Banks v. Song et al

Filing 3

REPORT AND RECOMMENDATIONS Dismissing the 1 Complaint filed by Frederick Banks, Denying the 2 MOTION for Leave to Proceed in forma pauperis. Objections to R&R due by 8/8/2017. Signed by Magistrate Judge G. R. Smith on 7/25/17. (trb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
FILED
Scott L. Poff, Clerk
United States District Court

FREDERICK BANKS,
Plaintiff,
v.
SOO SONG, et al.,
Defendants.

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By tblanchard at 12:52 pm, Jul 25, 2017

CV417-137

REPORT AND RECOMMEDATION
Pro se prisoner Frederick Banks has filed this “Complaint for a
Writ of Quo Warranto, Prohibition, and Mandamus,” against a federal
judge, a United States Attorney, and various other government officials.1
See doc. 1 at 1. He also seeks leave to pursue his claim in forma pauperis
(IFP).

Doc. 2.

His IFP application, however, shows that he is not

indigent.
The Court is required to dismiss a case brought IFP if it
determines, at any time, that the allegation of poverty is untrue.2 28

1

Despite the caption on his pleading, its substance makes clear that he seeks
monetary damages (in the amount of $855,000,000.00 “plus costs interests and fees”)
and to be “discharged from custody,” among other relief.
2

While a plaintiff need not be absolutely destitute to proceed IFP, Adkins v. E.I.
Dupont de Nemours, 335 U.S. 331, 339 (1948), two important points must be

U.S.C. § 1915(e)(2)(A). Banks discloses that he has received $1,250.00 in
the last twelve months, as “gifts” from “friends,” is holding $700.00 in
cash, or in a checking or savings account, and “$250,000 [in r]eal
[e]state, [a] $29,000 vehicle, [and an] unknown value of stocks and other
investments.” Doc. 2 at 1. His Complaint explains that he is “a stock
and real estate investor and [he] invest[s] heavily in Hawaii properties,”
that he “own[s] and operate[s] a record label and [is] an international
recording artist,” and is extensively involved in litigation (he does not
specify in what capacity), including pursuing an appeal on behalf of
Bernie Madoff. See doc. 1 at 2.

underscored. First, proceeding IFP is a privilege, not an entitlement. See Rowland
v. Cal. Men’s Colony, Unit II Men’s Advisory Council, 506 U.S. 194, 198 (1993). And
second, courts have discretion to afford litigants IFP status; it’s not automatic. 28
U.S.C. § 1915(a)(1) (courts “may authorize the commencement” of IFP actions);
Denton v. Hernandez, 504 U.S. 25, 31 (1992); see also Marceaux v. Democratic Party,
79 F. App’x 185, 186 (6th Cir. 2003) (no abuse of discretion when court determined
plaintiff could afford to pay the filing fee without undue hardship because he has no
room and board expenses, owns a car, and spends the $250.00 earned each month
selling plasma on completely discretionary items).
“The trial court must be careful to avoid construing the statute so narrowly that a
litigant is presented with a Hobson’s choice between eschewing a potentially
meritorious claim or foregoing life’s plain necessities. But, the same even-handed
care must be employed to assure that federal funds are not squandered to
underwrite, at public expense, either frivolous claims or the remonstrances of a
suitor who is financially able, in whole or in material part, to pull his own oar.”
Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984) (internal cites omitted).
2

Banks’ disclosed assets show that he is not indigent, and thus not
entitled to proceed IFP.3 Thus, his application should be DENIED and
his case DISMISSED.4
This Report and Recommendation (R&R) is submitted to the
district

judge

assigned

to

this

action,

pursuant

§ 636(b)(1)(B) and this Court’s Local Rule 72.3.

to

28

U.S.C.

Within 14 days of

service, any party may file written objections to this R&R with the Court
and serve a copy on all parties.

The document should be captioned

“Objections to Magistrate Judge’s Report and Recommendations.” Any
request for additional time to file objections should be filed with the
Clerk for consideration by the assigned district judge.
After the objections period has ended, the Clerk shall submit this

3

Even if the Court were to allow Banks to proceed IFP, his Complaint suggests
problems with venue in this Court (Banks is incarcerated in Ohio and the
circumstances he alleges all occurred in Pennsylvania), immunity issues (his
principal allegation is that a federal judge “defamed” him when he stated “at a . . .
hearing” that Banks was involved in millions of dollars of illegal stock trades), to say
nothing of sheer frivolity (he alleges that he was “set up” by the FBI and “may” have
been placed “under illegal CIA FISA electronic surveillance,” and that he has had
“communications with Ivanka Trump” alerting her to CIA surveillance of the Trump
Campaign). See doc. 1 at 1-2. Despite his extraordinary allegations, Banks discloses
that he has been evaluated by psychologists at “FMC Butner,” and found competent.
Id. at 1. That information suggests that Banks’ more incredible allegations may have
some ulterior motive. Regardless, his statement of his assets (made under penalty of
perjury) shows that he is not entitled to proceed IFP.

4

The Court will reconsider its recommendation of dismissal if Banks pays the
required $400.00 filing fee during the 14-day period for objecting to this Report and
Recommendation discussed below.
3

R&R together with any objections to the assigned district judge. The
district

judge

will

review

the

magistrate

judge’s

findings

and

recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are
advised that failure to timely file objections will result in the waiver of
rights on appeal. 11th Cir. R. 3-1; see Symonett v. V.A. Leasing Corp.,
648 F. App’x 787, 790 (11th Cir. 2016); Mitchell v. United States, 612 F.
App’x 542, 545 (11th Cir. 2015).
SO REPORTED AND RECOMMENDED, this
July, 2017.

4

25th

day of