Banks v. Song et al

Filing 11

MEMORANDUM AND ORDER denying 8 Motion to Appoint Counsel; denying 8 Motion to Appoint ad Litem. Plaintiff's objection to the initial partial filing fee is sustained, and no collection action will be ordered in this matter. This matter is dismissed. Signed by U.S. District Senior Judge Sam A. Crow on 2/23/18. Mailed to pro se party Frederick Banks by regular mail (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

FREDERICK BANKS,
Plaintiff,
v.

CASE NO. 17-3119-SAC

SOO SONG, et al.,
Defendants.

MEMORANDUM AND ORDER
This matter is a civil rights action filed against several
defendants including federal officials and agencies. Plaintiff, an
Ohio prisoner, proceeds pro se and seeks leave to proceed in forma
pauperis.
Background
Plaintiff commenced this action on July 20, 2017, against two
United States attorneys, a federal judge, a federal court, three
agents of the Federal Bureau of Investigation (FBI), the FBI, the
Central Intelligence Agency (CIA), the director of the CIA, the United
States Marshals Service, a private attorney, and two correctional
officers. He claims the defendant judge defamed him in a July 2017
hearing and misstated facts in order to keep him confined. He also
claims the attorneys and judge caused him to be placed in a mental
hospital so that he would be forced from his home. Finally, he claims
that the defendant corrections officers prepared frivolous reports
against him, and that they took this action at the request of the
government and the FBI. He seeks damages, release from confinement,
and the dismissal of criminal charges against him.
On August 8, 2017, the Court entered an order denying leave to

proceed in forma pauperis and directing plaintiff to submit the full
filing fee within thirty days. This was based upon plaintiff’s filing
history in the federal courts and a determination that he is subject
to the provisions of 28 U.S.C. § 1915(g).
On August 21, 2017, plaintiff filed a motion to vacate, stating
that he is not subject to the provisions of 28 U.S.C. § 1915(g) because
he is civilly committed. The Court granted the motion to vacate on
November 15, 2017. Accordingly, plaintiff’s objection to the initial
partial filing fee is sustained and no collection action will be
ordered.
Screening
A federal court must conduct a preliminary review of any case
in which a prisoner seeks relief against a governmental entity or an
officer or employee of such an entity. See 28 U.S.C. §1915A(a).
Following this review, the court must dismiss any portion of the
complaint that is frivolous, malicious, fails to state a claim upon
which relief may be granted, or seeks monetary damages from a defendant
who is immune from that relief. See 28 U.S.C. § 1915A(b).
In screening, a court liberally construes pleadings filed by a
party proceeding pro se and applies “less stringent standards than
formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S.
89, 94 (2007).
To avoid a dismissal for failure to state a claim, a complaint
must set out factual allegations that “raise a right to relief above
the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007). The court accepts the well-pleaded allegations in the
complaint as true and construes them in the light most favorable to
the plaintiff. Id. However, “when the allegations in a complaint,

however true, could not raise a [plausible] claim of entitlement to
relief,” the matter should be dismissed. Id. at 558. A court need not
accept “[t]hreadbare recitals of the elements of a cause of action
supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). Rather, “to state a claim in federal court, a
complaint must explain what each defendant did to [the pro se
plaintiff]; when the defendant did it; how the defendant’s action
harmed [the plaintiff]; and what specific legal right the plaintiff
believes the defendant violated.” Nasious v. Two Unknown B.I.C.E.
Agents, 492 F.3d 1158, 1163 (10th Cir. 2007).
The Tenth Circuit has observed that the U.S. Supreme Court’s
decisions in Twombley and Erickson set out a new standard of review
for dismissals under 28 U.S.C. § 1915(e)(2)(B)(ii) dismissals. See
Key v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007)(citations omitted).
Following those decisions, courts “look to the specific allegations
in the complaint to determine whether they plausibly support a legal
claim for relief.” Kay, 500 F.3d at 1218 (quotation marks and internal
citations omitted). A plaintiff “must nudge his claims across the line
from conceivable to plausible.” Smith v. United States, 561 F.3d 1090,
1098 (10th Cir. 2009). In this context, “plausible” refers “to the
scope of the allegations in a complaint: if they are so general that
they encompass a wide swath of conduct much of it innocent,” then the
plaintiff

has

not

“nudged

[the]

claims

across

the

line

from

conceivable to plausible.” Robbins v. Oklahoma, 519 F.3d 1242, 1247
(citing Twombly at 1974).
The Court has reviewed the complaint and finds no basis to allow
this matter to proceed. First, it does not appear that venue is proper
in the District of Kansas. Whether venue is proper in a federal

district is governed by 28 U.S.C. § 1391, which provides that a civil
action may be brought in:
(1)

a judicial district in which any defendant resides,
if all defendants are residents of the State in which
the district is located;

(2)

a judicial district in which a substantial part of the
events or omissions giving rise to the claim occurred,
or a substantial part of the property that is the
subject of the action is situated; or

(3)

if there is no district in which an action may
otherwise be brought as provided in this section, any
judicial district in which any defendant is subject
to the court’s personal jurisdiction with respect to
such action.

28 U.S.C. § 1391(b).
Here, none of the acts or omissions alleged took place in Kansas,
and neither plaintiff nor any defendant is a Kansas resident or has
any apparent connection to Kansas that would arguably provide a basis
for personal jurisdiction in this district.
Under 28 U.S.C. § 1406, a “district court of a district in which
is filed a case laying venue in the wrong division or district shall
dismiss, or if it be in the interest of justice, transfer such case
to any district or division in which it could have been brought.” 28
U.S.C. § 1406.
Here, the claims appear to be a spurious attack on ongoing
criminal proceedings. It also appears that plaintiff has presented
similar, if not identical, claims in other jurisdictions. See, e.g.,
Banks v. Cocas, 2017 4020376, *1 (N.D. Ohio, Sep. 13, 2017)(denying
petition for mandamus where plaintiff “challenge[d] his on-going
criminal prosecution in the Western District of Pennsylvania, claims
he was defamed by his trial judge and the United States Attorneys

assigned to his case, and claims the FBI and the CIA are conspiring
him to keep him incarcerated.”). Because the claims do not have
apparent merit, the Court concludes a transfer of this matter would
not be in the interest of justice.
In sum, the Court finds this matter must be dismissed for lack
of venue and finds the assertions are legally frivolous, so that the
transfer of this matter to a district where venue would be proper is
not warranted.
IT IS, THEREFORE, BY THE COURT ORDERED this matter is dismissed.
IT IS FURTHER ORDERED plaintiff’s motion to appoint counsel and
a guardian ad litem (Doc. #8) is denied as moot.
IT IS FURTHER ORDERED plaintiff’s objection to the initial
partial filing fee (Doc. #10) is sustained, and no collection action
will be ordered in this matter.
IT IS SO ORDERED.
DATED:

This 23rd day of February, 2018, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge