Stewart v. Wallis Companies et al

Filing 5

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiff's motion to proceed in forma pauperis [ECF No. 2] is GRANTED. IT IS FURTHER ORDERED that this action is DISMISSED without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B). IT IS FUR THER ORDERED that Plaintiff's motion for appointment of counsel [ECF No. 3] is DENIED without prejudice. IT IS FURTHER ORDERED that Plaintiffs motion to expedite [ECF No. 4] is DENIED. A separate Order of Dismissal will be filed forthwith.. Signed by District Judge John A. Ross on 10/17/14. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JAMES STEWART,

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Plaintiff,
v.
WALLIS COMPANIES, et. al,
Defendants.

No. 4:14-CV-1666-JAR

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s motion for leave to proceed in forma
pauperis. Upon review of the financial affidavit, the Court has determined that Plaintiff is unable
to pay the filing fee and will grant the motion. 28 U.S.C. § 1915. However, the Court will
dismiss the case under 28 U.S.C. § 1915(e).
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 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); Denton v. Hernandez, 504 U.S. 25, 31 (1992). 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). A complaint fails to state a claim if it does not plead
“enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007).

In reviewing a pro se complaint under § 1915(e)(2)(B), the Court must give the complaint
the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). The Court
must also weigh all factual allegations in favor of the plaintiff, unless the facts alleged are clearly
baseless. Denton, 504 U.S. at 32–33; Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
The Complaint
Plaintiff brings this action under 42 U.S.C. § 1985, alleging that Defendants engaged in a
conspiracy to interfere with his civil rights. Plaintiff asserts that he is disabled and alleges that
he was made to “prepay” at an On the Run gas station—presumably for gasoline—twice in the
last five years. Plaintiff asserts that his disability makes prepaying “painful and difficult.” He
does not identify his disability. Plaintiff further asserts that, in response to his complaints, “the
company” apologized and sent him $100 gift cards.
Plaintiff alleges that on September 24, 2014, he attempted to purchase a lottery ticket, but
two managers, “Todd and Christopher,” told him that he would have to wait because it was the
noon rush and lottery tickets were not a priority. According to Plaintiff, the managers told him
that this was store policy and that he could purchase lottery tickets elsewhere if he did not like it.
Plaintiff asserts that he has had to wait to buy lottery tickets in the past, but that during the
September 24 incident it became apparent to him that he was being discriminated against based
on his disability and in retaliation for his complaints against the company.
Discussion
Title 42 U.S.C. § 1985 grants a civil cause of action for damages caused by various types
of conspiracies aimed at injuring a person in his/her person or property, or denying him/her a
Federal right or privilege. At best, Plaintiff attempts to assert a cause of action under §1985(3)
for conspiracy to deprive a person of rights and privileges. To show a civil rights conspiracy
under §1985(3), Plaintiff must prove: (1) Defendants conspired, (2) with the intent to deprive

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him, either directly or indirectly, of equal protection of the laws, or equal privileges and
immunities under the laws, (3) an act in furtherance of the conspiracy, and (4) that he or his
property was injured, or he was deprived of exercising any right or privilege of a citizen of the
United States. See Barstad v. Murray County, 420 F.3d 880, 887 (8th Cir. 2005); Larson v.
Miller, 76 F.3d 1446, 1454 (8th Cir. 1996). A claim under §1985(3) requires proof of invidious
discriminatory intent and a violation of a serious constitutional right that is protected from
official and private encroachment. Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263,
267-68 (1993). The list of rights to which § 1985 applies is reserved to claims involving racial
or class-based invidiously discriminatory animus. Id.
Plaintiff has failed to state a § 1985 claim against Defendants because he has not alleged
that any of the individual Defendants formed any specific agreement to take any specific action
in violation of any of Plaintiff’s rights. To the contrary, Plaintiff asserts that “despite the
apologies by the company, nothing truly has been done to stop this.” This allegation falls well
short of establishing an agreement among named Defendants to conspire to deprive Plaintiff of
his civil rights. Plaintiff’s conclusory allegations are insufficient to support a conspiracy claim.
Accordingly, the Court will dismiss this action.
Further, Plaintiff’s request for appointment of counsel will be denied, without prejudice,
as the Court does not believe that the factual and legal issues involved in this action are complex,
and Plaintiff has failed to state a claim for relief. See, e.g., Johnson v. Williams, 788 F.2d 1319,
1322–23 (8th Cir. 1986); Nelson v. Redfield Lithograph Printing, 728 F.2d 1003, 1005 (8th Cir.
1984).
Lastly, because Plaintiff has failed to state a claim for conspiracy under § 1985, the Court
will deny Plaintiff’s motion to expedite as moot.
Accordingly,

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IT IS HEREBY ORDERED that Plaintiff’s motion to proceed in forma pauperis [ECF
No. 2] is GRANTED.
IT IS FURTHER ORDERED that this action is DISMISSED without prejudice
pursuant to 28 U.S.C. § 1915(e)(2)(B).
IT IS FURTHER ORDERED that Plaintiff’s motion for appointment of counsel [ECF
No. 3] is DENIED without prejudice.
IT IS FURTHER ORDERED that Plaintiff’s motion to expedite [ECF No. 4] is
DENIED.
A separate Order of Dismissal will be filed forthwith.
Dated this 17th day of October, 2014.

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JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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