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Hucko v. Jane

April 12, 2012

HUCKO
v.
JANE, ET AL.



Name of Assigned Judge Harry Sitting Judge if Other or Magistrate Judge D. Leinenweber than Assigned Judge

CASE TITLE

DOCKET ENTRY TEXT

Plaintiff's motion to proceed in forma pauperis is granted in part and denied in part. Plaintiff is ordered to pay a reduced filing fee of $5 within 60 days of the entry of this order or face dismissal with prejudice. Plaintiff must also issue summons on Defendants within 60 days of the entry of this order or face dismissal with prejudice.

The Plaintiff's motion for appointment of counsel is denied without prejudice.

The § 1985 and § 1986 claims are dismissed without prejudice. The § 1983 claim remains.

O[ For further details see text below.] Notices mailed by Judicial staff.

STATEMENT

Before the Court is Plaintiff's motion to proceed in forma pauperis and for appointment of counsel. For the following reasons, the former is GRANTED in part and DENIED in part; the motion for appointment of counsel is denied without prejudice.

Part of the determination in an in forma pauperis ruling is first determining whether the complaint has any possible merit or is frivolous on its face. Wartman v. Branch 7, Civil Div., Cnty. Ct., Milwaukee Cnty., State of Wis., 510 F.2d 130, 134 (7th Cir. 1975). Plaintiff alleges he was searched and arrested without probable cause and was beaten by Harvey police officers before being released without charges. He alleges a cause of action under 42 U.S.C. §§ 1983, 1985 and 1986.

The Court stresses that the following is only an analysis for frivolousness and is not an indication of the merits of the case or likelihood to survive or fail under a motion to dismiss.

To establish liability under § 1983, a litigant must establish two elements: (1) state action, i.e., that the conduct complained of was committed under color of state law, and (2) a resulting violation of federal law, i.e., that the conduct deprived the plaintiff of rights secured by the Constitution or laws of the United States. King v. Spalding, No. 11-C-3309, 2012 U.S. Dist LEXIS 38392 at *4 (C.D. Ill. March 21, 2012). For purposes of this motion, the complaint adequately alleges both.

To sustain a claim under § 1985(3), four elements are required: "(1) a conspiracy; (2) a purpose of depriving any person of equal protection of the laws; (3) an act in furtherance of the conspiracy; and (4) injury to one's person or property or a deprivation of a right or privilege of a citizen of the United States." Malone v. American Friends Service Committee, 213 Fed. Appx. 490, 494-495 (7th Cir. 2007). Plaintiff has not alleged the purpose element, so this cause of action is dismissed without prejudice.

Because a § 1986 violation is dependant upon a violation of § 1985 (Traveler v. Ott, 06-CV-304, 2006 U.S. Dist. LEXIS 86724 at *6 (N.D. Ind. Nov. 29, 2006)), this cause of action also has not been alleged, and is also dismissed without prejudice.

Regarding the in forma pauperis motion, Plaintiff has sworn he is homeless, receives $86 per month in welfare, and "$648" in Social Security. The Court is uncertain if the Social Security payment is monthly or yearly, but in either case, it puts him below the 2012 U.S. Department of Health and Human Services Poverty Guidelines for a family of one. However, the Court believes some show of commitment to pursuing a lawsuit is ...


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