Hewitt v. Foulke et al

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IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHWESTERN DIVISION
JAMES CLAYTON HEWITT,
Plaintiff,
vs.
ROBERT JOHN FOULKE et al.,
Defendants.
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Case No. 3:26-cv-05012-MDH
ORDER
Before the Court is Plaintiff James Clayton Hewitt’s Pro Se Motion for Leave to Proceed
In Forma Pauperis. (Doc. 1). Plaintiff has attached his Application to Proceed Without Prepaying
Fees or Costs in support. Id. Plaintiff seeks leave to proceed in forma pauperis wishing to file a
Complaint arguing that Defendants initiated a guardianship action as to Carolyn S. Hewitt,
Plaintiff’s wife, without legal service of process. Plaintiff alleges that a judgment was entered
without personal jurisdiction, and that judgment put Ms. Hewitt in a funded medical facility against
the will of Plaintiff. Plaintiff further alleges that on February 10, 2026, hearing, Defendant Foulke
ordered Plaintiff to “sit down and shut up” when Plaintiff attempted to present a notice of special
appearance challenging jurisdiction to which Plaintiff claims violated his First Amendment Right
to Petition and Fourteenth Amendment Due Process rights.
Also before the Court is Plaintiff’s Pro Se Motion for Temporary Restraining Order
(“TRO”) and Preliminary Injunction. (Doc. 2). Plaintiff asks for a TRO and preliminary injunction
enjoining Defendants from further enforcement of state-court orders and directing the immediate
release of Carolyn S. Hewitt. The Court will take each of these motions in turn.
I. 	Motion for Leave to Proceed In Forma Pauperis
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“Under 28 U.S.C. § 1915, the decision whether to grant or deny in forma pauperis status
is within the sound discretion of the trial court.” Cross v. Gen. Motors Corp., 721 F.2d 1152, 1157
(8th Cir. 1983). The Court is also required to conduct a review of Plaintiff’s Complaint to be filed
in forma pauperis. See 28 U.S.C. § 1915(e)(2) (“Notwithstanding any filing fee, or any portion
thereof, that may have been paid, the court shall dismiss the case at any time if the court determines
that …. (B) the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which
relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such
relief.”).
Here, Plaintiff’s financial condition and status may well qualify him to proceed in forma
pauperis. However, before Plaintiff may proceed, the Court must preliminarily consider the
allegations of the Complaint under the three-prong test. Plaintiff’s Proposed Complaint alleges
three counts against Defendants: Count I - 18 U.S.C. § 241 - Conspiracy Against Rights; Count II
- 18 U.S.C. § 242 - Deprivation of Rights Under Color of Law; and Count III - Mo. Rev. Stat. §
576.040 - Official Misconduct.1 The Court will take each claim in turn.
A. 	Counts I and II - 18 U.S.C. §§ 241 and 242
Plaintiff fails to state a claim upon which relief can be granted as to Counts I and II. The
two statutes Plaintiff cites, 18 U.S.C. § 241, “Conspiracy Against Rights” and 18 U.S.C § 242,
“Deprivation of Rights Under Color of Law” are criminal in nature and do not give her a private
right of action. See U.S. v. Wadena, 152 F.3d 831, 846 (8th Cir. 1998) (“Courts have repeatedly
held that there is no private right of action under [18 U.S.C.] § 241, even though the statute allows
1 The Court questions whether Plaintiff has standing to bring his claims as Federal Rule of Civil Procedure 17 states
that an action must be prosecuted in the name of the real party in interest. To the extent Plaintiff argues his own rights
are violated, he would have standing. However, regarding the rights of Carolyn S. Hewitt she must either bring her
own claims or Plaintiff must establish he is permitted to bring these claims on her behalf pursuant to Federal Rule of
Civil Procedure 17. The Court need not expound on this point as the Court will deny Plaintiff’s motion on other
grounds.
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federal authorities to pursue criminal charges”); Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir. 1989)
(stating that only a United States prosecutor can bring a complaint under 18 U.S.C. §§ 241–242,
and that the “statutes do not give rise to a civil action for damages”). For this reason, Plaintiff fails
to state a claim upon which relief can be granted as to Counts I and II.
B. 	Count III - Mo. Rev. Stat. § 576.040 - Official Misconduct
Mo. Rev. Stat. § 576.040 is titled official misconduct -- penalty. It states in relevant part:
A public servant, in such person’s public capacity or under color of such person’s
office or employment, commits the offense of official misconduct if he or she:
(2) Knowingly demands or receives any fee or reward for the execution of any
official act or the performance of a duty imposed by law or by the terms of his
or her employment, that is not due, or that is more than is due, or before it is due;
(5) Is an officer or employee of any court and knowingly charges, collects or
receives less fee for his services than is provided by law;
(6) Is an officer or employee of any court and knowingly, directly or indirectly,
buys, purchases or trades for any fee taxed or to be taxed as costs in any court
of this state, or any county warrant, at less than part value which may be by law
due or to become due to any person by or through any such court[.]
The offense of official misconduct is a class A misdemeanor.
Mo. Rev. Stat. § 576.040.1-2. Here, Plaintiff has failed to allege any facts that would show a
violation of this statute. Further, any violation of this statute is considered a class A misdemeanor.
This is a criminal statute and one that does not give rise to a private cause of action enforceable by
the public. For these reasons, Plaintiff has failed to state a cause of action upon which relief can
be granted as to Count III.
Overall, Plaintiff’s Proposed Complaint lists three different counts on which he seeks relief
but fails to state a claim on any of those counts in which this Court could grant relief. Additionally,
the federal courts share concerns for finality and consistency and have generally declined to expand
opportunities for collateral attack on a state’s judgment of finality. Heck v. Humphrey, 512 U.S.
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477, 484–85, 114 S. Ct. 2364, 2371, 129 L. Ed. 2d 383 (1994). Plaintiff is better served bringing
his arguments in the first instance to the state trial and appellate courts through the state appellate
process who would be able to review the guardianship proceeding. For the reasons stated, the Court
will deny Plaintiff’s Pro Se Motion for Leave to Proceed In Forma Pauperis pursuant to 28 U.S.C.
§ 1915(e)(2)(ii) for failure to state a claim upon which relief can be granted.
II. 	Emergency Motion for TRO and Preliminary Injunction
As the Court has denied Plaintiff’s Pro Se Motion for Leave to Proceed In Forma Pauperis
for failure to state a claim upon which relief can be granted, the Court further finds that Plaintiff’s
Pro Se Motion for TRO and Preliminary Injunction is found as moot.
CONCLUSION
For the reasons stated, Plaintiff’s Pro Se Motion for Leave to Proceed In Forma Pauperis
is DENIED and Plaintiff’s Pro Se Motion for TRO and Preliminary Injunction is FOUND AS
MOOT.
IT IS SO ORDERED.
Date: February 18, 2026
/s/ Douglas Harpool_____________
DOUGLAS HARPOOL
UNITED STATES DISTRICT JUDGE
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