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

Filing 89

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiffs motion for protective order is DENIED. (Doc. No. 65.) IT IS FURTHER ORDERED that Plaintiffs October 25, 2013 motion to amend his complaint is DENIED. (Doc. No. 66.) IT IS FURTHER ORDERED that Defendants motion summary judgment isGRANTED. (Doc. No. 67.) IT IS FURTHER ORDERED that Plaintiffs December 4, 2013 motion to amend his complaint is DENIED. (Doc. No. 72.) IT IS FURTHER ORDERED that Plaintiffs motion for direct access to Westlaw Onl ine is DENIED as moot. (Doc. No. 74.) IT IS FURTHER ORDERED that Plaintiffs motion for court order for access to phone is DENIED as moot. (Doc. No. 76.) IT IS FURTHER ORDERED that Plaintiffs motion to compel and for sanctions is DENIED. (Doc. No. 81. ) IT IS FURTHER ORDERED that Plaintiffs motion for court order (related to law library access) is DENIED without prejudice. (Doc. No. 85.)IT IS FURTHER ORDERED that Plaintiffs allegations regarding violation of his First Amendment rights due to the alleged withholding of his mail are DISMISSEDwithout prejudice for failure to prosecute. A separate judgment shall accompany this Memorandum and Order. Signed by District Judge Audrey G. Fleissig on 7/16/14. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BENJAMIN 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 Wagner proceeding pro se and in forma pauperis brings this
action against Defendants, the City of Saint Louis Department of Public Safety (the
“SLDPS”) and Leonora (Muhammad) Hatter, the Director of Nursing at the St. Louis
City Justice Center (the “CJC”), alleging, pursuant to 42 U.S.C. § 1983, violation of his
constitutional rights.1 Plaintiff was, at the times relevant to this suit, a pretrial detainee in
the custody of the CJC. 2 Plaintiff asserts that Defendant Hatter unlawfully denied his
requests for prescription eyeglasses, and that the SLDPS violated his rights under the
Eighth Amendment pursuant to a policy to deny prescription eyeglasses until they have
been incarcerated for one year.
This matter is before the Court on Plaintiff’s motions to amend the complaint, for

1

Plaintiff originally named two other Defendants, Janice Fairless and Jazeall Brown
against whom Plaintiff asserted claims that he was denied his mail. Plaintiff failed to
provide addresses for service upon either of these individuals and the Court dismissed the
claims against them without prejudice for failure to prosecute. See Doc. No. 33.
2
As of the date of this Order, Plaintiff is no longer an inmate at the CJC.

protective order, to compel, and for injunctive relief with respect to certain conditions of
his confinement.3 Also before the Court is Defendants’ motion for summary judgment.
For the reasons set forth below, Plaintiff’s motions are denied and Defendants’ motion
for summary judgment is granted.
I. Procedural Background
The procedural history relevant to the motions pending before the Court is set
forth below.
Plaintiff filed this case on October 15, 2012. Plaintiff was granted in forma
pauperis status and certain of his claims were dismissed pursuant to 28 U.S. C. §
1915(e)(2)(B). Under the Case Management Order (“CMO”) entered in the case, all
motions for amendment of pleadings were to be filed not later than May 6, 2013, and all
discovery including the filing of motions to compel was to be completed by October 7,
2013. See Doc. No. 24 at ¶ 4 (providing that “[p]arties shall file motions to compel in a
prompt manner and in no event after the discovery deadline”).
On May 3, 2013, Plaintiff requested leave to amend his complaint to add a claim
and parties alleging that the SLDPS and two individual SLDPS employees violated his
First Amendment rights by withholding his mail from May, 2012 to May, 2013. The
Court granted that motion. See Doc. No. 39. Thereafter, Plaintiff failed to file or serve

3

Two of the three pending motions for injunctive relief relate to conditions at the CJC.
The third motion relates to conditions at the Eastern Regional Diagnostic Correctional
Center (“ERDCC”) at Bonne Terre, Missouri, where Plaintiff was housed from March
2014 through June 2, 2014.
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an amended complaint with respect to these allegations and therefore, this portion of his
suit will be dismissed for failure to prosecute.
On June 21, 2013, Defendants made their initial disclosures producing
approximately 500 pages of documents including Plaintiff’s medical records. As
discovery proceeded, Defendants also responded to Plaintiff’s interrogatories and
requests for production and admission. On September 17, 2014, Plaintiff filed a “Motion
for Production of Discovery,” which the Court construed as a motion to compel. The
motion was denied on October 9, 2013, because Plaintiff failed to identify any discovery
requests that Defendants had not responded to in a timely fashion. See Doc. No. 64. In
addition, the Court extended the discovery period set forth in the CMO through October
17, 2013, to permit Plaintiff additional time to respond to Defendants’ discovery requests.
See id.
On October 18, 2013, Plaintiff filed a “Stipulation for Protective Order.”
However, the “stipulation” contained no indication that the parties had in fact agreed
upon its terms. On October 25, 2013, more than five months after the expiration of the
time period for amending the complaint, Plaintiff moved for leave to amend his
complaint to add allegations and parties relating to difficulties he alleges he experienced
as a result of the new eyeglasses he received after his March, 2013 ophthalmologic exam.
Plaintiff also challenged a subsequent refusal of the CJC to refer him to an
ophthalmologist for additional care.
On November 4, 2013, the deadline for filing any such motions under the CMO,
Defendants filed their motion for summary judgment. Plaintiff responded to that motion
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on December 2, 2013, and Defendants filed their reply on December 12, 2013. On
December 4, 2013, almost seven months after the deadline for amendments of the
complaint and after the filing of the motion for summary judgment, Plaintiff filed a third
motion to amend his complaint seeking to substitute the City of Saint Louis in place of
the SLDPS. On the same day, Plaintiff also filed motions for court orders mandating that
he receive telephone access and access to Westlaw Online at the CJC.
On December 17, 2013, two months after the close of discovery, Plaintiff filed a
motion to compel production of documents to obtain the files related to the grievances he
filed with respect to his eyeglasses. (Doc. No. 81).
Finally, on March 24, 2014, Plaintiff, having been transferred to the ERDCC in
Bonne Terre, Missouri, filed a motion for a court order mandating that he receive access
to a “constitutionally adequate law library” at that facility. Doc. No. 85.
II. Plaintiff’s Motions to Amend
Plaintiff’s motions for leave to amend his complaint will be denied for failure to
show good cause for departure from the terms of the Court’s CMO.
In circumstances where a party seeks leave to amend a pleading outside the
deadline established by the court’s scheduling order, the party must satisfy the goodcause standard of Rule 16(b)(4), rather than the more liberal standard of Rule 15(a).4

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Even when the more liberal standard of Rule 15(a) is applied, “[a] district court may
deny leave to amend if there are compelling reasons such as undue delay, bad faith, or
dilatory motive, repeated failure to cure deficiencies by amendments previously allowed,
undue prejudice to the non-moving party, or futility of the amendment. Duplicative and
frivolous claims are futile.” Reuter v. Jax Ltd., Inc., 711 F.3d 918, 922 (8th Cir. 2013)
(internal quotation and citation omitted).
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Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 716 (8th Cir. 2008). Under Eighth
Circuit law, “a motion for leave to amend filed outside the district court’s Rule 16(b)
scheduling order requires a showing of good cause.” Williams v. Tesco Servs. Inc., 719
F.3d 968, 977 (8th Cir. 2013). In order to meet the “good cause” requirement, a party
must establish ‘“diligence in attempting to meet the order’s requirements.”’ Sherman,
532 F.3d at 716-17 (quoting Rahn v. Hawkins, 464 F.3d 813, 822 (8th Cir. 2006)). In
addition, leave to amend is properly denied when the proposed amendment would be
futile. See Zutz v. Nelson, 601 F.3d 842, 852 (8th Cir. 2010). And a proposed
amendment is deemed futile when “the district court reache[s] the legal conclusion that
the amended complaint could not withstand a motion to dismiss under Rule 12(b)(6).”
Id. at 850 (citation omitted).
A. The October 25, 2013 Motion for Leave to Amend
With respect to the first proposed amendment, filed on October 25, 2013, Plaintiff
fails to establish diligence and hence, good cause for the Court to grant him leave to
amend more than five months after the date for amendment specified in the CMO and
after the close of discovery. Plaintiff’s proposed amendment seeks to add new parties
and includes allegations about the new eyeglasses he received on March 19, 2013.
Plaintiff alleges in the proposed amended complaint that he “had a problem with the new
eyeglasses as soon as I put them on . . . .” Doc. No. 66 at 2. Yet Plaintiff fails to explain
why he waited seven months to seek leave to amend the complaint to add these
allegations. Moreover, the Court cannot permit Plaintiff to continuously amend his
complaint whenever he experiences new problems regarding his medical care. See
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Popoalii v. Corr. Med. Servs., 512 F.3d 488, 497 (8th Cir. 2008) (holding that denial of a
motion to amend a complaint approximately five months after the deadline set forth in the
scheduling order is appropriate where the motion fails to state “persuasive reasons for the
delay”); Freeman v. Busch, 349 F.3d 582, 589 (8th Cir. 2003) (denying a motion for
leave to amend filed seven weeks before the end of the discovery and ten months after the
scheduling order was entered).
In addition, even if Plaintiff had shown diligence in seeking leave to amend, the
prejudice to Defendants in this situation persuades the Court that the granting of leave to
amend would not be proper here. Plaintiffs initial complaint related to a refusal to grant
requests for eyeglasses, and an alleged policy to refuse eye glasses for a one-year period.
While the proposed amendment also relates to eyeglasses, it is markedly different and
names different parties. Permitting amendment of the complaint when discovery has
closed prejudices Defendants by requiring them to defend against new claims and wait
for resolution of the claims against them while service and discovery proceed with
respect to the newly added claims and parties. See Sherman, 532 F.3d at 717 (holding
that even if the party seeking leave shows he has been diligent in attempting to comply
with the court’s timeline, the court also properly considers whether the non-movant will
be prejudiced if the amendment is allowed).
On the basis of the foregoing, the Court will deny, without prejudice, Plaintiff’s
October 25, 2013 motion for leave to amend his complaint.

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B. The December 4, 2013 Motion for Leave to Amend
On December 4, 2013, seven months after the CMO deadline for amendment of
the complaint, two months after the close of discovery, and after the filing of the motion
for summary judgment, Plaintiff filed another motion for leave to amend his complaint.
Upon consideration of this motion, the Court again concludes that Plaintiff fails to
establish good cause for his delay in seeking leave to amend. Williams, 719 F.3d at 977.
In support of his motion, Plaintiff asserts that he now realizes that he may have
named the wrong party as a defendant and claims his ignorance of the law as the cause
for the delay. The Court does not find this argument persuasive. Pro se litigants are
expected to abide by the Court’s requirements and are subject to the same substantive and
procedural requirements as other litigants. Burgs v. Sissel, 745 F.2d 526, 528 (8th Cir.
1984) (holding that pro se parties are “not excused from failing to comply with
substantive and procedural law”). Therefore, Plaintiff’s claim of unfamiliarity with the
law is neither an excuse for lack of diligence nor good cause for waiver of the
requirements of the CMO. Sherman, 532 F.3d at 716-17 (requiring a showing of
“diligence in attempting to meet the order’s requirements” to establish good cause)
(internal quotation omitted). More importantly, however, the Court concludes that this
motion for leave also should be denied on the basis of futility. As more fully discussed
below, the amendment Plaintiff proposes–the substitution of the City of St. Louis for the
SLDPS–would nonetheless fail as a matter of law. See Zutz, 601 F.3d at 852.
For these reasons, Plaintiff’s December 4, 2013, motion to amend his complaint
will be denied.
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III. Plaintiff’s Motion to Compel
On December 17, 2013, Plaintiff filed a motion seeking to compel production of
his inmate grievance file. Defendants responded to Plaintiff’s request for the grievance
file stating that “[o]ther than documents which have been produced to Plaintiff,
Defendant has no such documents within its possession or control.” Doc. No. 82.
Plaintiff argues that under the Department of Correction’s document retention policy, an
inmate grievance file must be maintained for five years and therefore, that the file
relating to the grievance he filed in July of 2012 should presently remain within
Defendants’ control. DOC Policy Part VIII (k)(8).
Plaintiff filed his motion to compel almost two months after the close of discovery
and after the filing of Defendants’ motion for summary judgment, but fails to establish
good cause for this delay. Plaintiff asserts that he made several requests for the grievance
file, but the record does not substantiate his assertion. Before the close of discovery,
Plaintiff filed a “motion for production,” which the Court construed as a motion to
compel, but that motion made no specific reference to the grievance file and failed to
identify any delinquent discovery responses. Doc. No. 56. Finally, the Court notes that
this is not a case where defendants’ dilatory or evasive responses have impeded
discovery. As Plaintiff acknowledges, Defendants responded to the discovery requests he
propounded by producing many pages of relevant documents.
Therefore, in light of Plaintiff’s lack of diligence or demonstration of good cause
for that lack of diligence, the Court concludes that the motion to compel should be
denied. See Sherman, 532 F.3d at 717.
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IV. Motions for Access to Telephone, Westlaw Online, and Law Library
During the course of this action, Plaintiff filed several motions seeking a court
order requiring that he be given access to the telephone, Westlaw Online, a law library,
and legal research materials. The Court denied those motions. See Doc. No. 34 (denying
without prejudice motion seeking access to “law library” and “Westlaw Online”); Doc.
No 39 (denying without prejudice motion seeking access to “legal books”); and Doc. No.
64 (denying with prejudice a motion seeking access to telephone).
Of the three remaining motions for court orders related to conditions of
confinement, two were filed while Plaintiff was housed at the CJC and relate to
conditions there. The third motion relates to conditions at the ERDCC at Bonne Terre,
Missouri.
As of the date of this Order, Plaintiff is no longer an inmate at the CJC. In March,
2014, he was transferred to the ERDCC, and on June 2, 2014, he notified the Court that
he had been transferred to the Farmington Correctional Center in Farmington, Missouri.
See Doc. Nos. 84 and 88.
Inasmuch as Plaintiff is now confined at another facility, the motions relating to
conditions at the CJC will be denied as moot. In the remaining motion, Plaintiff sought
an order granting him law library access while he was housed at the ERDCC in Bonne
Terre. Similarly, because Plaintiff is no longer an inmate at the ERDCC, the Court also
will deny as moot Plaintiff’s motion for law library access at the ERDCC.

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V. Plaintiff’s Stipulation for Protective Order
Plaintiff’s October 18, 2013 “Stipulation for Protective Order” gives no indication
that the parties had in fact agreed upon its terms. For this reason, to the extent that the
stipulation may be construed as a motion it will be denied.
VI. Defendants’ Motion for Summary Judgment
A. The Undisputed Facts
Unless otherwise indicated, the record reveals that the following facts are
undisputed.
On December 20, 2011, Plaintiff was placed in the custody of the CJC as a pretrial
detainee. The CJC is located in the City of St. Louis (the “City”) and operated by the
SLDPS. Healthcare services for offenders at the CJC are provided pursuant to a contract
with Corizon, Inc. Detainees at the CJC may obtain medical care by completing a health
services request form stating the nature of their medical issue. Medical staff responsible
for providing care to offenders review the requests and refer offenders to the appropriate
department for care. See Doc. No. 69-3 at 2, ¶¶ 5, 7-8.
The policies of the SLDPS allow detainees to hold personal property in the form
of prescription eyeglasses, but Plaintiff did not bring prescription eyeglasses with him
when he was admitted to the CJC. Eyeglasses with metal frames are not permitted within
the CJC because metal items are generally considered a threat to security. Offenders are
permitted to wear prescription eyeglasses with plastic frames and Plaintiff admits that he
was allowed to have prescription eyeglasses with plastic frames. Offenders may
purchase non-prescription reading glasses at the CJC commissary. Apart from requiring
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that eyeglasses be plastic, the SLDPS maintains no other policies relating to eyeglasses,
ophthalmological examinations, or eye care generally.
Hatter is employed by Corizon, Inc. (“Corizon”), not by the CJC or the SLDPS.
As the Director of Nursing at the CJC, she assists with administrative responsibilities
within the medical unit and responds to informal resolution requests (“IRRs”) from
offenders.5 She is not responsible for reviewing health services request forms or making
decisions regarding offenders’ receipt of medical care. Id. It is undisputed that Hatter
was not personally involved with the decision to provide, and did not personally provide,
medical care to Plaintiff. Id. at 2, ¶5.
When Plaintiff arrived at the CJC he did not have his prescription eyeglasses with
him. In June 2012, six months after Plaintiff’s admission to CJC, Plaintiff received his
prescription eyeglasses from his wife and was permitted to use those eyeglasses at CJC.
There is no record of Plaintiff complaining of headaches prior to receiving his
prescription eyeglasses.
Plaintiff submitted six medical services requests seeking new eyeglasses. These
requests were made on January 3, 2012; June 27, 2012; December 20, 2012; January 20,
2013; February 21, 2013; and February 26, 2013. See Doc. No. 69-4. None of these
requests stated that there were any medical issues relating to his eyes or the lack of an
updated prescription, nor did they indicate that Plaintiff was having headaches.
On January 3, 2012, Plaintiff filed a request for medical services stating among
other things, “need eyeglasses.” Id. at 25. On or about June 27, 2012, Plaintiff filed
5

An IRR is the first step in the SLDPS grievance process.
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another request for medical services, reporting that he “[r]eceived glasses – prescription
out of date. Need to see an optometrist to get prescription updated.” Id. at 23. Plaintiff
did not state that he was having headaches or indicate any other medical concerns in this
request. Id. On July 2, 2012, in response to Plaintiff’s request for medical services, a
prison physician examined Plaintiff and noted that, among other things, Plaintiff was
complaining of headaches which Plaintiff thought were related to poor vision. See id., at
22. The doctor prescribed ibuprofen and acetaminophen.6 See id.
On July 9, 2012, Plaintiff sent Hatter a letter explaining that obtaining his
eyeglasses from his wife had not resolved his problem and stating that his eyeglasses
“caus[e] my eyes to strain. So I have a headache without my glasses and a little worse
with them.” Id. at 21. In the letter Plaintiff also stated that his wife had spoken with an
optometrist who said that “if [his] old script was not helping [he] needed to get another
eye exam due to [his] eyes were getting worse due to not wearing [his] glasses and [his]
eyes starting to compensate.” Id.
On July 18, 2012, Plaintiff filed an IRR indicating that he “sent a letter down to
Hatter in medical requesting to talk to her concerning my eyeglass[es]”and that “[a]s of
today’s date I have yet to hear from her to discuss my complaint.” Doc. No. 69-3 at 6.
On or about August 6, 2012, Hatter responded to the IRR stating that “[i]n order for
[Plaintiff] to get a new prescription for eyeglasses, he has to have been incarcerated for

6

Plaintiff regularly received acetaminophen or ibuprofen during his confinement at the
CJC. See Doc. No. 69-2, at ¶ 22; Id. at 2-7.

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one year.” Hatter also indicated that Plaintiff’s request could be reviewed again in
December. See id. at 2, ¶¶ 8, 12.
In her affidavit, Hatter indicates that her response to Plaintiff’s IRR was based
upon her understanding and the information provided by Corizon, that persons confined
at the CJC are referred on an annual basis for an ophthalmologic exam, unless the
medical provider evaluating the patient indicates there is a medical need for earlier
services and makes the referral prior to the annual check-up. See id. at 3, ¶¶ 15-17; 7.
Hatter also attests that at the time she responded to the IRR, she was aware that
Plaintiff had prescription eyeglasses in his possession, but that she had no knowledge that
he had a serious medical need for a new prescription. See id. at 3, ¶¶ 18-19. It is
undisputed that prior to August 6, 2012, the time that Hatter would have reviewed the
medical records in responding to the IRR, no medical professional had recommended that
Plaintiff be seen by an ophthalmologist. See id. at 3, ¶19.
On August 9, 2012, Plaintiff submitted a medical services request stating
“headaches still coming on.” Doc. No. 69-4 at 18. Plaintiff made no reference to
prescription eyeglasses in that request. See id. In response to this request, Plaintiff was
seen by nursing staff on August 15, 2012. At that time the headaches were not attributed
to any issues with Plaintiff’s eyes or his prescription eyeglasses. See id. at 16-17. The
nurse instructed Plaintiff to return to sick call if his symptoms persisted. See id.
On or about September 13, 2012, Plaintiff submitted a health services request form
seeking “follow up with Dr. due to still having chest pains and headaches.” See id. at 20.
The request makes no mention of prescription eyeglasses or eye issues. See id. On
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September 14, 2012, in response to this request, Plaintiff was seen by a physician. The
physician diagnosed pectoral muscle pain and prescribed ibuprofen and acetaminophen.
See id.
On or about December 20, 2012, noting that he had been at the CJC for exactly
one year, Plaintiff submitted a health services request form stating, “[m]y eyeglasses are
out of date and I need to see an optometrist to get my [pres]scrip[tion] updated.” Id. at
15. Plaintiff did not state that he was having headaches or indicate any other medical
concerns in this request. See id at 14.
On January 4, 2013, Plaintiff submitted a health services request form requesting
“follow-up with doctor about chest pains and headaches.” Id. The written request makes
no mention of eyeglasses or vision issues. See id. On January 9, 2013, Plaintiff received
his annual medical examination. See id. at 1-8. During the examination, a vision test was
performed indicating that Plaintiff had 20/50 vision without his glasses. See id. at 1.
On or about January 20, 2013, Plaintiff submitted a health services request form
indicating he was seeking “follow up about eyeglasses.” See id. at 13. Plaintiff did not
state that he was having headaches or indicate any other medical concerns in this request.
See id. In response to his January 20 request, Plaintiff was referred to a physician for
further evaluation, who subsequently referred him for an outside ophthalmological visit.
See id. at 10, 13. Plaintiff saw an ophthalmologist on March 12, 2013. See id. at 8-9.
The ophthalmologist provided Plaintiff with a new prescription for his eyeglasses noting
Plaintiff’s complaint as “blurry vision at a distance.” Id. at 9.

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B. Standard of Review
Rule 56(a) of the Federal Rules of Civil Procedure provides that summary
judgment shall be entered “if the movant shows that there is no genuine dispute as to any
material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). “On a motion for summary judgment, facts must be viewed in the light most
favorable to the nonmoving party only if there is a genuine dispute as to those facts.”
Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (internal quotation
omitted). “The nonmovant must do more than simply show that there is some
metaphysical doubt as to the material facts, and must come forward with specific facts
showing that there is a genuine issue for trial.” Briscoe v. Cnty. of St. Louis, MO., 690
F.3d 1004, 1011 (8th Cir. 2012) (internal quotation omitted). ‘“Mere allegations not
supported with specific facts are insufficient to establish a material issue of fact and will
not withstand a summary judgment motion.’” Depositors Ins. Co. v. Wal-Mart Stores,
Inc., 506 F.3d 1092, 1095 n.3 (8th Cir. 2007) (quoting Henthorn v. Capitol Commc’n,
Inc., 359 F.3d 1021, 1026 (8th Cir. 2004)). “To establish a genuine factual issue, a party
may not merely point to unsupported self-serving allegations.” Residential Funding Co.,
LLC v. Terrace Mortg. Co., 725 F.3d 910, 915 (8th Cir. 2013) (internal quotation
omitted). The nonmovant must respond by submitting evidentiary materials that set out
specific facts showing that there is a genuine issue for trial. Gannon Intern., Ltd. v.
Blocker, 684 F.3d 785, 792 (8th Cir. 2012).
“Where the record taken as a whole could not lead a rational trier of fact to find
for the nonmoving party, there is no genuine issue for trial.” Id. The non-moving party
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“must substantiate its allegations with sufficient probative evidence that would permit a
finding in its favor.” Residential Funding, Co., LLC, 725 F.3d at 915 (internal quotation
and citation omitted). Finally, the movant is entitled to summary judgment when the
non-moving party has failed “to establish the existence of an element essential to that
party’s case . . . on which that party will bear the burden of proof at trial.” Celotex Corp.
v. Catrett, 477 U.S. 317, 322-23 (1986). No genuine issue of fact exists in such a case
because a “complete failure of proof concerning an essential element of the non-moving
party’s case necessarily renders all other facts immaterial.” Id. at 323.
VII. Plaintiff’s Claim against Defendant Hatter
Plaintiff asserts that Defendant Hatter violated his constitutional rights by
exhibiting deliberate indifference to his serious medical need for an eye exam and/or new
prescription eyeglasses. Since Plaintiff was a pretrial detainee at the time of his
incarceration, the due process standard of the Fourteenth Amendment applies to
determine the constitutionality of his conditions of confinement. Bell v. Wolfish, 441
U.S. 520, 535 (1979). In the Eighth Circuit, the standards applied to such claims are the
same as those applied to Eighth Amendment claims. Vaughn v. Greene Cnty., AR, 438
F.3d 845, 850 (8th Cir. 2006); Hartsfield v. Colburn, 371 F.3d 454, 457 (8th Cir. 2004).
Under the Eighth Amendment, a prisoner’s constitutional rights are violated if
prison officials exhibit deliberate indifference to the prisoner’s serious medical needs.
Estelle v. Gamble, 429 U.S. 97, 104 (1976); Farmer v. Brennan, 511 U.S. 825, 828
(1994). To prevail on his claim, Plaintiff must establish that he suffered from an
objectively serious medical need and that a defendant actually knew of, but deliberately
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disregarded the need. Santiago v. Blair, 707 F.3d 984, 990 (8th Cir. 2013); Schaub v.
VonWald, 638 F.3d 905, 914 (8th Cir. 2011); Johnson v. Hamilton, 452 F.3d 967, 972-73
(8th Cir. 2006).
A. Serious Medical Need
Upon review of the undisputed facts the Court concludes that Plaintiff has not
come forward with evidence creating a genuine issue of material fact with respect to the
existence of an objectively serious medical need. A “serious medical need is one that has
been diagnosed by a physician as requiring treatment, or one that is so obvious that even
a layperson would easily recognize the necessity for a doctor’s attention.” Schaub, 638
F.3d at 914. Courts in this District and others have concluded as a matter of law that the
denial of eyeglasses and eye medication or headaches and blurry vision resulting from an
incorrect eyeglass prescription are insufficient to establish an objectively serious medical
need. See, e.g., Dunville v. Morton, No. 99-1122, 2000 WL 1206653, at*2 (7th Cir. Aug.
22, 2000) (finding no Eighth Amendment violation where a prisoner waited 15 months
for an eye examination and had complained about eye pain and headaches during that
period because the plaintiff could not establish detriment from delayed treatment of a
medical condition never even established to be serious); Washington v. City of University
City, No. 4:09–CV–0784 HEA, 2012 WL 1134029, at *4-5 (E.D. Mo. Mar. 31, 2012)
(finding no serious medical need where a pretrial detainee alleged that he was denied
eyeglasses and eye medication); Rodriguez v. Wiley, No. 08CV02505-PAB-CBS, 2010
WL 1348017, at *12 (D. Colo. Feb. 25, 2010) (holding, where the plaintiff prisoner
demonstrated that he had been denied prescription eyeglasses over an 18 month period,
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that he failed to establish a claim of deliberate indifference, in part because he failed to
offer evidence that the alleged denial of medical attention “contributed to or intensified
his condition”) (internal quotation omitted); Davidson v. Scully, 155 F. Supp. 2d 77, 8889 (S.D.N.Y. 2001) (concluding that headaches and blurry vision resulting from an
incorrect eyeglasses prescription “are not a sufficiently serious condition” to establish a
violation of the Eighth Amendment).
The Court notes that this is not a case where the plaintiff has demonstrated that he
was unable to see or that he experienced physical degeneration of his eyesight as a result
of the allegedly out-of-date prescription eyeglasses. If it were, the outcome might be
different. See, e.g., Koehl v. Dalsheim, 85 F.3d 86, 87-88 (2d Cir. 1996) (finding a
serious medical condition where the confiscation of plaintiff’s glasses caused physical
degeneration that rendered plaintiff almost sightless and caused headaches); Benter v.
Peck, 825 F. Supp. 1411, 1416-17 (S.D. Iowa 1993) (holding that the plaintiff prisoner
had a serious medical need where his eyesight, without glasses, fell within the parameters
of blindness). The closest that Plaintiff comes to establishing these facts is the letter he
sent to Hatter recounting what an optometrist, who had not spoken with or examined
Plaintiff, told Plaintiff’s wife. Doc. No. 69-4 at 21. This statement, without more, is not
sufficient to show a serious medical need. Santiago, 707 F.3d at 990.
Upon consideration of the relevant case law and the record before it, the Court
concludes that Plaintiff cannot demonstrate that he had an objectively serious medical
need for an ophthalmologic examination and/or a new prescription for his eyeglasses
during the relevant period of his confinement.
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In addition, in response to the motion for summary judgment, Plaintiff offers no
medical evidence to ‘“establish the detrimental effect of delay in medical treatment.’”
Laughlin v. Schriro, 430 F.3d 927, 929 (8th Cir. 2005) (quoting Crowley v. Hedgepeth,
109 F.3d 500, 502 (8th Cir. 1997)) (granting summary judgment for the defendants,
where the plaintiff “failed to submit verifying medical evidence that delay in the
provision of sunglasses had any adverse effect on his prognosis”). In circumstances
where the plaintiff alleges that the delay in treatment is itself the constitutional
deprivation, ‘“the objective seriousness of the deprivation should also be measured by
reference to the effect of delay in treatment.’” Laughlin, 430 F.3d at 929 (quoting
Beyerbach v. Sears, 49 F.3d 1324, 1326 (8th Cir. 1995) (internal quotation omitted)).
It is undisputed that Plaintiff received the ophthalmological exam that he sought,
as well as an updated pair of prescription eyeglasses. His complaint is that the medical
attention he sought was delayed in the interim, but there is no medical evidence in the
record to establish that the delay had a detrimental effect on his health. Admittedly, in
his letter to Hatter, Plaintiff states that his eyes “were getting worse” from “straining to
compensate” during the time he was waiting for his wife to bring him his glasses. Doc.
No. 69-4 at 21. But this assertion without more is not medical evidence of a detrimental
effect on his health. And Plaintiff has not come forward with evidence to establish a
causal link between the headaches he alleges he experienced and the delay in his receipt
of new eyeglasses. Indeed, numerous times when he received treatment for headaches
and other pains, no mention is made of eyeglasses or other eye-related issues.
Accordingly, the Court cannot conclude that he has established a serious medical need.
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See Laughlin, 430 F.3d at 929; Beyerbach, 49 F.3d at 1326.
B. Deliberate Indifference
Upon review of the record, the Court further concludes that even if the existence
of a serious medical need is presumed, Plaintiff cannot demonstrate that she knew of and
deliberately disregarded Plaintiff’s request for updated prescription eyeglasses.
A prison official’s failure to treat a medical condition does not violate the Eighth
Amendment unless the prison official knew that the condition created a serious risk to the
inmate’s health and failed to act on that information. Farmer, 511 U.S. at 837. Under
this subjective standard, an official is deliberately indifferent if he knows of and
disregards an excessive risk to inmate health or safety. Id. The official must be aware of
facts from which the inference could be drawn that a substantial risk of serious harm
exists, and he also must draw that inference. Id.; but see Smith v. Kolitwenzew, No. 132179-CSB-DGB, 2013 WL 6669163, at *3 (C.D. Ill. Dec. 18, 2013) (holding that a
prisoner stated a claim for deliberate indifference where nurse and prison officials knew
of his need for glasses but prevented him from obtaining treatment by failing to deliver
his medical requests to the appropriate persons and the plaintiff’s sight deteriorated as a
result of the delay in treatment).
In this case, Hatter’s only involvement with Plaintiff was her receipt of, and
response to, his July 9, 2012 letter and July18, 2012 IRR requesting an eye exam and new
prescription eyeglasses. It is undisputed that at the time Hatter was called upon to
address the IRR, no treating medical provider had opined that Plaintiff needed to be seen
by an ophthalmologist before his annual checkup. To the contrary, Plaintiff saw a prison
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physician on July 2, 2012, at which his vision and headaches were discussed, and that
physician did not refer Plaintiff to an ophthalmologist.
Hatter responded to the IRR by informing Plaintiff of the Corizon policy that
offenders generally had to wait one year to receive an examination by an outside
ophthalmologist and obtain new prescription eyeglasses unless the medical provider
evaluating the patient indicates there is a medical need for earlier services and makes the
referral prior to the annual check-up. Because Hatter was not aware of such a
recommendation (and there was no such recommendation), and Plaintiff’s medical
records gave no indication of a serious medical issue related to Plaintiff’s request for new
prescription eyeglasses, there is no basis upon which a jury could find that she was
deliberately indifferent to Plaintiff’s request. Compare Washington, 2012 WL 1134029,
at *4-5, with Kolitwenzew, 2013 WL 6669163, at *3.
Plaintiff’s allegation that he experienced headaches due to the out-of-date
prescription does not change this result. His medical records reflect that during the time
period relevant to the complaint he requested medical attention due to headaches on four
occasions: July 2, 2012 (doctor’s note indicates that Plaintiff was complaining of
headache which Plaintiff thought was related to poor vision); August 9, 2012 (stating
“headaches still coming on”); September 13, 2012 (seeking medical attention for “chest
pains and headaches”); January 4, 2013 (seeking “follow-up with doctor about chest
pains and headaches”). Doc. No. 69-4 at 14, 18, 20 & 22. The record also reflects that
after each of these requests, Plaintiff received reasonably prompt medical attention (i.e.,
within a few days) and medication for complaints of headache.
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Hatter also argues that Plaintiff cannot establish liability here because he failed to
establish a connection between his request for a new prescription and the headaches he
reported in his medical services requests. The Court cannot agree. The record
establishes that Plaintiff believed and told others, including medical personnel, that his
headaches were caused by his out dated prescription. Id. at 21, 22. However, Plaintiff’s
assertion that such a connection existed is not sufficient to establish Hatter’s liability.
Jones v. Minn. Dept. of Corrections, 512 F.3d 478, 481-82 (8th Cir. 2008) (holding that
for purposes of an Eighth Amendment claim of deliberate indifference to a prisoner’s
serious medical need, a showing of deliberate indifference is greater than gross
negligence and requires more than mere disagreement with treatment decisions). At the
time that Hatter responded to the grievance, the medical records did not establish that any
medical provider had concurred in that opinion nor that referral for an earlier
ophthalmologic exam was required. See Farmer, 511 U.S. at 837.
VIII. Plaintiff’s Claim against the City of St. Louis Department of Public Safety
A. Suable Entity
Plaintiff names the SLDPS, a department of the City, as a defendant in this case.
Relevant precedent establishes, however, that a department or subdivision of local
government is not a “juridical” or suable entity under 42 U.S.C. § 1983. Ketchum v. City
of West Memphis, AR., 974 F.2d 81, 82 (8th Cir. 1992). Therefore, under Ketchum and
its progeny, Plaintiff’s claim against the City of St. Louis Department of Public Safety
fails as a matter of law. Ballard v. Missouri, No. 4:13CV528 JAR, 2013 WL 1720966, at
*3 (E.D. Mo. April 22, 2013) (holding that “[p]laintiff’s claims against the City of St.
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Louis Department of Public Safety, the St. Louis County Justice Center, the City of St.
Louis Justice Center, and MSI/Workhouse are legally frivolous because these defendants
are not suable entities”); see also Wallace v. St. Louis City Justice Ctr., No. 4:12CV2291
JAR, 2013 WL 3773971, at *2 (E.D. Mo. July 17, 2013) (dismissing claims against the
St. Louis City Justice Center because it is not a suable entity). For this reason, Defendant
SLDPS is entitled to judgment as a matter of law on Plaintiff’s claim against it.
B. Municipal Liability
In addition, the Court concludes that even if the SLDPS were a suable entity or if
Plaintiff had been permitted to amend his complaint to substitute the City of Saint Louis
for the SLDPS, Plaintiff would be unable to establish municipal liability on the basis of
the record before the Court.
“[I]t is well established ‘that a municipality cannot be held liable on a respondeat
superior theory, that is, solely because it employs a tortfeasor.’” Johnson v. Douglas
Cnty Med. Dept., 725 F.3d 825, 828 (8th Cir. 2013) (quoting Atkinson v. City of Mountain
View, Mo., 709 F.3d 1201, 1214 (8th Cir. 2013)) (internal quotation omitted).
Nevertheless, a municipality may be sued directly under § 1983 where:
the action that is alleged to be unconstitutional implements or executes a
policy statement, ordinance, regulation, or decision officially adopted and
promulgated by that body’s officers. Moreover, . . . local governments . . .
may be sued for constitutional deprivations visited pursuant to
governmental ‘custom’ even though such a custom has not received formal
approval through the body’s official decisionmaking channels.
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978); see also Veatch v. Bartels
Lutheran Home, 627 F.3d 1254, 1257 (8th Cir. 2010) (explaining that under § 1983, the

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plaintiff must demonstrate either that the municipality had a policy or custom that caused
the constitutional violation or that the municipality or a municipal employee exhibited
deliberate indifference to the plaintiff’s constitutional rights by failing to adequately train
or supervise its employees) (citing City of Canton v. Harris, 489 U.S. 378, 378-92
(1989)).
The predicate for any claim of municipal liability is a constitutional violation.
Avalos v. City of Glenwood, 382 F.3d 792, 802 (8th Cir. 2004). In other words, “[i]n
order for municipal liability to attach, individual liability must first be found on an
underlying substantive claim.” Burton v. St. Louis Bd. of Police Com’rs, 731 F.3d 784,
799 (8th Cir. 2013) (quoting Cooper v. Martin, 634 F.3d 477, 481-82 (8th Cir. 2011)); see
also Brockinton v. City of Sherwood, 503 F.3d 667, 674 (8th Cir. 2007) (quoting McCoy
v. City of Monticello, 411 F.3d 920, 922 (8th Cir. 2005)). In the absence of an underlying
constitutional violation, no further inquiry regarding the existence of a relevant municipal
policy and custom or of deliberate indifference exhibited by inadequate training or
supervision is required. See Burton v. St. Louis Bd. of Police Com’rs, 731 F.3d at 799;
see also Russell v. Hennepin Cnty., 420 F.3d 841, 846 (8th Cir. 2005).
In light of these principles, Plaintiff’s claim of municipal liability fails as a matter
of law. First, in the absence of individual constitutional liability on the part of Hatter,
Plaintiff cannot establish a claim for municipal liability against either the SLDPS or the
City of Saint Louis, had it been added as a party. Burton, 731 F.3d at 799. Second, even
if Plaintiff could establish the individual liability of Hatter, that liability could not form
the basis for municipal liability here because Hatter is neither an agent nor an employee
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of the SLDPS or the City. And Hatter acted pursuant to a policy or custom of her
employer, Corizon, the entity contracted by the SLDPS to provide medical services to
offenders. See Doc. No. 69-3 at 7, 8. Even if the Plaintiff had been permitted to
substitute the City of Saint Louis for the SLDPS there is no evidence that Hatter relied
upon a policy or custom of the City. Veatch, 627 F.3d at 1257.
Finally, even if Corizon’s policy were deemed the policy of the SLDPS or the
City, Plaintiff’s claim of municipal liability fails because Plaintiff has not come forward
with evidence to establish a direct causal link between a policy or custom of the SLDPS
and the alleged constitutional deprivation.7 Parrish v. Ball, 594 F.3d 993, 1000 (8th Cir.
2010) (noting the requirement that the plaintiff prove that the policy or custom “was the
‘moving force’ behind the injury alleged”) (internal quotation omitted).
The policy at issue provides for an annual eye exam and permits more frequent
visits to an ophthalmologist “where the medical practitioner seeing that patient indicates
there is an immediate need for such services.” See Doc. No. 69-3 at 3, ¶15. It does not
prohibit more frequent eye examinations.
In this case Plaintiff had his annual eye exam as required by the policy, and
although he was examined by a physician on several occasions prior to that time, there is
no evidence that any medical practitioner who treated him recommended an earlier
referral to an ophthalmologist. The gravamen of Plaintiff’s complaint is that he should
have received an earlier referral, but the policy did not cause that delay. Under the
7

Although causation is generally a question of fact, “where the causal link is too
tenuous” and “the question is so free from doubt as to justify taking it from the [fact
finder]” a court may decide the issue as a matter of law. Parrish, 594 F.3d at 1000.
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policy, the referral determination is entrusted to the medical practitioner, and the fact that
Plaintiff disagrees with that determination is not, without more, sufficient to establish a
basis for relief here. See Jones, 512 F.3d at 482. (8th Cir. 2008) (requiring more than
“mere disagreement” about the treatment provided). Therefore, there is no evidence that
the disputed policy caused Plaintiff injury.
Conclusion
For the reasons set forth above, the Court concludes that Plaintiff’s motions for
protective order, to amend his complaint, to compel, for direct access to a telephone, for
direct access to Westlaw Online, and for a court order providing him access to a law
library should be denied. In addition, the Court concludes that Defendants’ motion for
summary judgment should be granted.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s motion for protective order is
DENIED. (Doc. No. 65.)
IT IS FURTHER ORDERED that Plaintiff’s October 25, 2013 motion to amend
his complaint is DENIED. (Doc. No. 66.)
IT IS FURTHER ORDERED that Defendants’ motion summary judgment is
GRANTED. (Doc. No. 67.)
IT IS FURTHER ORDERED that Plaintiff’s December 4, 2013 motion to
amend his complaint is DENIED. (Doc. No. 72.)
IT IS FURTHER ORDERED that Plaintiff’s motion for direct access to
Westlaw Online is DENIED as moot. (Doc. No. 74.)
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IT IS FURTHER ORDERED that Plaintiff’s motion for court order for access to
phone is DENIED as moot. (Doc. No. 76.)
IT IS FURTHER ORDERED that Plaintiff’s motion to compel and for sanctions
is DENIED. (Doc. No. 81.)
IT IS FURTHER ORDERED that Plaintiff’s motion for court order (related to
law library access) is DENIED without prejudice. (Doc. No. 85.)
IT IS FURTHER ORDERED that Plaintiff’s allegations regarding violation of
his First Amendment rights due to the alleged withholding of his mail are DISMISSED
without prejudice for failure to prosecute.
A separate judgment shall accompany this Memorandum and Order.

________________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 16th day of July, 2014.

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