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

Filing 7

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis [Doc. #2] is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $26.60 within thirty (30) days of the date of this Order. 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 within thirty (30) days of the date of this Order, then this case will be dismissed without prejudice. IT IS FURTHER ORDERED tha t the Clerk shall issue process or cause process to issue upon the complaint as to defendants Leonora Hatter, Jazeall Brown and Janice Fairless in their individual capacities. The Clerk shall also issue process on the City of St. Louis, Department o f Public Safety, in its official capacity. IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2), defendants Leonora Hatter, Jazeall Brown, Janice Fairless and the City of St. Louis, Department of Public Safety shall reply to pl aintiffs claims within the time providedby the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint as to defend ants T. Henderson, Charles Bryson, Ken McCain, Corizon, Inc., Julius Smith, Reginald Moore, John Doe Assistant Superintendent, Leonard Edwards and Dale Glass because, as to these defendants, the complaint is legally frivolous or fails to state a clai m upon which relief can be granted, or both. IT IS FURTHER ORDERED that plaintiffs claims against defendants Leonora Hatter, Jazeall Brown and Janice Fairless, in their official capacities, are also subject to dismissal, for failure to state a claim upon which relief can be granted. To the extent plaintiff brought a claim against the City of St. Louis, Department of Public Safety, in its individual capacity, this claim is also subject to dismissal for failure to state a claim. IT IS FURTHER ORDERED that plaintiffs motion for appointment of counsel [Doc. #4] is DENIED. IT IS FURTHER ORDERED that plaintiffs request for subpoenas [Doc. #6] is DENIED. IT IS FURTHER ORDERED that this case is assigned to Track 5B: Prisoner Standard. An appropriate Order of Partial Dismissal shall accompany this Memorandum and Order.(Response to Court due by 3/1/2013.) Signed by District Judge Audrey G. Fleissig on 2/1/2013. (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 upon the motion of plaintiff (registration no.
140519), an inmate at St. Louis City Justice Center, for leave to commence this action
without payment of the required filing fee. For the reasons stated below, the Court
finds that plaintiff does not have sufficient funds to pay the entire filing fee and will
assess an initial partial filing fee of $26.60. See 28 U.S.C. § 1915(b)(1). Furthermore,
after reviewing the complaint, the Court will partially dismiss the complaint and will
order the Clerk to issue process or cause process to be issued on the non-frivolous
portions of the complaint.
28 U.S.C. § 1915(b)(1)
Pursuant to 28 U.S.C. § 1915(b)(1), a prisoner bringing a civil action in forma
pauperis is required to pay the full amount of the filing fee. If the prisoner has

insufficient funds in his or her prison account to pay the entire fee, the Court must
assess and, when funds exist, collect an initial partial filing fee of 20 percent of the
greater of (1) the average monthly deposits in the prisoner’s account, or (2) the average
monthly balance in the prisoner’s account for the prior six-month period. After
payment of the initial partial filing fee, the prisoner is required to make monthly
payments of 20 percent of the preceding month’s income credited to the prisoner’s
account. 28 U.S.C. § 1915(b)(2). The agency having custody of the prisoner will
forward these monthly payments to the Clerk of Court each time the amount in the
prisoner’s account exceeds $10, until the filing fee is fully paid. Id.
Plaintiff has submitted an affidavit and a certified copy of his prison account
statement for the six-month period immediately preceding the submission of his
complaint. A review of plaintiff’s account indicates an average monthly deposit of
$133.00, and an average monthly balance of $89.95. Plaintiff has insufficient funds to
pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee
of $26.60, which is 20 percent of plaintiff’s average monthly deposit.
28 U.S.C. § 1915(e)
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court must dismiss a complaint filed
in forma pauperis if the action is frivolous, malicious, fails to state a claim upon which
relief can be granted, or seeks monetary relief from a defendant who is immune from
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such relief. An action is frivolous if it “lacks an arguable basis in either law or fact.”
Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action is malicious if it is
undertaken for the purpose of harassing the named defendants and not for the purpose
of vindicating a cognizable right. Spencer v. Rhodes, 656 F. Supp. 458, 461-63
(E.D.N.C. 1987), aff’d 826 F.2d 1059 (4th Cir. 1987).
To determine whether an action fails to state a claim upon which relief can be
granted, the Court must engage in a two-step inquiry. First, the Court must identify the
allegations in the complaint that are not entitled to the assumption of truth. Ashcroft
v. Iqbal, 129 S. Ct. 1937, 1950-51 (2009). These include “legal conclusions” and
“[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere
conclusory statements.” Id. at 1949. Second, the Court must determine whether the
complaint states a plausible claim for relief. Id. at 1950-51. This is a “context-specific
task that requires the reviewing court to draw on its judicial experience and common
sense.” Id. at 1950. The plaintiff is required to plead facts that show more than the
“mere possibility of misconduct.” Id. The Court must review the factual allegations
in the complaint “to determine if they plausibly suggest an entitlement to relief.” Id.
at 1951. When faced with alternative explanations for the alleged misconduct, the
Court may exercise its judgment in determining whether plaintiff’s conclusion is the

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most plausible or whether it is more likely that no misconduct occurred. Id. at 1950,
51-52.
The Complaint
Plaintiff, an inmate at the St. Louis City Justice Center, brings this action
pursuant to 42 U.S.C. § 1983 alleging violations of his civil rights. Named as
defendants are: the City of St. Louis Department of Public Safety; Dale Glass
(Commissioner, Division of Corrections); Leonard Edwards (Superintendent, Division
of Corrections); John Doe (Asst. Superintendent, Division of Corrections); Reginald
Moore (Correctional Unit Manager); T. Henderson (Constituency Officer, Division of
Corrections); Janice Fairless (Mailroom, Division of Corrections); Jazeall Brown
(Mailroom, Division of Corrections); Julius Smith (Social Worker, Division of
Corrections); Charles Bryson (Director, Division of Corrections); Corizon, Inc.; and
Ken McCain (Director, Corizon, Inc.). Each defendant is sued individually and in his
or her official capacity.
Plaintiff asserts that his mail has been held by defendants Fairless and 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 shows that the mail was received by defendants on September 5, 2012, but as

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of the filing date of the complaint, plaintiff still had not received his mail from
defendants Fairless and Brown.
Plaintiff also complains that his access to Courts has been violated when he had
to wait more than a month for his library requests to be answered. Plaintiff asserts that
he was told that an inmate had to have a court order stating that he was pursuing a case
pro se to be allowed access to the law library. He claims that he got a court order but
that it was ignored and he was still denied access to the law library. Plaintiff has failed
to articulate, however, how his wait for library access has affected any ongoing
litigation he might currently have or have had in the past.
Last, plaintiff complains that he was denied access to his eyeglasses at intake
into the jail because his eyeglass frames were metal. He claims that it took his wife
several months to have new frames made and when they were finally made available
to plaintiff, they were made from an old prescription and he has had trouble seeing.
Plaintiff states that since his incarceration at the Justice Center he has requested
prescription lenses on several occasions but he has been denied them by Leonora
Hatter. Just recently plaintiff states he has been told that it is Justice Center Policy, or
a policy of the City of St. Louis, to deny eyeglasses to inmates until they have been
incarcerated for at least one year.
Plaintiff seeks monetary damages and injunctive relief.
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Discussion
“Liability under § 1983 requires a causal link to, and direct responsibility for, the
alleged deprivation of rights.” Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir.
1990); see also Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985) (claim not
cognizable under § 1983 where plaintiff fails to allege defendant was personally
involved in or directly responsible for incidents that injured plaintiff); Boyd v. Knox,
47 F.3d 966, 968 (8th Cir. 1995) (respondeat superior theory inapplicable in § 1983
suits). In the instant action, plaintiff has not set forth any facts indicating that
defendants Glass, Edwards, John Doe Assistant Superintendent, Moore, Smith, Bryson
or McCain were directly involved in or personally responsible for the alleged violations
of his constitutional rights. As a result, the complaint fails to state a claim upon which
relief can be granted as to these defendants. Keeper v. King, 130 F.3d 1309, 1314 (8th
Cir. 1997) (noting that general responsibility for supervising operations of prison is
insufficient to establish personal involvement required to support liability under §
1983); Woods v. Goord, 1998 WL 740782, at *6 (S.D.N.Y. October 23, 1998)
(receiving letters or complaints does not render prison officials personally liable under
§ 1983).
“To state a claim that a law library or legal assistance program violates this right,
inmates must assert that they suffered an actual injury to pending or contemplated legal
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claims.” Myers v. Hundley, 101 F.3d 542, 544 (8th Cir. 1996). Plaintiff has failed to
allege he suffered an injury to a pending or contemplated legal claim. As a result, his
access to courts claim fails as a matter of law.
The instant complaint does not contain any allegations that a policy or custom
of Corizon was responsible for the alleged violations of plaintiff’s constitutional rights.
As a result, the complaint fails to state a claim upon which relief can be granted in
relation to Corizon.
Plaintiff, however, does allege that a policy or custom of the City of St. Louis
caused a deliberate indifference to his medical needs. In other words, he claims that
the Department of Public Safety, Division of Corrections, has a policy that does not
allow inmates to receive eyeglasses until they have been incarcerated for one year. He
alleges that he needed eyeglasses and that he was denied medical treatment, or
treatment for his eye disorder, by defendant Hatter, as well as by the policy initiated
and enforced by the City of St. Louis. Thus, the Court will issue process on defendant
Hatter individually,1 and the City of St. Louis, Department of Public Safety, officially,
for deliberate indifference to plaintiff’s serious medical needs.

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Any claims against defendant Hatter in her official capacity are claims
against Corizon which, as noted above, are subject to dismissal as plaintiff has not
alleged the existence of such a policy initiated by Corizon.
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Last, plaintiff claims that he was denied his mail by defendants Brown and
Fairless. Plaintiff’s claims against defendants Brown and Fairless in their individual
capacities state a claim upon which relief may be granted, however, his claims against
them in their official capacities will be dismissed, as he has not stated that they acted
pursuant to an official custom or policy.
Thus, the Court will order the Clerk to issue process on defendants Brown and
Fairless and Hatter in their individual capacities, as well as the City of St. Louis,
Department of Public Safety in its official capacity. Plaintiff’s remaining claims and
defendants will be dismissed without prejudice for failure to state a claim.
The Court will additionally deny plaintiff’s motion for appointment of counsel
at this time, as this case is reasonably straightforward. 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,
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728 F.2d at 1005. Plaintiff’s complaint is well-written and his claims are not so
complex as to warrant counsel at this time. As such, his request for counsel will be
denied.
Plaintiff’s request for subpoenas will also be denied. Because plaintiff is a
prisoner, this case is assigned to Track 5 of the Differentiated Case Management
Program of the United States District Court of the Eastern District of Missouri. See
E.D. Mo. L.R. 16 - 5.01, 16 - 5.04. In Track 5 cases, discovery may not take place
until authorized by the Court and a schedule is set forth in a Track 5 Case Management
Order. The Court has not yet authorized discovery in this action, and it will not do so
until defendants have been served and they have filed an answer to plaintiff’s
complaint. As a result, plaintiff’s request for subpoenas will be denied at this time.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma
pauperis [Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of
$26.60 within thirty (30) days of the date of this Order. 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.
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IT IS FURTHER ORDERED that if plaintiff fails to pay the initial partial
filing fee within thirty (30) days of the date of this Order, then this case will be
dismissed without prejudice.
IT IS FURTHER ORDERED that the Clerk shall issue process or cause
process to issue upon the complaint as to defendants Leonora Hatter, Jazeall Brown
and Janice Fairless in their individual capacities. The Clerk shall also issue process on
the City of St. Louis, Department of Public Safety, in its official capacity.
IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2),
defendants Leonora Hatter, Jazeall Brown, Janice Fairless and the City of St. Louis,
Department of Public Safety shall reply to plaintiff’s claims within the time provided
by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that the Clerk shall not issue process or cause
process to issue upon the complaint as to defendants T. Henderson, Charles Bryson,
Ken McCain, Corizon, Inc., Julius Smith, Reginald Moore, John Doe Assistant
Superintendent, Leonard Edwards and Dale Glass because, as to these defendants, the
complaint is legally frivolous or fails to state a claim upon which relief can be granted,
or both.
IT IS FURTHER ORDERED that plaintiff’s claims against defendants
Leonora Hatter, Jazeall Brown and Janice Fairless, in their official capacities, are also
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subject to dismissal, for failure to state a claim upon which relief can be granted. To
the extent plaintiff brought a claim against the City of St. Louis, Department of Public
Safety, in its individual capacity, this claim is also subject to dismissal for failure to
state a claim.
IT IS FURTHER ORDERED that plaintiff’s motion for appointment of
counsel [Doc. #4] is DENIED.
IT IS FURTHER ORDERED that plaintiff’s request for subpoenas [Doc. #6]
is DENIED.
IT IS FURTHER ORDERED that this case is assigned to Track 5B: Prisoner
Standard.
An appropriate Order of Partial Dismissal shall accompany this Memorandum
and Order.
Dated this 1st day of February, 2013.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE

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