Moon v. United States of America et al

Filing 7

MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Darnell Wesly Moon motion is GRANTED. IT IS FURTHER ORDERED that plaintiff shall pay an initial partial filing fee of $121.82 w ithin thirty (30) days from the date of this order. 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 and fails to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B). An appropriate order of dismissal shall accompany this order and memorandum.(Initial Partial Filing Fee due by 3/5/2009.) Signed by Honorable Rodney W. Sippel on 2/3/09. (CSG)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI SOUTHEASTERN DIVISION DARNELL WESLY MOON, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants. ) ) ) ) ) ) ) ) )

No. 1:09-CV-6-RWS

MEMORANDUM AND ORDER This matter is before the Court upon the application of Darnell Wesly Moon (registration no. 34077-044) for leave to commence this action without payment of the required filing fee. 28 U.S.C. § 1915(b)(1) Pursuant to 28 U.S.C. § 1915(b)(1), a prisoner bringing a civil action in forma pauperis is required to pay the full amount of the filing fee. If the prisoner has insufficient funds in his

prison account to pay the entire fee, the Court must assess and, when funds exist, collect an initial partial filing fee of 20 percent of the greater of (1) the average monthly deposits in the prisoner's account; or (2) the average monthly balance in the prisoner's account for the prior six-month period. See 28 U.S.C.

§ 1915(b)(1). After payment of the initial partial filing fee, the prisoner is required to make monthly payments of 20 percent of the preceding month's income credited to the prisoner's account. 28 U.S.C. § 1915(b)(2). See

The agency having custody of the prisoner

will forward these monthly payments to the Clerk of Court each time the amount in the prisoner's account exceeds $10, until the filing fee is fully paid. Id.

Plaintiff has submitted an affidavit and a certified copy of his prison account statement for the six-month period See 28

immediately preceding the submission of his complaint.

U.S.C. § 1915(a)(1),(2). A review of plaintiff's account statement indicates an average monthly deposit of $43.56, and an average monthly account balance of $609.10. funds to pay the entire filing fee. Plaintiff has insufficient Accordingly, the Court will

assess an initial partial filing fee of $121.82, which is 20 percent of plaintiff's average monthly balance. 28 U.S.C. § 1915(e) Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court may dismiss a complaint filed in forma pauperis at any time if the action is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is immune from such relief. An action is frivolous if "it Neitzke v.

lacks an arguable basis either in law or in fact." Williams, 490 U.S. 319, 325 (1989).

An action fails to state a

claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007).

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In reviewing a pro se complaint under § 1915(e)(2)(B), the Court must give the complaint the benefit of a liberal The

construction.

Haines v. Kerner, 404 U.S. 519, 520 (1972).

Court must also weigh all factual allegations in favor of the plaintiff, unless the facts alleged are clearly baseless. Denton

v. Hernandez, 504 U.S. 25, 32 (1992); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The complaint Plaintiff, an inmate at the Federal Correctional Center in Oxford, Wisconsin, brings this action against defendants United States of America, Keith D. Sorrell (Assistant United States Attorney), Attorney). and Catherine Hanaway (Assistant complaint, United States is

Liberally

construing

the

plaintiff

challenging certain ruling in an action he brought pursuant to 28 U.S.C. § 2255, which is currently pending in this Court. v. United States, 1:08-CV-166-RWS (E.D.Mo.). See Moon

Specifically,

plaintiff claims that the Court should not have granted the government's request for thirty additional days in which to file its response to the § 2255 motion. Having carefully reviewed plaintiff's allegations, the Court finds that the instant action is legally frivolous and fails to state a cognizable claim or cause of action. In accordance with the foregoing,

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IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in forma pauperis [Doc. #2] is GRANTED. IT IS FURTHER ORDERED that plaintiff shall pay an initial partial filing fee of $121.82 within thirty (30) days from the date of this order. Plaintiff is instructed to make his remittance

payable to "Clerk, United States District Court," and to include upon it: (1) his name; (2) his prison registration number; (3) the case number; and (4) that the remittance is for an original proceeding. 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 and fails to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B).

An appropriate order of dismissal shall accompany this order and memorandum. Dated this 3rd day of February, 2009.

____________________________ UNITED STATES DISTRICT JUDGE

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