Hotop v. Missouri Department of Corrections et al
MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc. 2] is GRANTED. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint because 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 motion to appoint counsel [Doc. 4] is moot. Signed by District Judge John A. Ross on 12/10/12. (LAH)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
TIMOTHY MICHAEL HOTOP,
OF CORRECTIONS, et al.,
No. 4:12CV2240 JAR
MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Timothy Hotop for leave to
commence this action without prepayment of the filing fee pursuant to 28 U.S.C.
§ 1915. Upon consideration of the financial information provided with the motion,
the Court finds that plaintiff is financially unable to pay any portion of the filing fee.
As a result, plaintiff will be granted leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915. Additionally, the Court has reviewed the complaint and will dismiss
it pursuant to 28 U.S.C. § 1915(e)(2)(B).
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).
Plaintiff brings this action under 42 U.S.C. § 1983. The complaint reads, in its
entirety: “While employed by the State of Missouri as a Probation and Parole Officer
II, Kurt Stierwalt instructed myself to not pay the required intervention fee. This
resulted in my violation of the probationary rules.”
To establish a prima facie case under 42 U.S.C. § 1983, a plaintiff must allege
two elements: (1) the action occurred “under color of law” and (2) the action is a
deprivation of a constitutional right or a federal statutory right. Parratt v. Taylor, 451
U.S. 527, 535 (1981).
The alleged conduct does not rise to the level of a
constitutional violation. As a result, the complaint fails to state a claim under § 1983,
and the Court will dismiss this action without further proceedings.
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma
pauperis [Doc. 2] is GRANTED.
IT IS FURTHER ORDERED that the Clerk shall not issue process or cause
process to issue upon the complaint because 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 motion to appoint counsel
[Doc. 4] is moot.
An appropriate Order of Dismissal shall accompany this Memorandum and
Dated this 10th day of December, 2012.
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?