Wagner v. City of Saint Louis Department of Public Safety et al

Filing 22

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiffs motion for extension of time to pay the initial partial filing fee is GRANTED. IT IS FURTHER ORDERED that plaintiff shall pay an initial partial filing fee of $26.60 no lat er than May 30, 2013. Plaintiff is instructed to make his remittance payable to Clerk, United States District Court, and to include upon it: (1) his name; (2) his prison registration number; (3) the case number; and (4) that the remittance is for an original proceeding. IT IS FURTHER ORDERED that if plaintiff fails to pay the initial partial filing fee byMay 30, 2013, then this case will be dismissed without prejudice. IT IS FURTHER ORDERED that plaintiffs preliminary injunction o rder St. Louis City Department of Corrections to restore inbound and outbound mail toallow me to find out what is happening with my family is DENIED without prejudice. IT IS FURTHER ORDERED that plaintiffs motion to make moredefinite is DENIED.Response to Court due by 5/30/2013. Signed by District Judge Audrey G. Fleissig on 3/8/2013. (KSM)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BENJAMIN W. WAGNER,
Plaintiff,
v.
CITY OF ST. LOUIS DEPT. OF
PUBLIC SAFETY, et al.,
Defendants.

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No. 4:12CV1901 AGF

MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s motions for extension of time
to pay the filing fee and for “preliminary injunction order St. Louis City
Department of Corrections to restore inbound and outbound mail to allow me to
find out what is happening with my family.” [Doc. #14] Also before the Court is
plaintiff’s motion to “make more definite.” [Doc. #21]
Motion for Extension of Time to Pay the Initial Partial Filing Fee
Plaintiff’s request for additional time to pay the initial partial filing fee of
$26.60 will be granted. Plaintiff shall have until May 30, 2013 to pay the initial
partial filing fee to this Court.

Request for Preliminary Injunction
Plaintiff’s request for a “preliminary injunction” will be denied at this time
for a number of reasons. First, the allegations contained in his motion lack a
factual basis on which to grant relief. The entirety of his “allegations” in his
motion include the following statement:
As of receiving this Order on February 6, 2013 I have yet to be able
and reach my wife by phone in that I have no funds available in my
trust account. Due to my deposit for February has not been deposited
in my account. Due to the ongoing issue with my personal mail, I am
not able to wright [sic] her and find out what is going on and why the
deposit has not been made.
So I pray the Honorable Court to grant me a 30 day extension and a
preliminary injunction ordered St. Louis City Dept. Of Corrections to
restore inbound and outbound mail, to allow me to find out what is
happening with my family.
To determine whether preliminary injunctive relief is warranted, the Court
must balance threat of irreparable harm to movant, the potential harm to
nonmoving party should injunction issue, the likelihood of success on merits, and
the public interest. Dataphase Sys. v. CL Sys., 640 F.2d 109, 113-14 (8th Cir.
1981) (en banc). Plaintiff’s “allegations,” as outlined in his motion, simply do not
show a threat of irreparable harm at this time given that the Court is willing to
extend him time to submit his initial partial filing fee until after the parties have

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had a chance to exchange initial disclosures in this action.1 Additionally, the
Court is a bit perplexed as to exactly whom plaintiff wishes to entertain injunctive
relief against.
In his complaint, plaintiff asserts that his mail has been held by defendants
Janice Fairless and Jazeall Brown, including mail that was sent by his wife
containing government documents, certified receipt. Plaintiff claims that receipts
sent to plaintiff’s wife by the United States Postal Service show that the mail was
received by defendants on September 5, 2012, but as of the filing date of the
complaint, plaintiff still had not received his mail from defendants Fairless and
Brown.
As noted in the Court’s initial review Order,2 the withholding of mail claims
survived against only two individual defendants in this action – defendants
Fairless and Brown. Service has not yet been effectuated on either defendant
Fairless or defendant Brown, as both have apparently left employment with the

1

Simultaneously with the instant Memorandum and Order, the Court will
issue a Case Management Order setting the date of May 6, 2013, by which the
parties must exchange initial disclosure documents.
2

See February 1, 2013 Memorandum and Order. Docket No. 7.
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Justice Center.3 The mail claims did not survive against the Department of
Public Safety in its official capacity, as plaintiff did not properly plead a policy or
custom claim against the Department of Public Safety.
Thus, even if the Court presumes that plaintiff’s request for immediate
injunctive relief is based on the allegations outlined in his complaint, it could not
grant him the injunctive relief that he requests in this instance because the two
individual defendants he requests relief against – Brown and Fairless – are no
longer even employed at the place where he is confined. “A court issues a
preliminary injunction in a lawsuit to preserve the status quo and prevent
irreparable harm until the court has an opportunity to rule on the lawsuit's merits.
Thus, a party moving for a preliminary injunction must necessarily establish a
relationship between the injury claimed in the party’s motion and the conduct
asserted in the complaint.” Devose v. Herrington, 42 F.3d 470, 471 (8th Cir.
1994). In this case, there is no relationship between the injury claimed in the
current motion before the Court and the conduct asserted in the complaint relating
to defendants Brown and Fairless. Consequently, the motion for preliminary
injunction will be denied.
3

See Unexecuted Return of Service, Docket Nos. 10 and 11, noting that
Janice Fairless no longer works at 200 S. Tucker Street, St. Louis, Missouri,
63102 and that Jazeall Brown has retired from working from the City of St. Louis.
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Motion to “Make More Definite”
In his “Motion to Make More Definite,” plaintiff requests that the Court
order defendant St. Louis Department of Public Safety to explain a paragraph in its
Answer relating to one of its affirmative defenses. The Court sees no reason to
order defendant to make its statement more definite, as the statement complies
with the affirmative defenses of comparative and/or contributory negligence set
forth in the provisions of Federal Rule of Civil Procedure 8 (c).
Plaintiff would do well to study both the Federal Rules of Civil Procedure
and this Court’s Local Rules prior to bring forth additional motions in this Court.
Although plaintiff is proceeding pro se he is still responsible for complying with
the Federal Rules of Civil Procedure and this Court’s Local Rules. See U.S. v.
Wilkes, 20 F.3d 651, 653 (5th Cir. 1994); Boswell v. Honorable Governor of
Texas, 138 F.Supp.2d 782, 785 (N.D. Texas 2000).
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion for extension of time to
pay the initial partial filing fee is GRANTED.
IT IS FURTHER ORDERED that plaintiff shall pay an initial partial
filing fee of $26.60 no later than May 30, 2013. Plaintiff is instructed to make
his remittance payable to “Clerk, United States District Court,” and to include
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upon it: (1) his name; (2) his prison registration number; (3) the case number; and
(4) that the remittance is for an original proceeding.
IT IS FURTHER ORDERED that if plaintiff fails to pay the initial partial
filing fee by May 30, 2013, then this case will be dismissed without prejudice.
IT IS FURTHER ORDERED that plaintiff’s “preliminary injunction order
St. Louis City Department of Corrections to restore inbound and outbound mail to
allow me to find out what is happening with my family” is DENIED without
prejudice.
IT IS FURTHER ORDERED that plaintiff’s motion to “make more
definite” is DENIED.
Dated this 8th day of March, 2013.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE

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