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

Filing 55

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiff's motion for default judgment is DENIED. (Doc. No. 40.) IT IS FURTHER ORDERED that Plaintiff's motion for appointment of counsel is DENIED without prejudice. (Doc. No. 42.) IT IS FURTHER ORDERED that Petitioner's motion for "Sanctions andRelief" is DENIED. (Doc. No. 49.) Signed by District Judge Audrey G. Fleissig on 9/11/2013. (NCL)

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

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Case No. 4:12CV01901 AGF

MEMORANDUM AND ORDER
Plaintiff Benjamin W. Wagner, proceeding pro se, brings this action pursuant to
42 U.S.C. § 1983 alleging that during his confinement at the Saint Louis City Justice
Center he failed to receive delivery of his mail, has not been provided with eyeglasses
and has had difficulty accessing the law library. Now before the Court are Plaintiff’s
motions for a default judgment against Defendant Leonora Hatter (“Defendant Hatter”),
for appointment of counsel, and for “Sanctions and Relief.” In his motion for Sanctions
and Relief, Plaintiff alleges that all Defendants retaliated against him for filing lawsuits
and proceeding pro se. Specifically he asserts that Defendants refused to permit him to
serve as a “GED tutor” and refused to change his scheduled time for use of the prison law
library to accommodate the GED tutor position. For the reasons set forth below, each of
these motions will be denied.

Motion for Default Judgment
Plaintiff moves for default judgment against Defendant Hatter asserting that she
failed to timely file her answer in this case. The record before the Court indicates that
Defendant Hatter was served in this matter on February 11, 2013. See Doc. No. 13.
Pursuant to Rule 12 of the Federal Rules of Civil Procedure, Defendant’s answer was due
twenty-one days after service, on March 4, 2013. Defendant Hatter filed her answer on
March 4, 2013. See Doc. No. 19. As Defendant Hatter timely filed her answer in this
matter, there is no ground for entry of default judgment against her.
Motion for Appointment of Counsel
Plaintiff also moves for the appointment of counsel. 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 complexities 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, 437 F.3d. at 794. Upon
review of the file and the relevant factors, the Court finds that appointment of counsel is
unnecessary at this time.
Motion for Sanctions and Relief
Plaintiff alleges in this motion that Defendants have retaliated against him for
filing this suit and for proceeding pro se. Specifically, he alleges that because he is a pro
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se litigant Defendants removed him from two job appointments as law librarian and
“GED Tutor.” Plaintiff seeks “sanctions” and an order requiring Defendants to return
him to one of these positions and adjust his scheduled time in the law library so that he
can work on his legal case and also serve as a librarian or a “GED Tutor.” Plaintiff does
not assert that he has been deprived of access to the law library to work on his case.
In response, Defendants offer the affidavit of a prison administrative assistant
charged with monitoring and arranging for law library access. See Doc. No. 50-1 at ¶ 6
(Affidavit of Verta Barnes). The affiant states that Plaintiff was not selected as a “GED
Tutor” because there are no current openings for “GED Tutors” due to the fact that the
facility has reduced the number of tutors from five to two and reduced the library time
allotted to the GED program. Id. The affiant further provides that Plaintiff was not
denied a position as a “GED Tutor” because of his pro se status. Id. at ¶¶ 8-9. The
affiant also states that a prison administrator is responsible for screening candidates for
the position of “GED Tutor” and has the authority to refuse to place an individual in that
position if, in the administrator’s opinion, the candidate would be unable to effectively
perform the duties of that position. Id. at ¶ 8. In addition, the affiant states that due to the
time constraints the prison places on each inmate’s use of the law library, a pro se litigant
might not be able to serve effectively as a tutor. Id. at ¶¶ 8-9. Finally, although the
scheduled time for Plaintiff’s use of the law library changed, Plaintiff has not been
deprived of access to the law library for purposes of legal research. Id. at ¶¶ 3-4.
In reply, Plaintiff reiterates the chronology of the events set forth in his
complaint. He also asserts that he failed to obtain a third prison job as a result of his pro
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se status and that he has been told that he may not participate in the “Facility Worker
Program” as long as he “remains pro se in his lawsuit.”
Inasmuch as Plaintiff requests an order directing Defendants to appoint him as a
law librarian or GED Tutor, the Court construes Plaintiff’s motion as a request for
injunctive relief. In ruling upon a request for injunctive relief the Court must consider the
factors governing the issuance of preliminary injunctions: “(1) the threat of irreparable
harm to the movant; (2) the state of the balance between this harm and the injury that
granting the injunction will inflict on other parties litigant; (3) the probability that movant
will succeed on the merits; and (4) the public interest.” DISH Network Serv. L.L.C. v.
Laducer, No. 12–2871, 2013 WL 3970245, at *2 (8th Cir. Aug. 5, 2013) (citation
omitted); see also Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir.
1981). The movant, here the Plaintiff, bears the entire burden of proving these factors.
DISH Network Serv. L.L.C., 2013 WL 3970245, at *2.
The Court is mindful that in the prison context a request for injunctive relief “must
always be viewed with great caution because ‘judicial restraint is especially called for in
dealing with the complex and intractable problems of prison administration . . . [t]he
courts should not get involved unless either a constitutional violation has already
occurred or the threat of such a violation is both real and immediate.”’ Goff v. Harper,
60 F.3d 518, 520-21 (quoting Rogers v. Scurr, 676 F .2d 1211, 1214 (8th Cir. 1982)).
Turning first to “the probability that [a] movant will succeed on the merits” of his
claim, the Court concludes that Plaintiff has not met his burden to establish that he is
likely to succeed on a claim under 42 U.S.C. §1983 for retaliation in violation of his First
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Amendment right to pursue legal action against prison officials. To prevail on such a
§1983 claim, a plaintiff must demonstrate “(1) that he engaged in a protected activity; (2)
that the government official took adverse action against him that would chill a person of
ordinary firmness from continuing in the activity; and (3) that the adverse action was
motivated at least in part by the exercise of the protected activity.” Santiago v. Blair, 707
F.3d 984, 991 (8th Cir. 2013). Plaintiff’s pursuit of this lawsuit satisfies the first element
of a claim, but Plaintiff offers little to establish the second and third elements. See
Haynes v. Stephenson, 588 F.3d 1152, 1155-56 (8th Cir. 2009) (holding that either “[t]he
filing of a prison grievance or the filing of an inmate lawsuit, is protected First
Amendment activity”).
Upon consideration of the affidavit and Plaintiff’s pleadings, the Court concludes
that Plaintiff has not shown that adverse action was taken against him because he is
proceeding pro se in this lawsuit. With respect to the second element of his claim,
Plaintiff does not assert that he has been denied adequate time in the law library to pursue
his suit.1 And although Defendants have declined to allow Plaintiff to serve as a law
librarian or “GED Tutor” they have offered evidence that there were no current openings
for the positions. Defendants’ affidavit indicates that Plaintiff may apply for either
position but that the decision to place him in either position rests in the sole discretion of
the prison administrator filling those positions. Finally, Plaintiff has not established a
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The record also indicates that it is unlikely that Plaintiff could prove such an
allegation. See Doc. No. 50-2 (documenting Plaintiff’s access to the law library over the
last several months).

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causal link between the denial and his pro se status because Defendants have unfettered
discretion to determine whether an inmate may serve as a “GED Tutor.”
In addition, Plaintiff has not met his burden to establish a likelihood of succeeding
on the third element of a retaliation claim under §1983 because he does not allege that in
his situation “a person of ordinary firmness” would have been deterred from pursuing a
pro se lawsuit. Santiago, 707 F.3d at 991. Indeed, Plaintiff does not even assert that his
willingness or ability to pursue his suit has been “chilled” because he was denied either
the tutoring or the librarian position. Revels v. Vincenz, 382 F.3d 870, 876 (8th Cir.
2004).
In addition, the Court notes that this motion raises claims and issues that are not
part of Plaintiff’s complaint. Preliminary injunctive relief is appropriate to grant
intermediate relief of the same character as that asserted in the complaint, but
inappropriate for dealing with matters “lying wholly outside issues in the suit.” DeBeers
Consol. Mines v. United States, 325 U.S. 212, 220 (1945); see also Devose v. Herrington,
42 F.3d 470, 471 (8th Cir.1994); Waller v. Maples, No. 1:13CV00025-KGB-JTK, 2013
WL 3992654, at* 2 (E.D. Ark. Aug. 5, 2013).
Finally, Plaintiff has not alleged a basis for a finding of irreparable harm because
as noted above he does not assert that he has been denied adequate time in the law library
to pursue his suit. Novus Franchising, Inc. v. Dawson, --- F.3d ----, 2013 WL 3970250,
at *7 (8th Cir. Aug. 5, 2013) (noting that a failure to show irreparable harm is an
independently sufficient ground upon which to deny a preliminary injunction) (internal
quotation omitted).
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Therefore, in light of the judicial restraint counseled by the Eighth Circuit and
Plaintiff’s failure to carry his burden to establish either a “likelihood of success on the
merits” or “irreparable harm,” Plaintiff’s motion for preliminary injunctive relief will be
denied.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s motion for default judgment is
DENIED. (Doc. No. 40.)
IT IS FURTHER ORDERED that Plaintiff’s motion for appointment of
counsel is DENIED without prejudice. (Doc. No. 42.)
IT IS FURTHER ORDERED that Petitioner’s motion for “Sanctions and
Relief” is DENIED. (Doc. No. 49.)

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 11th day of September, 2013.

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