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Banks v. Roe

United States District Court, D. New Mexico

January 18, 2018

FREDERICK BANKS, Plaintiff,
v.
ADRIAN ROE, ESQUIRE, JUDGE MARK J. HORNAK, ROBERT CESSAR, AUSA, SOO SONG U.S. ATTORNEY, UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA, S.A. LANGFORD, S.A. ROBERT WERNER, S.A. IN CHARGE SCOTT SMITH, MIKE POMPEO, FEDERAL BUREAU OF INVESTIGATION, CENTRAL INTELLIGENCE AGENCY, SIS LT. PEREZ, SIS TECH LLOYD, Defendants.

          MEMORANDUM OPINION AND ORDER OF DISISSAL

         THIS MATTER is before the Court sua sponte under 28 U.S.C. § 1915A(b) and Fed.R.Civ.P. 12(b)(2) and (6) on the Complaint and for a Writ of Mandamus filed by Plaintiff Frederick Banks on July 12, 2017 (Doc. 1) (“Original Complaint”) and the Complaint for a Writ of Quo Warranto, Prohibition and Mandamus filed by Banks on July 14, 2017 (Doc. 2) (“Amended Complaint”). The Court will dismiss this case on the grounds that the Court lacks jurisdiction over the Defendants and claims, and the Original Complaint and Amended Complaint are frivolous, malicious, fail to state a claim for relief, and seek monetary relief from Defendants that are immune from such relief.

         Plaintiff Frederick Banks is a prisoner incarcerated at the Northeast Ohio Correctional Facility in Youngstown, Ohio. (Doc. 1 at 1). Banks appears to have multiple criminal convictions. See, e.g., United States v. Banks, 582 Fed. App'x 86 (3rd Cir. 2014); United States v. Vampire Nation, 451 F.3d 189 (3rd Cir. 2006). The allegations of the Original Complaint and Amended Complaint are largely unintelligible, but appear to assert a federal civil rights claim for damages and a state-law claim for defamation against the Federal Bureau of Investigation and several of its Special Agents, the Central Intelligence Agency, several United States Attorneys and Assistant United States Attorneys, a private defense attorney, a United States District Judge and the United States District Court for the Western District of Pennsylvania. Banks seeks damages in an amount not less than $55 million. (Doc. 1 at 1). The Amended Complaint adds two correctional officers at FMC Butner in North Carolina as Defendants. (Doc. 2 at 1). The Amended Complaint claims $855 million, as well as requesting removal of Defendants from public office and discharge of Plaintiff from custody. (Doc. 2 at 1). Both the Original Complaint and Amended Complaint indicate they are “[r]elated to USA v. Banks, 15CR168 (WDPA).” (Doc. 1 at 1; Doc. 2 at 1). Neither the Original Complaint nor the Amended Complaint allege any conduct by any identified individual occurring in or connected to New Mexico.

         I. Plaintiff's Applications to Proceed Without Prepayment of Fees or Costs are Denied Under 28 U.S.C. § 1915(g):

         Plaintiff Banks did not pay the filing fee for this civil action. However, on the back of the Original Complaint and the Amended Complaint, in small print, Banks has requested leave to proceed without prepaying fees or costs under 28 U.S.C. § 1915. (Doc. 1 at 2; Doc. 2 at 2). The Court's research indicates that Banks has filed in excess of 205 cases in federal court, at least one-third of which have been dismissed under the “three strikes” provision of 28 U.S.C. § 1915(g). See Frederick Banks v. Honorable Richard W. Roberts, 2016 WL 3963000 (E.D. Wis. 2016); Frederick Banks v. Mark Hornak, et al., 2017 WL 2788587 (4th Cir. 2017). See, also, Banks v. VIO Software, 2007 WL 2261691 (D. Colo. 2007); Banks v. New York Police Dept., 2015 WL 1789559 (W.D. Okla. 2015); Banks v. Jackson, 2015 WL 2406067 (D. Utah 2015). Banks may not proceed in forma pauperis in this or any other federal court unless he is imminent danger of serious physical injury. 28 U.S.C. § 1915(g). Neither of Bank's applications to proceed allege that he is imminent danger of serious physical injury and his applications will be denied.

         II. Plaintiff's Original and Amended Complaints will be Dismissed Under 28 U.S.C. § 1915A and Fed.R.Civ.P. 12(b):

         Plaintiff Banks is proceeding pro se. The Court has the discretion to dismiss a pro se complaint sua sponte under 28 U.S.C. § 1915A(b) if the Court determines that the complaint is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. The Court determines that Bank's Complaint and Amended Complaint must be dismissed for each and every one of the § 1915A(b) reasons.

         The Prison Litigation Reform Act (PLRA), Section 1915A provides:

(a) Screening.-The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.
(b) Grounds for dismissal.-On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint-
(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.

28 U.S.C. § 1915A(a) and (b). The PLRA clearly authorizes dismissal of civil lawsuits against governmental entities, officers, or employees upon screening regardless of the prisoner litigant's fee status. Plunk v. Cravens, 234 F.3d 1128, 1129 (10th Cir. 2000).

         The Court may also dismiss a complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6) and for lack of personal jurisdiction under Fed.R.Civ.P. 12(b)(2). Under Fed.R.Civ.P. 12(b)(6) the Court must accept all well-pled factual allegations, but not conclusory, unsupported allegations, and may not consider matters outside the pleading. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); Dunn v. White, 880 F.2d 1188, 1190 (10th Cir. 1989). The court may dismiss a complaint under Rule 12(b)(6) for failure to state a claim if “it is ‘patently obvious' that the plaintiff could not prevail on the facts alleged.” Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991) (quoting McKinney v. Oklahoma Dep't of Human Services, 925 F.2d 363, 365 (10th Cir. 1991)). A plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. A claim should be dismissed where it is legally or factually insufficient to state a plausible claim for relief. Twombly, 550 U.S. at 570.

         In reviewing a pro se complaint, the Court liberally construes the factual allegations. See Northington v. Jackson, 973 F.2d 1518, 1520-21 (10th Cir. 1992). However, a pro se plaintiff's pleadings are judged by the same legal standards that apply to all litigants and a pro se plaintiff must abide by the applicable rules of court. Ogden v. San Juan County, 32 F.3d 452, 455 (10thCir. 1994). The Court is not obligated to craft legal theories for the plaintiff or to supply factual allegations to support the plaintiff's claims. Nor may the Court assume the role of advocate for the pro se litigant. Hall v. Bellmon, 935 F.2d at 1110.

         In deciding whether to dismiss the complaint, in whole or in part, the Court is to consider whether to allow plaintiff an opportunity to amend the complaint. Pro se plaintiffs should be given a reasonable opportunity to remedy defects in their pleadings. Reynoldson v. Shillinger, 907 F.2d 124, 126 (10th Cir. 1990). The opportunity to amend should be granted unless amendment would be futile. Hall v. Bellmon, 935 F.2d at 1109. An amendment is futile if the amended claims would also be subject to immediate dismissal under the rule 12(b)(6) standards. Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004).

         A. The Court Lacks Personal Jurisdiction ...


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