Banks et al v. NYPD et al

Filing 4

MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 2/4/15. (mas, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
FREDERICK BANKS and KENNETH
POSNER,
Plaintiffs,

v.

: Civ. No. 15-088-LPS

NEW YORK POLICE DEPARTMENT,
et al.,
Defendants.

Frederick Banks, Pittsburgh, Pennsylvania, Pro Se Plaintiff.
Kenneth Posner, Verona, New Jersey, Pro Se Plaintiff.

MEMORANDUM OPINION

FebruaryY , 2015
Wilmington, Delaware

STARK, U.S. DistrictJudge:
I.

INTRODUCTION
Plaintiffs Frederick Banks ("Banks") and Kenneth Poster ("Posner") (together "Plaintiffs"),

filed this action on January 26, 2015. (D.I. 2) Plaintiffs appear prose. Banks filed a motion for
leave to proceed in Jonna pauperis, but Posner did not. (D .I. 1) Nor did Posner pay the filing fee.
The Court proceeds to review and screen the Complaint pursuant to 28 U.S.C. § 1915(e)(2)(b).

II.

BACKGROUND
Banks resides in Pennsylvania. He is a frequent and vexatious litigant. See Banks v. Unknown

Named Number of U.S. Postal Inspectors, 2013 WL 5945786, at *5 (W.D. Pa. Nov. 6, 2013) (discussing
Banks' litigious behavior). On November 6, 2013, the United States District Court for the Western
District of Pennsylvania ("Pennsylvania District Court") ordered,
that as to all future civil actions filed by Mr. Banks in which he requests leave to
proceed IFP (except petitions for writ of habeas corpus), in addition to the other
requirements for requesting in jortna pauperis status, Plaintiff is required to attach to
his motion for leave to proceed in Jonna pauperis a statement certifying: (1) that the
claims he wishes to present are new claims never before raised and disposed of on
the merits by any federal court, (2) that he believes the facts alleged in his complaint
to be true, and (3) that he knows of no reason to believe his claims are foreclosed by
controlling law. If Plaintiff fails to attach this certification, such failure will result in
denial of the motion for leave to proceed in Jonna pauperis. If it should be determined
that a false certification has been made, Plaintiff may be held in contempt of court
and the Court may impose appropriate sanctions and/ or punishment, after notice
and an opportunity to be heard on the matter.

Id. at *1.
On January 26, 2015 Banks filed the instant complaint titled as an "indictment and petition
for a writ of mandamus complaint". (D.I. 2) The complaint contains five counts and is identical to
a complaint Banks and Posner filed on January 14, 2015 in the United States District Court for the
Western District of Pennsylvania, Banks v. NYPD, Civ. No. 15-054, at D.I. 2 (W.D. Pa. Jan. 14,

1

2015), with the exception that Plaintiffs did not name as defendants U.S. Senators and members of
Congress. On January 16, 2015, the complaint was screened pursuant to the provisions of
§ 1915(e)(2), and a United States Magistrate Judge issued a Report and Recommendation that
Plaintiffs be denied leave to proceed in Jonna pauperis and that the case be closed. See id. at D.I. 3.
Banks has filed an objection to the Report and Recommendation. See id. at D.I. 4.
The Pennsylvania District Court found that (1) Plaintiffs lack authority and standing to bring
the charges in Counts 1 and 2 and their attempt to do so is both frivolous and malicious; (2) the
"incredible allegations" in Count 4 are similar to those asserted by Banks in Civ. No. 13-1198 and
other civil actions he filed which resulted in issuance of the Pennsylvania District Court's November
6, 2013 order; (3) Banks' motion to proceed in Jonna pauperis is defective given that it does not
comply with the certification process as ordered by the Pennsylvania District Court; and (4) Posner
is a "straw party" used by Banks to circumvent the Pennsylvania District Court's November 6, 2013
order~

III.

LEGAL STAND ARDS

A federal court may properly dismiss an action sua sponte under the screening provisions of
28 U.S.C. § 1915(e)(2)(B) if "the action is frivolous or 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."

Ball v. Famiglio, 726 F.3d 448, 452 (3d Cir. 2013); see also 28 U.S.C. § 1915(e)(2) (in Jonna pauperis
actions). The Court must accept all factual allegations in a complaint as true and take them in the
light most favorable to a prose plaintiff. See Phillips v. County ofAlleghetry, 515 F.3d 224, 229 (3d Cir.
2008); En.ckson v. Pardus, 551 U.S. 89, 93 (2007). Because Plaintiffs proceeds prose, their pleading is
liberally construed and their Complaint, "however inartfully pleaded, must be held to less stringent

2

standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. at 94 (citations
omitted).
An action is frivolous if it "lacks an arguable basis either in law or in fact." Neitzke v.

Williams, 490 U.S. 319, 325 (1989). Under 28 U.S.C. § 1915(e)(2)(B)(i), a court may dismiss a
complaint as frivolous if it is "based on an indisputably meritless legal theory" or a "clearly baseless"
or "fantastic or delusional" factual scenario. Neitz.lee, 490 at 327-28; Wilson v. Rackmiii, 878 F.2d 772,
774 (3d Cir. 1989).
Dismissal of the complaint as malicious under§ 1915(e)(2)(B)(i) is warranted where after
examining the litigant's subjective motivation for filing the lawsuit, the court determines that the
action is an attempt to vex, injure or harass the defendant. Dairy v. United States Attornrys Office, 538
F. App'x 142, 143-44 (3d Cir. Oct. 31, 2013) (citing Deutsch v. United States, 67 F.3d 1080, 1086 (3d
Cir. 1995)). Some courts have recognized more objective instances of malicious claims, for example,
where the complaint "duplicates allegations of another [] federal lawsuit by the same plaintiff', Dairy
v. United States Dist. Court Dist.

of Del., 629 F. Supp. 2d 357, 359-60 (D. Del. 2009)

(citations and

internal quotation marks omitted), qff'd, 383 F. App'x 178 (3d Cir. June 7, 2010), or where the
complaint "is plainly abusive of the judicial process", Abdul-Akbar v. Department of Corr., 910 F. Supp.
986, 999 (D. Del. 1995) (citations omitted), ajf'd, 111F.3d125 (3d Cir. 1997).

IV.

DISCUSSION
The granting of an application to proceed in forma pauperis is committed to the sound

discretion of a district court. See Shahin v. Secretary of Delaware, 532 F. App'x 123 (3d Cir. Sept. 4,
2013). A party need not be destitute to warrant in forma paupens status. See Adkins v. E.I. DuPont

Nemours Co., 335 U.S. 331, 339 (1948). Indeed, the status is a privilege rather than a right. See White
v. Colo., 157 F.3d 1226, 1233 (10th Cir. 1998); see also Shahin, supra. The Court finds that Plaintiffs,
3

and in particular Banks, initiated this action in an attempt to circumvent the certification process set
forth in the November 6, 2013 order entered in the Pennsylvania District Court. Further, a review
of the instant complaint discloses no legitimate purpose for its filing in this District, given that there
is an identical action pending in the Western District of Pennsylvania against the same defendants.
Therefore, the Court will deny Banks' motion to proceed in forma pauperis. In addition, the Court
concurs with the Pennsylvania District Court's analysis of this complaint and will dismiss the
complaint as frivolous and malicious pursuant to 28 U.S.C. § 1915(e)(2)(b)(i).

V.

CONCLUSION
For the above reasons, the Court will deny Banks' motion for leave to proceed in forma

pauperis and will dismiss the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) as frivolous and
malicious. The Court finds amendment is futile.
An appropriate order will be entered.

4