the Court with a copy of her Charge of Discrimination.
Consequently, the Court will order Plaintiff to include both her Right-to-Sue letter and her Charge
of Discrimination (regarding “Charge No. 560-2025-00672”) with her amended complaint, so that
the Court may ascertain whether Plaintiff’s claims in her pleadings are likely or reasonably related
to the claims outlined in her Charge. See Duncan v. Delta Consol. Indus., Inc., 371 F.3d 1020,

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1024 (8th Cir. 2004); ECF No. 1-3 at 1.
III.

Minimum Pleading Requirements to State a Title VII Claim
Plaintiff brings this action under Title VII which makes it unlawful for an employer to

discriminate against an individual on the basis of race, color, religion, sex, or national origin. 42
U.S.C. § 2000e-2(a)(1). To establish a prima facie case of Title VII discrimination, a plaintiff
must show that she: (1) is a member of a protected class; (2) was meeting her employer’s legitimate
job expectations; (3) suffered an adverse employment action; and (4) was treated differently than
similarly situated employees who were not members of his protected class. Jackman v. Fifth Jud.
Dist. Dep’t of Corr. Servs., 728 F.3d 800, 804 (8th Cir. 2013) (citation omitted).
Plaintiff’s Complaint in this matter fails to meet these requirements. Plaintiff alleges
discrimination on the basis of race and color, but she never specifies her own race or color, nor
does she allege membership in any protected class. The Court cannot assume facts that are not
alleged in the complaint. Stone v. Harry, 364 F.3d 912, 914-15 (8th Cir. 2004). In addition,
Plaintiff never details any disparate treatment. The Complaint is void of any allegations that
similarly situated employees of a different race or color were treated more favorably. Plaintiff’s
amended complaint must allege enough facts to state a plausible claim for relief. See Iqbal, 556
U.S. at 679. Plaintiff must plead factual content which allows the Court to draw a reasonable
inference that her past employer is liable for misconduct. Id. at 678.
Plaintiff also alleges a Title VII retaliation claim. ECF No. 1 at 4. Title VII prohibits
retaliation against an employee “because he has opposed any practice made an unlawful
employment practice by [Title VII], or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under [Title VII].” 42
U.S.C. § 2000e–3(a). In this case, there are no factual allegations regarding any retaliatory

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behavior whatsoever. Although the Court must liberally construe self-represented complaints,
Plaintiff must plead enough factual allegations for her claims to be plausible. See Iqbal, 556 U.S.
at 679.
Instructions for Filing an Amended Complaint
Plaintiff must prepare her amended complaint using a Court-provided form, and she must
follow Rules 8 and 10 of the Federal Rules of Civil Procedure. Her self-represented status does
not excuse her from following the Federal Rules of Civil Procedure or the Local Rules of this
Court. See Ackra Direct Mktg. Corp. v. Fingerhut Corp., 86 F.3d 852, 856-57 (8th Cir. 1996).
Rule 8 requires Plaintiff to set forth a short and plain statement of the claim showing
entitlement to relief, and it also requires that each averment be simple, concise, and direct. Rule
8(a)(2) sets forth a “notice pleading standard” and simply requires “a short and plain statement of
the claim showing that the pleader is entitled to relief.” “Such a statement must simply give the
defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.”
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002).
Rule 10(b) requires Plaintiff to state her claims in separately numbered paragraphs, each
limited as far as practicable to a single set of circumstances. Each count shall then set forth in
separate, numbered paragraphs: 1) the relevant facts supporting the claim; 2) the constitutional,
statutory, or other right that defendant violated; and 3) the relief Plaintiff seeks for the claim (for
example, money damages or equitable relief). Plaintiff shall follow the same format with respect
to each claim. In stating the facts of a claim, Plaintiff must describe the conduct she alleges is
unlawful and the date(s) such conduct occurred, if known. In other words, Plaintiff must describe
the adverse employment action(s) she believes was taken, when it was taken, why it amounted to
discrimination or other unlawful conduct, and the basis for such discrimination or unlawful

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conduct (that is, race, religion, color, disability, etc.).
Plaintiff must also attach a complete copy of her EEOC Charge of Discrimination and
EEOC Notice of Right to Sue. These documents will be considered a part of the amended
complaint for all purposes. Fed. R. Civ. P. 10(c). The Court will direct the Clerk of Court to
provide Plaintiff with a blank Employment Discrimination Complaint form, and Plaintiff will have
thirty (30) days from the date of this Memorandum and Order to file an amended complaint on
the form provided. The amended complaint must be signed under penalty of perjury and completed
in accordance with the instructions provided in the form, as well as the instructions provided in
this Memorandum and Order. Plaintiff is cautioned that the filing of an amended complaint
completely replaces all earlier filed complaints in this action. Claims that are not realleged are
deemed abandoned. E.g., In re Wireless Tel. Fed. Cost Recovery Fees Litig., 396 F.3d 922, 928
(8th Cir. 2005).
Denial of Motion for Appointment of Counsel
Finally, Plaintiff has also filed a motion for the appointment of counsel. ECF No. 2. The
appointment of counsel for an indigent plaintiff in a civil matter lies within the discretion of the
Court. Phillips v. Jasper Cnty. Jail, 437 F.3d 791, 794 (8th Cir. 2006). 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). Once the plaintiff has alleged a prima facie claim, the Court must
determine the plaintiff’s need for counsel to effectively litigate her claim. In re Lane, 801 F.2d
1040, 1043 (8th Cir. 1986). The standard for appointment of counsel in a civil case is whether
both the plaintiff and the Court would benefit from the assistance of counsel. Edgington v. Mo.
Dep’t of Corr., 52 F.3d 777, 780 (8th Cir. 1995), abrogated on other grounds by Doe v. Cassel,
403 F.3d 986, 989 (8th Cir. 2005). This determination involves the consideration of several

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relevant criteria, including “the factual complexity of the issues, the ability of the indigent person
to investigate the facts, the existence of conflicting testimony, the ability of the indigent person to
present the claims, and the complexity of the legal arguments.” Phillips, 437 F.3d at 794 (citing
Edgington, 52 F.3d at 780).
In this matter, the Court finds that appointment of counsel is not warranted at this time.
The action appears to involve straightforward questions of fact rather than complex questions of
law. Further, the request for counsel is premature, as no defendant has been served, and the Court
has not issued any Case Management Order. The Court concludes that the appointment of counsel
would not be of sufficient benefit to the Court or to Plaintiff at this time, and will deny Plaintiff’s
motion for appointment of counsel, without prejudice.
Conclusion
Plaintiff’s motion to proceed in forma pauperis will be granted and the filing fee will be
waived. However, Plaintiff’s Complaint does not survive review under 28 U.S.C. § 1915(e)(2)(B)
so she must file an amended complaint on a Court-provided form within thirty (30) days of this
Order, in an attempt to cure her pleading deficiencies. Plaintiff should attach a complete copy of
her EEOC Charge of Discrimination and EEOC Notice of Right to Sue. Finally, as there is no
constitutional right to counsel in civil cases, Plaintiff’s motion for counsel will be denied at this
time, subject to refiling at a later date. Because Plaintiff is proceeding in forma pauperis, the Court
will also review the amended complaint pursuant to 28 U.S.C. § 1915 for frivolousness,
maliciousness and/or failure to state a claim. A claim must survive § 1915 review in order for
Plaintiff to proceed in this lawsuit.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Leave to Proceed in forma

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pauperis [ECF No. 3] is GRANTED and the filing fee is waived.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Appoint Counsel [ECF No. 2] is
DENIED without prejudice.
IT IS FURTHER ORDERED that the Clerk of Court shall mail Plaintiff a blank
Employment Discrimination Complaint form.
IT IS FURTHER ORDERED that Plaintiff shall file an amended complaint, within thirty
(30) days of the date of this Order, on the Court-provided Employment Discrimination Complaint
form in accordance with the instructions set forth in that form and in this Memorandum and Order.
Plaintiff shall attach her EEOC Charge of Discrimination and EEOC Notice of Right to Sue.
Failure to timely comply with this Order may result in the dismissal of this action
without prejudice.
Dated this 11th day of March, 2025.
/s/ Abbie Crites-Leoni
ABBIE CRITES-LEONI
UNITED STATES MAGISTRATE JUDGE

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