Banks v. Davenport et al

Filing 7

OPINION AND ORDER re complaint 1 filed by Frederick Banks. The motion to proceed ifp is granted 2 . The complaint is dismissed without prejudice. Judgment will be entered accordingly. Signed by Judge Kristine G. Baker on 10/15/13. (kpr) (Docket entry modified on 10/15/2013 to correct the linkage.) (thd).

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
FREDERICK BANKS
v.

PLAINTIFF
Case No. 4:13-cv-00481 KGB

DAVENPORT, et al.

DEFENDANTS
OPINION AND ORDER

Before the Court is plaintiff Frederick Banks’s complaint and complaint for a writ of
mandamus (Dkt. No. 1) and his application to proceed in forma pauperis (Dkt. No. 2). Based on
Mr. Banks’s application to proceed in forma pauperis, he does not have the funds to pay the
filing fee. Accordingly, his application is granted (Dkt. No. 2).
The in forma pauperis statute, 28 U.S.C. § 1915(e)(2)(B), requires that a lawsuit be
dismissed if it is (1) frivolous or malicious; (2) fails to state a claim upon which relief may be
granted; or (3) seeks monetary relief from a defendant who is immune from such relief. While
sua sponte dismissals are disfavored, “[s]ection 1915(e)(2)(B) applies to both prisoner and nonprisoner in forma pauperis cases.” Fletcher v. Jasper Police Dept., No. 1:09-CV-977, 2012 WL
5878807 (E.D. Tex. Oct. 18, 2012) (citing Newsome v. E.E.O.C., 301 F.3d 227, 231–33 (5th Cir.
2002)). See also Charles Alan Wright, et al., § 3970 Procedure for Appeals in Forma Pauperis,
16AA Fed. Prac. & Proc. Juris. (4th ed.) (“The PLRA also made some changes that affect nonprisoner litigants. In particular, the PLRA amended what is now Section 1915(e)(2) concerning
the dismissal of a case. The current statutory language is mandatory (‘shall dismiss’) and adds to
the list of reasons for dismissal that the action fails to state a claim or that it seeks monetary
relief against a defendant who is immune from such relief.”); Bey v. Superior Protection, Inc.,
No. 4:08CV004191 JLH, 2009 WL 1058054 (E.D. Ark. Apr. 20, 2009) (adopting proposed

finding and recommendation of United States Magistrate Judge Henry L. Jones, Jr.) (“Although
many of the provisions in § 1915 specifically refer to and apply only to prison inmates, the
language in § 1915(e)(2) does not distinguish between prisoner and non-prisoner complaints.
Under this provision, the court must dismiss a complaint at any time it determines the claims
raised are legally frivolous or malicious, fail to state a claim for relief or seek monetary relief
against a defendant who is immune from damages.”); Zessin v. Nebraska Health & Human
Services, No. 807CV247, 2007 WL 2406967 (D. Neb. Aug. 20, 2007) (collecting cases in which
the Eighth Circuit and other courts have affirmed dismissals under 28 U.S.C. § 1915(e)(2)(B) in
non-prisoner cases) (“[I]t is clear that 28 U.S.C. § 1915(e)(2)(B) authorizes dismissal of
complaints filed in forma pauperis without regard to whether the plaintiff is a prisoner.”). A
claim is frivolous if it “describe[es] fantastic or delusion scenarios,” the factual contentions are
“clearly baseless,” or there is no rational basis in law. Neitzke v. Williams, 490 U.S. 319, 327-29
(1989).
The Court has reviewed Mr. Banks’s complaint.

Mr. Banks contends that various

defendants, including the Federal Bureau of Prisons and some of its named and unnamed
officials, the United States of America, State Farm, and Amazon.com, among others, have been
using “remote neural monitoring” to harass him via satellite (Dkt. No. 1). In his complaint, Mr.
Banks requests a writ of mandamus against defendants as well as more than 94 million dollars in
damages. The core allegations of Mr. Banks’s complaint are similar to more than 20 cases he
has filed previously in the Eastern District of Arkansas that have been dismissed. See, e.g.,
Banks v. Thompson, 4:13-cv-00382 (E.D. Ark.); Banks v. Davenport, 4:13-cv-00412 (E.D. Ark.);
Banks v. Roberts, 2:13-cv-00070 (E.D. Ark.); Banks v. Clinton, 4:12-cv-00183 (E.D. Ark.).
Furthermore, by recent Order of this Court, filed after proceedings in the instant case began,

2

Chief Judge Brian S. Miller dismissed a similar action as frivolous and, citing Mr. Banks’s status
as a “notoriously frivolous filer,” directed the Clerk of Court to “no longer accept any filings
from Frederick Banks, in any case, without prior approval.” Banks v. Antitrust Division, 4:13cv-00455 (E.D. Ark.).
Even according Mr. Banks’s complaint the very liberal construction to which it is
entitled, setting aside the question of whether some defendants are immune, and assuming that he
has stated sufficient facts to support a violation of law, the Court determines that Mr. Banks’s
complaint is frivolous and must be dismissed sua sponte.
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a pre-answer motion to
dismiss for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P.12(b)(6).
As the Eighth Circuit Court of Appeals recently explained:
We review de novo the district court’s grant of a motion to dismiss, accepting as
true all factual allegations in the complaint and drawing all reasonable inferences
in favor of the nonmoving party. See Palmer v. Ill. Farmers Ins. Co., 666 F.3d
1081, 1083 (8th Cir. 2012); see also Fed.R.Civ.P. 12(b)(6). “To survive a motion
to dismiss, a complaint must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (internal quotation omitted). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id.
Richter v. Advance Auto Parts, Inc., 686 F.3d 847, 850 (8th Cir. 2012). Courts consider
“plausibility” by “‘draw[ing] on [our own] judicial experience and common sense,’” Whitney v.
Guys, Inc., 700 F.3d 1118, 1128 (8th Cir. 2012) (quoting Iqbal, 556 U.S. at 679), and
“‘review[ing] the plausibility of the plaintiff’s claim as a whole, not the plausibility of each
individual allegation.’” Id. (quoting Zoltek Corp. v. Structural Polymer Group, 592 F.3d 893,
896 n.4 (8th Cir. 2010)). The Eighth Circuit Court of Appeals has refused, at the pleading stage,
“to incorporate some general and formal level of evidentiary proof into the ‘plausibility’

3

requirement of Iqbal and Twombly.” Whitney, 700 F.3d at 1128. Nevertheless, the question “is
not whether [the pleader] might at some later stage be able to prove [facts alleged]; the question
is whether he has adequately asserted facts (as contrasted with naked legal conclusions) to
support his claims.” Id. at 1129. Mr. Banks has not.
Consistent with the above, this case must be dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B)(i). The complaint and all claims in this matter are dismissed without prejudice.
Judgment will be entered accordingly.
SO ORDERED this the 15th day of October, 2013.

______________________________
Kristine G. Baker
United States District Judge

4