United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER OF DISISSAL
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
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
Plaintiff's Applications to Proceed Without Prepayment of
Fees or Costs are Denied Under 28 U.S.C. §
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.
Plaintiff's Original and Amended Complaints will be
Dismissed Under 28 U.S.C. § 1915A and Fed.R.Civ.P.
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 §
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
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.
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.
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.
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.
The Court Lacks Personal Jurisdiction ...