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

Filing 39

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiffs motion is GRANTED with respect to his request for leave to file an amended complaint, and DENIED as moot with respect o the dismissal of Fairless and Jazell. (Doc. No. 36.)IT IS FURTHER ORDERE D that Plaintiffs motion for appointment of counselis DENIED without prejudice. (Doc. No. 37.) IT IS FURTHER ORDERED that Plaintiffs motion for access to legal books is DENIED without prejudice. (Doc. No. 37.) IT IS FURTHER ORDERED that Plaintiffs request for the issuance of subpoenas is DENIED without prejudice as overbroad. (Doc. No. 38.) Signed by District Judge Audrey G. Fleissig on 5/30/13. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BENJAMIN W. WAGNER ,
Plaintiff,
v.
CITY OF SAINT LOUIS
DEPARTMENT OF PUBLIC SAFETY,
Defendant.

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Case No. 4:12CV01901 AGF

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s request to amend his complaint, to
dismiss Janice Fairless and Jazell Brown as defendants, for appointment of counsel and
an order allowing Plaintiff access “to legal books” while incarcerated at the Saint Louis
City Justice Center, and for the issuance of subpoenas.
Dismissal of Defendants Fairless and Brown
Inasmuch as the Court dismissed the allegations against Fairless and Brown in a
prior order (Doc. No. 33), that motion is moot.
Appointment of Counsel
With respect to Plaintiff’s motion for appointment of counsel, the Court notes that
there is no constitutional right for a pro se plaintiff to have counsel appointed in a civil
case, although a district court has discretion to appoint an attorney to handle such a case
when necessary. Chambers v. Pennycook, 641 F.3d 898, 909 (8th Cir. 2011); Phillips v.
Jasper County Jail, 437 F.3d. 791, 794 (8th Cir. 2006). Among the factors a court should

consider in making this determination are the legal and factual complexity of the case; the
ability of the plaintiff to investigate the facts and present his claim; and to what degree
the plaintiff and the court would benefit from such an appointment. Phillips, 791 F.3d at
794; Edgington v. Mo. Dep’t of Corr., 52 F.3d 777, 780 (8th Cir. 1995).
Upon review of the file and the relevant factors, the Court finds that appointment
of counsel is unnecessary at this time, because the legal issues presented are relatively
straight-forward and Plaintiff has demonstrated the ability to clearly and adequately
present his claim.
Access to Legal Books
With respect to Plaintiff’s request for issuance of an order allowing him access to
specific legal books, the Court notes that Plaintiff has access to a law library and
concludes on the basis of the reasoning set forth in its Order of May 1, 2013 (Doc. No.
34), that Plaintiff has not established prejudice as a ground for the issuance of an order
compelling access to a law library or a legal research database. Bandy-Bey v. Crist, 578
F.3d 763, 765 (8th Cir. 2009) (internal citation omitted) (requiring plaintiff to show that
defendants’ failure to grant him the library time he requested “resulted in an actual injury,
that is, the hindrance of a nonfrivolous and arguably meritorious underlying legal
claim”); see also Hartsfield v. Nichols, 511 F.3d 826, 831 (8th Cir. 2008) (quoting Lewis
v. Casey, 518 U.S. 343, 351(1996)) (holding that a plaintiff ‘“might show, for example,
that a complaint he prepared was dismissed for failure to satisfy some technical
requirement which, because of deficiencies in the prison’s legal assistance facilities, he
could not have known. Or that he had suffered arguably actionable harm that he wished
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to bring before the courts, but was so stymied by inadequacies of the law library that he
was unable even to file a complaint.’”).
Request for Subpoenas
Construing Plaintiff’s request for the issuance of subpoenas as a request for the
production of documents, the Court concludes that the request lacks specificity, is
overbroad, and fails to establish the minimum showing of relevance necessary to justify
such a broad range of documents. See Fed. R. Civ. P. 26 (b)(1).
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s motion is GRANTED with respect
to his request for leave to file an amended complaint, and DENIED as moot with respect
to the dismissal of Fairless and Jazell. (Doc. No. 36.)
IT IS FURTHER ORDERED that Plaintiff’s motion for appointment of counsel
is DENIED without prejudice. (Doc. No. 37.)
IT IS FURTHER ORDERED that Plaintiff’s motion for “access to legal books”
is DENIED without prejudice. (Doc. No. 37.)
IT IS FURTHER ORDERED that Plaintiff’s request for the issuance of
subpoenas is DENIED without prejudice as overbroad. (Doc. No. 38.)

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 30th day of May, 2013.

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