Moon v. USA

Filing 10

ORDER ADMINISTRATIVELY CLOSING CASE. The Clerk of Court is DIRECTED to SUBSTITUTE the UNITED STATES in place of ALL INDIVIDUAL DEFENDANTS in CM/ECF, and ALL INDIVIDUAL DEFENDANTS are DISMISSED with prejudice. The Clerk of Court is DIRECTED to RECHARA CTERIZE this action as being brought pursuant to the Federal Tort Claims Act. This case is ADMINISTRATIVELY CLOSED. Moon is REMINDED that as long as the filing restriction imposed in Moon v. Dodrill, Case No. 15-cv-876-JPG (Doc. 80) or any other appl icable filing restriction remains in effect, the Clerk of Court will return unfiled any papers submitted to this Court in violation of said restriction(s). To deter future similar misconduct, Moon stands WARNED that he shall receive increasingly harsh sanctions, including but not limited to monetary fines, for further attempts to avoid the filing ban. Signed by Judge J. Phil Gilbert on 11/17/2020. (jsy)

Case 3:20-cv-01118-JPG Document 10 Filed 11/17/20 Page 1 of 6 Page ID #63

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DARNELL W. MOON, #34077-044,
Plaintiff,
vs.
UNITED STATES,
Defendant.

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Civil No. 20-cv-01118-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Darnell W. Moon, an inmate in the custody of the Federal Bureau of Prisons
(BOP) who is currently incarcerated at the United States Penitentiary in Marion, Illinois (USPMarion), filed a Complaint in the Circuit Court for the First Judicial Circuit, Williamson County,
in the State of Illinois. Moon names more than fifty (50) defendants in connection with claims for
violations of federal and Illinois state law arising from their alleged interference with his stimulus
check under the CARES Act, issuance of an incident report, interference with mail/phone calls,
and retaliation. See Darnell W. Moon v. R. Wyatt, et al., Case No. 2020-L-92 (filed July 27, 2020).
Defendants removed the case to this Court pursuant to the Federal Employees Liability
Reform and Tort Compensation Act of 1988, a federal statute commonly known as the “Westfall
Act.” For actions commenced in state court, as here, the Westfall Act calls for removal to the
federal district court “embracing the place in which the action or proceeding is pending.” See
Osborn v. Haley, 549 U.S. 225, 230 (2007) (citing 28 U.S.C. § 2679(d)(2)). The underlying case
was properly removed to this federal judicial district because it embraces Williamson County,
Illinois.

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The Westfall Act grants federal employees absolute immunity from tort claims arising out
of acts undertaken in the course and scope of a federal employee’s employment. See Osborn, 549
U.S. at 230 (citing 28 U.S.C. § 2679(b)(1)). It amended the Federal Tort Claims Act (FTCA),
28 U.S.C. §§ 1346, 2671-80, to require substitution of the United States as a defendant in a tort
suit brought against a government employee. Id. at 230. It empowers the Attorney General to
certify that a federal employee sued for wrongful or negligent conduct “was acting within the scope
of his office or employment at the time of the incident out of which the claim arose,” and renders
the Attorney General’s certification1 “conclusiv[e] . . . for purposes of removal.” Id. (citing
28 U.S.C. §§ 2679(b)(1), (d)(1), (2)). Upon such certification, the United States is substituted in
place of each employee, and each employee is dismissed. Id. (citing § 2679(d)(2)). The action is
then governed by the FTCA.
In this case, the United States Attorney, by his designee, certified that all of the defendants
were either BOP employees or IRS employees acting within the scope of their employment at the
time of the events giving rise to the Complaint. (Doc. 1 at ¶¶ 3, 8, Ex. B). Accordingly, the United
States shall be substituted in place of all individual defendants, and they shall be dismissed. This
case will be governed by the FTCA.
However, the case won’t go far. Moon is well-known to this Court because he has been
subject to a filing restriction since 2016. See Moon v. Dodrill, Case No. 15-cv-876-MJR-SCW
(S.D. Ill. May 13, 2016) (Doc. 68). Plaintiff was originally sanctioned for committing fraud in
connection with his application for leave to proceed in forma pauperis (IFP). Id. When asked to

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A United States Attorney may issue the certification in lieu of the Attorney General. See 28 C.F.R.
§ 15.4(a). In the instant case, the United States Attorney delegated this authority to the Chief of the Civil
Division, who certified that all defendants were acting with the scope of their employment at the time of
the incidents out of which the claims arose.

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disclose his litigation history, Plaintiff omitted sixty (60) cases filed during his incarceration
between 2008 and 2014 and more than three (3) “strikes” under 28 U.S.C. § 1915(g).2 The Court
found that Plaintiff’s omissions were material, intentional, and fraudulent and entered an Order
prohibiting him from “filing any further litigation in this Court until he pays all outstanding
fees.”3 (Doc. 68, p. 5) (emphasis added). At the time the filing restriction was imposed, Plaintiff
owed more than $2,900.00 in unpaid filing fees.4
Plaintiff filed a motion to rescind the filing restriction in June 23, 2020, and it was denied
on July 21, 2020. See Moon v. Dodrill, Case No. 15-cv-876-JPG (Docs. 77 and 80). This Court
reviewed Plaintiff’s litigation history and found that he exercised virtually no self-restraint from
abusive litigation while the 2016 filing restriction was in effect. (See Doc. 80). He continued
filing suits for civil damages in other federal district courts. Moon v. Dodrill, Case No. 15-cv-876JPG (Doc. 79, p. 2) (citing Case Nos. 16-cv-208 (E.D. Mo.), 16-cv-1866 (M.D. Tenn.), 17-cv-125
(E.D. Mo.), 17-cv-132 (E.D. Mo.), 18-cv-117 (E.D. Mo.), 2019-cv-17 (E.D. Mo.), and 2019-cv1355 (D. Ore.)). Meanwhile, Plaintiff paid none of the fees that were due when the original filing

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See Moon v. Samuels, No. 15-cv-861-JPG-SCW (S.D. Ill.) (Doc. 103, pp. 1-2) (citing Green v. Warden,
U.S. Penitentiary, 699 F.2d 364 (7th Cir. 1983) (federal court may take judicial notice of other court
proceedings related to the matter at bar)); Moon v. Walton, No. 15-cv-889-JPG-SCW (S.D. Ill.) (Doc. 87,
p. 1); Moon v. Rivas, No. 15-cv-890-JPG-DGW (S.D. Ill.) (Doc. 19; Doc. 29, p. 3); Moon v. Rivas, No. 15cv-891-SMY-PMF (S.D. Ill.) (Doc. 69); Moon v. Garcia, No. 15-cv-921-SMY-RJD (S.D. Ill.) (Doc. 43).
3
At the time, Moon was also subject to a filing restriction in a habeas action. See Moon v. Roal, No. 12cv-982-DRH (Doc. 12) (“[A]ny future civil action petitioner may file in this Court (including any action
seeking habeas relief), shall not be considered by the Court until full payment of the filing fee for this case
has been made).
4
Moon owed the following amounts: Moon v. Roal, No. 12-cv-983-MJR-SCW ($350.00); Moon v. United
States, No. 12-cv-1090-JPG ($332.02); Moon v. Samuels, No. 15-cv-861-JPG-SCW ($400.00); Moon v.
Dodrill, No. 15-cv-876-JPG ($350.00); Moon v. Walton, No. 15-cv-889-JPG-SCW ($400.00); Moon v.
Rivas, No. 15-cv-890-JPG-DGW ($350.00); Moon v. Rivas, No. 15-cv-891-SMY-PMF ($350.00); Moon v.
Garcia, No. 15-cv-921-SMY-RJD ($350.00); Moon v. Roal, No. 12-cv-636-CJP ($5.00); Moon v. Roal,
No. 12-cv-982-DRH ($5.00); Moon v. Roal, No. 12-cv-1070-DRH ($5.00); Moon v. Roal, No. 13-cv-68DRH ($5.00).

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restriction was imposed. He still owes this court more than $2900.00 in unpaid filing fees.5 Given
all of this, the Court deemed it necessary and appropriate to extend the filing restriction for another
two years, as follows:
. . . Plaintiff’s FILING RESTRICTION REMAINS IN EFFECT and is
EXTENDED. Accordingly, Plaintiff is prohibited from filing any further litigation,
including any papers in a civil action, in this District until such time as his
outstanding filing fees of $2,902.00 are paid in full. See Support Sys. Int’l, Inc. v.
Mack, 45 F.3d 185 (1995); Newlin v. Helman, 123 F.3d 429, 437 (7th Cir. 1997).
The filing restriction does not extend to a notice of appeal filed in this case, a
petition for writ of habeas corpus, or any pleadings filed as a defendant in a criminal
action. Id. Unless some other action is taken by the Court, any petition for writ of
habeas corpus Plaintiff files in this District should be considered denied and
dismissed thirty (30) days after it is filed. Plaintiff may seek modification or
rescission of this Order, by filing a motion in this Court no earlier than two years
from the date of entry of this new Order (no sooner than July 21, 2022).
(Doc. 80, p. 3) (emphasis in original). Plaintiff has appealed this decision. Not surprisingly,
neither the original nor the extended filing restriction has deterred Plaintiff. Since June 2020, this
Court has received more than a dozen additional cases filed by Plaintiff in state court and removed
by the defendants.
Removal of this case by the defendants was proper. Moon’s filing restriction did not
abrogate the absolute right of the defendants to remove the underlying case from state to federal
court. See, e.g., In re Matter of Skupniewitz, 73 F.3d 702, 705 (7th Cir. 1996) (sanction against
plaintiff that prohibited filing complaints or motions did not prevent defendants from removing
the action to federal court). Moon was given an opportunity to respond to the Notice of Removal
on or before November 12, 2020, and he failed to do so. (Doc. 5). Regardless, Moon cannot dodge
the restriction by filing an action in state court and waiting for the defendants to remove the matter
to federal court.

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See id.

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His conduct is no different than other restricted filers, who remain undeterred by a filing
restriction imposed in one federal judicial district and begin filing lawsuits in other federal judicial
districts. See, e.g., Tidwell v. Cunningham, Case No. 18-cv-1448-SMY (S.D. Ill.) (Doc. 9)
(dismissing case transferred from Northern District of Texas as fourth unlawful attempt to
circumvent filing restriction and imposing additional monetary sanctions against litigant); Akers
v. United States, Case Nos. 20-cv-581-JPG (Doc. 13), 20-cv-592-JPG (Doc. 8), and 20-cv-638
(Doc. 8) (administratively closing cases removed from the Circuit Court for the First Judicial
Circuit, Williamson County, Illinois). This Court does not tolerate such conduct. Doing so would
render the filing restrictions meaningless. This case represents yet another attempt by Moon to
circumvent the filing restrictions, avoid the Prison Litigation Reform Act’s “three-strikes” bar to
litigation, and dodge his filing fee obligations in federal court. This Court will not allow him to
proceed in this manner. The case shall be ADMINISTRATIVELY CLOSED.
Disposition
The Clerk of Court is DIRECTED to SUBSTITUTE the UNITED STATES in place of
ALL INDIVIDUAL DEFENDANTS in CM/ECF, and ALL INDIVIDUAL DEFENDANTS
are DISMISSED with prejudice. The Clerk of Court is DIRECTED to RECHARACTERIZE
this action as being brought pursuant to the Federal Tort Claims Act.
To the extent the allegations raise constitutional claims pursuant to 42 U.S.C. § 1983 or
Bivens against the individual defendants, the Court finds that removal is still proper. See 28 U.S.C.
§§ 1441, 1443, 1446, and 1331. Likewise, administrative closure of this case is also appropriate
for the reasons set forth herein.
IT IS ORDERED that this case is ADMINISTRATIVELY CLOSED.

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Moon is REMINDED that as long as the filing restriction imposed in Moon v. Dodrill,
Case No. 15-cv-876-JPG (Doc. 80) or any other applicable filing restriction remains in effect, the
Clerk of Court will return unfiled any papers submitted to this Court in violation of said
restriction(s). To deter future similar misconduct, Moon stands WARNED that he shall receive
increasingly harsh sanctions, including but not limited to monetary fines, for further attempts to
avoid the filing ban.
IT IS SO ORDERED.
DATED: November 17, 2020

s/J. Phil Gilbert
J. PHIL GILBERT
United States District Judge

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