Banks v. Pivnichny et al
MEMORANDUM DECISION AND ORDER denying 17 Motion to Vacate. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
Case No. 1:15-CV-00189-EJL
MEMORANDUM DECISION AND
TIMOTHY PIVNICHNY, et al.,
This matter is before the Court on a Motion to Vacate Judgment filed by
Plaintiff Frederick Banks (“Plaintiff”) (Dkt. 17) of the Court’s order dismissing his
case for lack of jurisdiction (Dkts. 12;15). Defendants have not appeared.
In general, this case arises out of events that occurred in 2003 and 2004,
when Defendant Special Agent Timothy Pivnichy, of the FBI, purportedly
interviewed Plaintiff’s fiancée, Meredith Bondi, in an alleged attempt to intimidate
her and presumably incriminate Plaintiff.1 Plaintiff alleges that he reported this
full procedural background and facts of this case are well articulated in the
Magistrate Judge’s Order recommending dismissal of Plaintiff’s case (Dkt. 12) and
the Court incorporates the same in this Order.
incident, but that an elaborate cover up ensued. The various defendants named in
the complaint include forty-four judges who are not judges in the District of Idaho;
several United States Senators, including Hillary Rodham Clinton and Mitt
Romney; the “United States Senate” and “Congress”; one newspaper; the CIA,
including its director, and the office of Science and Technology; the FBI, including
its director; President Obama; the United States District Court for the Western
District of Pennsylvania; the Administrative Office of the United States Courts; the
United States Probation Office; and several physicians and other named
individuals, none of whom appear to reside in Idaho. Plaintiff also does not reside
in Idaho. Nor do any of the events alleged in the complaint appear to have
occurred in Idaho.
Magistrate Judge Candy W. Dale recommended dismissal of Plaintiff’s
complaint for several reasons, including lack of subject matter jurisdiction,
improper venue, failure to comply with Rule 8 of the Federal Rules of Civil
Procedure, failure to state a claim pursuant to 42 U.S.C. § 1983 under either the
Fifth or Fourteenth Amendment, and failure to identify any facts supporting a
violation of the Sioux Treaty. 2 Judge Dale also determined Plaintiff’s complaint
did not pay a filing fee with his complaint and instead filed an
application to proceed in forma pauperis. (Dkt. 1.) Section 1915(e) of Title 28 of
the United States Code authorizes federal courts to dismiss claims filed in forma
pauperis “at any time if the court determines that … the action … is frivolous or
was time-barred under the applicable statute of limitations. (Dkt. 12, pp. 12-13.)
Upon finding Judge Dale’s Order and recommendation well-founded, this Court
dismissed Plaintiff’s case in its entirety, with prejudice. (Dkt. 15.)
Shortly after the Court’s Order of Dismissal, Plaintiff filed a one-page
“Motion to Vacate Judgment/Void Judgment Fed.R.Civ.Proc. 60(b)(4)” (Dkt. 17).
STANDARD OF LAW
Federal Rule of Civil Procedure 60(b) provides that the Court may
reconsider a final judgment or any order based on: “(1) mistake, surprise, or
excusable neglect; (2) newly discovered evidence; (3) fraud; (4) a void judgment;
(5) a satisfied or discharged judgment; or (6) extraordinary circumstances which
would justify relief.” School Dist. No. 1J, Multnomah County, Or. v. ACandS,
Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (citations omitted). Under Rule 60(b)(6),
the party seeking relief “must demonstrate both injury and circumstances beyond
[his] control that prevented [him] from proceeding with the action in a proper
fashion.” Latshaw v. Trainer Wortham & Co., Inc., 452 F.3d 1097, 1103 (9th Cir.
2006) (quoting Cmty. Dental Services v. Tani, 282 F.3d 1164, 1168 (9th Cir.
malicious … [or] fails to state a claim on which relief may be granted.” 28 U.S.C.
A motion for relief from judgment pursuant to Rule 60(b) is considered a
form of “extraordinary relief” reserved for “exceptional circumstances.” Engleson
v. Burlington N. R. Co., 972 F.2d 1038, 1044 (9th Cir. 1992) (citation omitted).
The moving party bears the burden of providing the existence of fraud,
misconduct, or any other ground for relief. Atchison, T & S.F. Ry. Co. v. Barrett,
246 F.2d 846, 849 (9th Cir. 1957).
In his motion, Plaintiff argues the judgment should be vacated because the
Court failed to recognize that “when an issue is related to affecting an Indian’s
Right to property The Statute of limitations is tolled” [sic]. (Dkt. 17.) Plaintiff
does not argue that relief from judgment is warranted because of mistake,
inadvertence, surprise, excusable neglect, newly discovered evidence, fraud, a void
judgment, satisfaction of the judgment, or due to any extraordinary circumstances
which rendered him unable to prosecute his case. Instead, Plaintiff devotes his
Motion to Vacate exclusively to the argument that the statute of limitations does
not apply because he is an American Indian. Even if the Court were to accept this
argument, Plaintiff does not challenge any of the other grounds upon which his
complaint was dismissed. As mentioned, Judge Dale found the Court lacked
subject matter jurisdiction, that venue was improper, and that Plaintiff failed to
comply with Rule 8 of the Federal Rules of Civil Procedure, failed to state a claim
pursuant to 42 U.S.C. § 1983 under either the Fifth or Fourteenth Amendment, and
failed to identify any facts supporting a violation of the Sioux Treaty. Plaintiff
does not challenge any of the aforementioned findings in his Motion to Vacate.
Further, although Plaintiff claims the Court should have allowed him to amend his
complaint to set forth facts to establish jurisdiction and proper venue, he does not
identify any facts to challenge Judge Dale’s findings with respect to subject matter
jurisdiction or venue.
The Court has reviewed Plaintiff’s papers and considered his arguments, and
finds no basis for vacating the judgment under Rule 60. Plaintiff’s Motion to
Vacate (Dkt. 17) is accordingly DENIED.
DATED: January 24, 2017
Edward J. Lodge
United States District Judge
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