MOON v. MARBERRY et al

Filing 5

Entry and ORDER Directing Dismissal of Action - the Court denies 3 Motion for Leave to Proceed in forma pauperis and this action is dismissed, without prejudice. Copy to plaintiff via US Mail. Signed by Judge Jane Magnus-Stinson on 3/20/2012. (RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
DARNELL WESLEY MOON,
Plaintiff,
vs.
HELEN J. MARBERRY, et al.,
Defendants.

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2:12-cv-71-JMS-WGH

Entry and Order Directing Dismissal of Action
The request of plaintiff Darnell Moon ("Moon"), a federal prisoner, to proceed
in forma pauperis is denied and this action must be dismissed without
prejudice. This conclusion is based on the following facts and circumstances:
1.
Moon is confined at a federal prison in Illinois, but was previously
confined in this this District. He files this action pursuant the theory recognized in
Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 38 (1971), seeking
redress for the asserted violation of his federally secured rights. His complaint is
accompanied by his request to proceed in forma pauperis.
2.
Moon has arguably demonstrated his present inability to prepay the
$350.00 filing fee for this action. This explains his request to proceed in forma
pauperis, a status authorized in appropriate circumstances, 28 U.S.C. ' 1915(a).
Moon’s indigence is an impediment to payment of the filing fee at present, but is not
a bar to the obligation to pay. AAll ' 1915 has ever done is excuse pre-payment of the
docket fees; a litigant remains liable for them, and for other costs, although poverty
may make collection impossible.@ Abdul-Wadood v. Nathan, 91 F.3d 1023, 1025 (7th
Cir. 1996); see also Longbehn v. United States, 169 F.3d 1082, 1083 (7th Cir.
1999)("every litigant has the legal responsibility to pay the filing and docketing fees
to the extent feasible"); Hains v. Washington, 131 F.3d 1248, 1250 (7th Cir. 1997).
3.
Moon’s meager financial reserves do not tell the whole story in relation
to his request to proceed in forma pauperis. The reason for this is Moon’s frivolous
litigation under 28 U.S.C. ' 1915(g). The court in Moon v. Missouri Div. of
Employment Sec., 2009 WL 3261920, 1 (W.D.Mo. 2009), noted that Moon has
accumulated more than three strikes. The court cited the following cases as ones in
which Moon had acquired a strike: Moon v. United States, No. 09-0006 (E.D.Mo.

2009) (legally frivolous); Moon v. National Asset Recovery Services, Inc., No. 09-0117
(E.D.Mo. 2009) (legally frivolous); Moon v. National Asset Recovery Services, Inc.,
No. 09-1129 (E.D.Mo. 2009) (legally frivolous).
4.

This renders Moon ineligible to proceed in forma pauperis in this case.1

5.
These circumstances trigger the rule of Sloan v. Lesza, 181 F.3d 857,
859 (7th Cir. 1999), which states:
An effort to bamboozle the court by seeking permission to proceed in
forma pauperis after a federal judge has held that '1915(g) applies to a
particular litigant will lead to immediate termination of the suit.
Accordingly, Moon’s application to proceed in forma pauperis [3] is denied and this
action is dismissed, without prejudice.
Judgment consistent with this Entry shall now issue.
IT IS SO ORDERED.

03/20/2012
Date: __________________
_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

1The

exception under 28 U.S.C. ' 1915(g), that he Ais under imminent danger of serious
physical injury,@ does not apply to any of the circumstances alleged here because he is no
longer confined in the Southern District of Indiana.