Banks v. Pivnichny et al

Filing 5

ORDER DISMISSING COMPLAINT; ORDER DENYING AS MOOT APPLICATION TO PROCEED IN FORMA PAUPERIS re 1 , 2 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 6/29/2015. "The court grants Banks leave to file an Amended Complaint that cures the deficiencies noted in this order no later than July 20, 2015. Banks may submit another IFP Application at that time. Failure to file an Amended Complaint by July 20, 2015, as well as to pay the applicable filing fee or submit a new IF P Application, will result in the automatic dismissal of this action." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically a t the e-mail address listed on the Notice of Electronic Filing (NEF). Frederick Banks served by first class mail at the address of record on June 29, 2015. A copy of the court's Application to Proceed in District Court Without Prepaying Fees or Costs shall be included in the mailing to Mr. Banks.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
FREDERICK BANKS,

)
)
Plaintiff,
)
)
vs.
)
)
TIMOTHY PIVNICHNY, et al.,
)
)
Defendants.
)
_____________________________ )

CIVIL NO. 15-00216 SOM/BMK
ORDER DISMISSING COMPLAINT;
ORDER DENYING AS MOOT
APPLICATION TO PROCEED IN
FORMA PAUPERIS

ORDER DISMISSING COMPLAINT; ORDER DENYING
AS MOOT APPLICATION TO PROCEED IN FORMA PAUPERIS
I.

INTRODUCTION.
On June 9, 2015, Frederick Banks filed an Application

to Proceed in District Court Without Prepaying Fees or Costs
(“IFP Application”).

See ECF No. 2.

Pursuant to 28 U.S.C.

§§ 1915(e)(2) and 1915A(b)(1), this court has screened Banks’s
Complaint and determined that Banks fails to state a claim on
which relief may be granted.

Accordingly, the court dismisses

the Complaint, and denies the IFP Application as moot.
II.

FACTUAL BACKGROUND.
Banks has sued upwards of seventy-five defendants,

including, among others, Barack Obama, Hillary Rodham Clinton,
Mitt Romney, the Central Intelligence Agency, the Pittsburgh Post
Gazette, and over forty federal judges.
#s 2-3.

See ECF No. 1, PageID

He appears to have filed the same complaint in many

other districts.

See, e.g., Banks v. Pivnichny, 1:15-cv-00959

(D.D.C. June 22, 2015); Banks v. Pivnichny, Case No. 5:15-cv05131 (W.D. Ark. June 9, 2015).
Banks alleges that FBI Special Agent Timothy Pivnichny
intimidated Banks’s fiancee, Meredith Bondi, with a loaded
handgun during an interview in Pittsburgh, Pennsylvania in 2003
or 2004.

See ECF No. 1, PageID # 2.

Defendant Cynthia Reed

Eddy, Bondi’s then-counsel, was present during the interview, and
“never mentioned this to anyone even though she knew it was
wrong.”

Id.

Banks alleges that after he attempted to expose

Pivnichny, Pivnichny either repaired or caused to be repaired an
“Orbit II DVD/CD Copier made by Microboards” that Banks had
already made arrangements to return to Microboards for repair or
replacement.

Id., PageID #s 2-3.

Banks appears to allege that

Pivnichny fixed the Orbit II device to “set up” Banks.

See id.,

PageID # 3.
Banks also alleges that “agents of the CIA started
bombarding him with a wireless signal to electronically harass
him at the request of the FBI” in retaliation for attempting to
expose Pivnichny.

Id., PageID # 3.

After Banks reported this to

Defendant Torsten Ove of the Pittsburgh Post Gazette, Ove
allegedly failed to investigate Banks’s claims, and instead
“authored six sep[a]rate articles in the Post Gazette lambasting
Banks.”

Id.

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Banks alleges that the remaining Defendants knew or had
reason to know of Pivnichny’s alleged actions, and either refused
or failed to investigate Banks’s claims.

See id.

Banks

allegedly spent over 10 years writing to Defendants, but none of
the “individuals did anything about it but instead yelled at
Banks for exposing what Pivnichny did.”

Id.

Defendants

allegedly “recommended mental health treatment for Banks when
they knew or had reason to know he needed no such treatment.”
Id.
Banks seeks damages of $500,000,000.00, “for violations
of his Fifth and Fourteenth Amendment Right to Due Process and
because the Sioux Treaty of Fort Laramie was violated.”
PageID # 3.

In addition, Banks seeks declaratory relief “to end

the violations.”
III.

Id.,

Id.

STANDARD.
To proceed in forma pauperis, Banks must demonstrate

that he is unable to prepay the court fees, and that he
sufficiently pleads claims.

See Lopez v. Smith, 203 F.3d 1122,

1129 (9th Cir. 2000).
The court therefore screens his Complaint to see
whether it is (1) frivolous or malicious; (2) fails to state a
claim on which relief may be granted; or (3) seeks monetary
relief against a defendant who is immune from such relief.
28 U.S.C. § 1915(e)(2).

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See

IV.

ANALYSIS.
At the outset, this court notes that Banks may want to

consider whether this district is the proper venue for his
claims.

See 28 U.S.C. § 1391(b).

This court is not, however,

dismissing the Complaint on the basis of venue, as improper venue
is typically a defense, not an element that a plaintiff is
required to assert to avoid dismissal at the screening stage.
Instead, this court concludes that Banks fails to state a claim
on which relief may be granted, and dismisses his Complaint on
that basis.
Banks alleges that Pivnichny intimidated Meredith
Bondi, Banks’s fiancee, by pointing a loaded handgun at her to
intimidate her.

See ECF No. 1, PageID # 2.

Banks lacks standing

to assert claims on Bondi’s behalf, a jurisdictional matter.

In

the interest of giving Banks’s claims their most liberal reading,
this court focuses on allegations that Banks himself was injured.
Banks may be attempting to assert a claim for intentional
infliction of emotional distress, but fails to provide clear
factual allegations that plausibly support such a claim.

See Hac

v. Univ. of Haw., 102 Haw. 92, 106-07, 73 P.3d 46, 60-61 (2003)
(holding that to establish a claim for intentional infliction of
emotional distress, a plaintiff must show “1) that the act
allegedly causing the harm was intentional or reckless, 2) that
the act was outrageous, and 3) that the act caused 4) extreme

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emotional distress.”).

Banks’s allegations are not clear or

complete enough to allow the court to conclude that any conduct
in issue could potentially be deemed to have been “so outrageous
in character, and so extreme in degree, as to go beyond all
bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community.”

Tseu ex rel. Hobbs v.

Jeyte, 88 Haw. 85, 93, 962 P.2d 344, 352 (1998) (internal
quotation marks omitted).
Banks also asserts that his due process rights under
the Fifth and Fourteenth Amendments of the Constitution were
violated.

He fails, however, to provide any factual allegations

to support those claims.

Banks complains of a failure to

investigate on the part of various Defendants, but does not
provide allegations to support any duty to investigate, or to
support a plausible connection to his due process rights.
Additionally, to the extent Banks is seeking relief
pursuant to 28 U.S.C. § 1983, he may want to consider whether his
claims, dating from 2003 or 2004, are time-barred.

To the extent

Banks is attempting to assert a claim under the Federal Tort
Claims Act, Banks may want to consider whether he has timely
sought the required administrative resolution of his claim.

See

28 U.S.C. § 2675(a) (requiring a plaintiff seeking relief for a
tort committed by a federal employee to seek administrative
relief prior to initiating a judicial action); Jerves v. United

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States, 966 F.2d 517, 518 (9th Cir. 1992) (stating that before
filing a tort action against the United States, an individual
“must seek an administrative resolution of [his or] her claim.”).
With respect to Banks’s claims that Defendants violated
the “Sioux Treaty of Fort Laramie,” Banks does nothing more than
cite the treaty.

He fails to provide any supporting factual

allegations, leaving this court unable to discern the basis of
Banks’s reliance on that document.
Other allegations in Banks’s Complaint similarly fail
to state a claim on which relief may be granted.

Many of the

remaining allegations are unclear or implausible.
V.

CONCLUSION.
Banks’s Complaint is dismissed, and the IFP Application

is denied as moot.

The court grants Banks leave to file an

Amended Complaint that cures the deficiencies noted in this order
no later than July 20, 2015.

Banks may submit another IFP

Application at that time.
Failure to file an Amended Complaint by July 20, 2015,
as well as to pay the applicable filing fee or submit a new IFP
Application, will result in the automatic dismissal of this
action.

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IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 29, 2015.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Banks v. Pivnichny, et al., Civ. No. 15-00216 SOM/BMK; ORDER DISMISSING
COMPLAINT; ORDER DENYING AS MOOT APPLICATION TO PROCEED IN FORMA PAUPERIS

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