Banks v. Roe et al
ORDER DISMISSING ACTION AND DENYING IN FORMA PAUPERIS APPLICATION PURSUANT TO 28U.S.C. § 1915(g) re 1 , 2 - Signed by JUDGE DERRICK K. WATSON on 7/19/2017. "Because this Court lacks jurisdiction over Banks's claims and he may not proceed IFP pursuant to 28 U.S.C. § 1915(g), this action is DISMISSED and Banks's IFP application is DENIED. Any pending motions are DENIED as moot. The Clerk of Court is DIRECTED to close the case and note this dismissal is pursua nt to 28 U.S.C. § 1915(g)." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Frederick Banks shall be served by first class mail at the address of record on July 19, 2017.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
FREDERICK BANKS, #05711068, )
ADRIAN ROE, et al.,
Civ. No. 17-00316 DKW-RLP
ORDER DISMISSING ACTION AND
DENYING IN FORMA PAUPERIS
APPLICATION PURSUANT TO 28
U.S.C. § 1915(g)
ORDER DISMISSING ACTION AND DENYING IN FORMA PAUPERIS
APPLICATION PURSUANT TO 28 U.S.C. § 1915(g)
Before the court is pro se Plaintiff Frederick Banks’s pleading, “Complaint
and For a Writ of Mandamus,” and application to proceed in forma pauperis
(“IFP”). ECF Nos. 1, 2. Banks is confined at the Northeast Ohio Correctional
Center awaiting trial in the Western District of Pennsylvania in United States v.
Banks, Crim. No. 15-00168 (W.D. Pa.). Banks names his defense attorney, Adrian
Roe, Esq., U.S. District Judge Mark R. Hornak, U.S. Attorney Soo Song, Assistant
U.S. Attorney Robert Cessar, the Federal Bureau of Investigation (“FBI”), FBI
Special Agents Sean Langford, Robert Werner, Scott Smith, and Mike Pompeo,
and the Central Intelligence Agency (“CIA”) as Defendants.
Banks complains that Defendants are delaying his criminal proceedings for
the purpose of keeping him unlawfully confined by asserting that he is mentally ill.
Banks seeks declaratory relief against Judge Hornak and $55 million in damages.
Because this Court lacks jurisdiction over Banks’s claims and he may not proceed
IFP pursuant to 28 U.S.C. § 1915(g), this action is DISMISSED and Banks’s IFP
application is DENIED.
I. LACK OF JURISDICTION
To the extent Banks seeks a writ of mandamus to compel Defendants to
expeditiously prosecute his pending criminal proceedings, this Court lacks
jurisdiction to do so. While “district courts shall have original jurisdiction of any
action in the nature of mandamus to compel an officer or employee of the United
States or any agency thereof to perform a duty owed to the plaintiff,” 28 U.S.C.
§ 1361, mandamus is not a substitute for an appeal from a decision by a district
court. See Cheney v. U.S. Dist. Ct. for Dist. of Columbia, 542 U.S. 367, 380-81
(2004). If Banks seeks an order directing the Western District of Pennsylvania to
try him forthwith, he must pursue such relief with the Third Circuit Court of
Appeals. The Third Circuit has, in fact, already informed Banks that a “writ of
mandamus may be used ‘to confine an inferior court to a lawful exercise of its
prescribed jurisdiction or to compel it to exercise its authority when it is its duty to
do so.’” In re Banks, 670 F. App’x 54 (3d Cir. 2016) (quoting In re Diet Drugs
Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir. 2005). In denying Banks’s Petition,
the Third Circuit stated, “[t]o the extent that Banks alleges that mandamus relief is
appropriate in light of the delay in his criminal case while the question of his
competency is being determined, we disagree that our intervention is warranted.”
Id. (citing Madden v. Myers, 102 F.3d 74, 79 (3d Cir. 1996)). The Third Circuit
found that the record in Banks’s criminal case, at least up to November 2016,
showed that “the District Judge and the parties remain engaged in the matter, and
the proceedings have remained active in recent months.” Id. If Banks believes
those circumstances have since changed, he must raise his challenge in the Third
Circuit Court of Appeals.
The District of Hawaii is not a court “superior” to the Western District of
Pennsylvania, cannot sit as a quasi-appellate court over that District Court, and has
no jurisdiction or duty to compel the Western District of Pennsylvania, its U.S.
Attorney and Assistant U.S. Attorneys, the CIA, the FBI, or their officers to take
any action in Banks’s pending criminal action.
II. 28 U.S.C. § 1915(g)
To the extent Banks seeks damages from Defendants for an alleged violation
of his civil rights, he is foreclosed from proceeding IFP. A prisoner may not bring
a civil action or appeal if he has “on 3 or more prior occasions, while incarcerated
or detained in any facility, brought an action or appeal in a court of the United
States that was dismissed” as frivolous, malicious, or for failure to state a claim,
unless he or she “is under imminent danger of serious physical injury.” 28 U.S.C.
§ 1915(g). “[Section] 1915(g) should be used to deny a prisoner’s IFP status only
when, after careful evaluation of the order dismissing an action, and other relevant
information, the district court determines that the action was dismissed because it
was frivolous, malicious or failed to state a claim.” Andrews v. King, 398 F.3d
1113, 1121 (9th Cir. 2005). The imminent danger exception only “applies if the
complaint makes a plausible allegation that the prisoner faced ‘imminent danger of
serious physical injury’ at the time of filing.” Andrews v. Cervantes, 493 F.3d
1047, 1055 (9th Cir. 2007).
Banks has accrued at least three strikes pursuant to 28 U.S.C. § 1915(g).1 As
the Honorable Patricia A. Gaughan, U.S. District Judge for the Northern District of
Ohio, recently observed:
See, e.g., Banks v. Valaluka, No. 1:15-01935, 2015 WL 7430077, at *1 & n.1 (N.D.
Ohio Nov. 18, 2015) (identifying more than two hundred cases Banks has filed that have been
dismissed under 28 U.S.C. §§ 1915(e), 1915A(a), or 1915(g)); Banks v. Cessar, No. 1:16:-cv10972-DJC (D. Mass. July 21, 2016) (dismissing under § 1915(g)); Banks v. Disney, No. 1:16cv-00333-BLW (D. Id. Jan. 17, 2017) (dismissing as frivolous); see also PACER Case Locator
http://pacer.psc.uscourts.gov. (last visit July 17, 2017) (listing more than 500 cases Banks has
filed in the federal courts).
Banks is a notorious frequent filer who has had over 205 cases
dismissed as frivolous at the pleading stage in the Northern District of
Ohio, the District of Massachusetts, the Southern District of
Mississippi, the District of Columbia, the Southern District of New
York, the District of Colorado, the District of Arizona, the Southern
District of Florida, the Middle District of Florida, the Eastern District
of North Carolina, the Middle and Western Districts of Pennsylvania,
the Eastern District of Missouri, the Eastern District of New Jersey,
the Eastern District of Arkansas, the Western District of Oklahoma,
the District of Utah, and the District of Alaska. Of those cases, a third
were dismissed as frivolous pursuant to 28 U.S.C. § 1915(e), and two
thirds were dismissed pursuant to the three strikes provision of 28
U.S.C.§ 1915(g). When courts began to dismiss his civil actions
under § 1915(g), Banks attempted to circumvent the statute by filing
habeas petitions under 28 U.S.C. § 2241 or petitions for writs of
mandamus to assert various civil rights violations.
Banks v. Valaluka, 2015 WL 7430077, at *1 (N.D. Ohio Nov. 18, 2015).
It appears that Banks titled his pleading as a “Complaint for a Writ of
Mandamus” in an effort to bypass the three strikes bar to his proceeding IFP in this
action. Nothing within Banks’s pleading suggests that he is in imminent danger of
serious physical injury and his IFP application is DENIED.
Because this Court lacks jurisdiction over Banks’s claims and he may not
proceed IFP pursuant to 28 U.S.C. § 1915(g), this action is DISMISSED and
Banks’s IFP application is DENIED. Any pending motions are DENIED as moot.
The Clerk of Court is DIRECTED to close the case and note this dismissal is
pursuant to 28 U.S.C. § 1915(g).
IT IS SO ORDERED.
DATED: July 19, 2017 at Honolulu, Hawai’i.
/s/ Derrick K. Watson
Derrick K. Watson
United States District Judge
Frederick Banks v. Adrian Roe, et al., Civil No. 17-00316 DKW-RLP; ORDER
DISMISSING ACTION AND DENYING IN FORMA PAUPERIS
APPLICATION PURSUANT TO 28 U.S.C. § 1915(g)
Banks v. Roe, 1:17-cv-00316 DKW-RLP; 3 stks 2017 (mand fed pris PA OH lack j)
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