BANKS v. SONG et al

Filing 4

REPORT AND RECOMMENDED DECISION re 1 Complaint filed by FREDERICK BANKS. Objections to R&R due by 8/16/2017. By MAGISTRATE JUDGE JOHN C. NIVISON. (CWP)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
FREDERICK BANKS,
Plaintiff
v.
SOO SONG, et al.,
Defendants

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2:17-cv-00277-DBH

RECOMMENDED DECISION AFTER SCREENING COMPLAINT
PURSUANT TO 28 U.S.C. § 1915A
In this action, Plaintiff Frederick Banks alleges he has been unlawfully detained in
the District of Ohio, in the context of criminal proceedings pending in the District of
Pennsylvania. Plaintiff has filed a pleading captioned “Complaint for a Writ of Quo
Warranto, Prohibition and Mandamus” in this district and several other districts. Plaintiff
also asserts a claim for defamation. The Court denied Plaintiff’s motion to proceed in
forma pauperis because Plaintiff did not provide the requisite financial information. (Order,
ECF No. 3.)
Plaintiff’s complaint is subject to screening under the Prison Litigation Reform Act
(PLRA) “before docketing, if feasible or … as soon as practicable after docketing,” because
Plaintiff is “a prisoner seek[ing] redress from a governmental entity or officer or employee
of a governmental entity.” 28 U.S.C. § 1915A(a).
Following a review of Plaintiff’s complaint, I recommend the Court dismiss the
complaint.

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STANDARD OF REVIEW
The § 1915A screening requires courts to “identify cognizable claims or dismiss the
complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or
fails to state a claim …; or (2) seeks monetary relief from a defendant who is immune from
such relief.” 28 U.S.C. § 1915A(b).
FACTUAL BACKGROUND
Plaintiff alleges Defendants have intentionally delayed his criminal case in the
Western District of Pennsylvania, United States v. Banks, No. 2:15-cr-00168 (W.D. Pa.),
such that he has now been incarcerated for a longer time than the sentence that could be
imposed if he were convicted. Plaintiff has named as Defendants the presiding district
court judge, the prosecuting attorneys, the FBI, the CIA, the United States Marshal Service,
certain law enforcement officials, and his appointed counsel. Plaintiff requests declaratory
relief, monetary relief, and an order releasing him from pretrial detention.
DISCUSSION
The federal mandamus statute states: “The 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. However, with respect to a writ of mandamus or prohibition directed toward the
activity of a federal district court, such a proceeding is designed either to compel a court to
act or to prevent a court from acting. In re Blodgett, 502 U.S. 236, 241 n.1 (1992); Will v.
United States, 389 U.S. 90, 95 (1967); In re Recticel Foam Corp., 859 F.2d 1000, 1001 n.1

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(1st Cir. 1988).1

“Exceptional circumstances” are required to invoke such an

“extraordinary remedy,” and, significantly, one district court cannot compel another
district court to act under such a writ. Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35
(1980). See also 28 U.S.C. § 1651(a) (the All Writs Act) (“The Supreme Court and all
courts established by Act of Congress may issue all writs necessary or appropriate in aid
of their respective jurisdictions and agreeable to the usages and principles of law.”)
(emphasis added).
As recently observed by the District of Hawaii, in which district Plaintiff also filed:
If Banks seeks an order directing the Western District of Pennsylvania to try
him forthwith, he must pursue such relief with the Court of Appeals for the
Third Circuit. And the Third Circuit has already denied Banks a writ of
mandamus in his pending criminal action in the Western District of
Pennsylvania, finding, “[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.” In re Banks, 670 F. App’x 54 (3d Cir. 2016)
(Mem.) (citing Madden v. Myers, 102 F.3d 74, 79 (3d Cir. 1996)). The Third
Circuit found that the record in Banks’ 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. 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’ pending criminal action.

The common law writ of quo warranto (Latin for “by what authority”), is “used to inquire into the authority
by which a public office is held or a franchise is claimed.” Black’s Law Dictionary 1371 (9th ed. 2009).
While it is unclear whether federal law recognizes a private action pursuant to a quo warranto writ, a federal
court could obtain jurisdiction over a state law civil claim pursuant to such a writ. Wilder v. Brace, 218 F.
Supp. 860, 862 – 63 (D. Me. 1963). In any event, state law would not authorize such a proceeding against
a federal court, nor would there be cause for one federal district court to inquire into the authority of another
federal district court.
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Banks v. Song, No. 1:17-cv-00339 (D. Haw. July 25, 2017) (Order Dismissing Action and
Denying In Forma Pauperis Applications). Simply stated, this Court lacks the authority to
provide the mandamus relief requested by Plaintiff.
Furthermore, to the extent Plaintiff attempts to assert an action for violation of his
civil rights, presumably pursuant to Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388, 389 (1971), even if this Court has jurisdiction over the
defendants, the District of Maine is not the proper venue for Plaintiff’s claim. Title 28
U.S.C. § 1391(b) provides:
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 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.
Given Plaintiff’s place of detention, the apparent residences of the individual
defendants, and the subject matter of the complaint, to the extent Plaintiff asserts an
actionable claim within the federal court’s jurisdiction, the proper venue for Plaintiff’s
action appears to be the Western District of Pennsylvania. In fact, Plaintiff’s complaint
has already been filed in or directed to the Western District of Pennsylvania. Banks v.
Song, No. 2:17-mc-00632 (W.D. Pa.) (not yet screened); see also Banks v. Roe, No. 2:17mc-00619 (W.D. Pa.) (dismissed without prejudice subject to Plaintiff’s compliance with

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requirements imposed on him as a “vexatious litigant”). Banks v. Roe, No. 2:17-mc-00604
(W.D. Pa.) (case transferred from the Eastern District of Texas, dismissed without
prejudice subject to Plaintiff’s compliance with requirements imposed on him as a
“vexatious litigant”); Banks v. Roe, No. 2:17-mc-00620 (W.D. Pa.) (case transferred from
the District of West Virginia Southern, awaiting screening).
Pursuant to 28 U.S.C. § 1406(a), “[t]he 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.”
“Whether dismissal or transfer is appropriate lies within the sound discretion of the district
court.” Minnette v. Time Warner, 997 F.2d 1023, 1026 (2d Cir. 1993). Because the action
is already pending in the Western District of Pennsylvania, transfer would serve no
purpose. Accordingly, dismissal is appropriate.2

A review of the PACER docket reveals that Plaintiff 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. 28 U.S.C. § 1915(g). Based on the prior litigation,
Plaintiff is not eligible for in forma pauperis relief, in any event. Id. While Plaintiff alleges that he is in
imminent danger because of a recent incident involving the stabbing of a prisoner in the facility in which
he is detained, and while an exception exists to the three-strike rule if the prisoner’s complaint reveals he
“is under imminent danger of serious physical injury,” Plaintiff’s allegation regarding the danger is vague
and conclusory as it relates to Plaintiff, and, therefore, fails to overcome the three-strike bar. Id.; cf. Ball
v. Famiglio, 726 F.3d 448, 468 (3d Cir. 2013) (vague and conclusory allegations cannot support a finding
of imminent danger). As recently noted by the District of Hawaii and the District of Ohio:
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Banks has accrued at least three strikes while a prisoner pursuant to 28 U.S.C. § 1915(g).
See Banks v. Orlando Police Dep’t, No. 16-14855 (11th Cir. 2016); Banks v. U.S. Marshal,
274 F. App’x 631 (10th Cir. 2008); Banks v. Disney, No. 1:16-cv-00333-BLW (D. Idaho
Jan. 17, 2017). As the Honorable Patricia A. Gaughan, U.S. District Judge for the Northern
District of Ohio, recently observed,
Banks is a notorious frequent filer who has had over 205 cases dismissed
as frivolous at the pleading stage. . . . When courts began to dismiss his
civil actions under § 1915(g), Banks attempted to circumvent the statute
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CONCLUSION
Based on the foregoing analysis, pursuant to 28 U.S.C. § 1915A, I recommend the
Court dismiss Plaintiff’s complaint.
NOTICE
A party may file objections to those specified portions of a magistrate
judge's report or proposed findings or recommended decisions entered
pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the district
court is sought, together with a supporting memorandum, within fourteen
(14) days of being served with a copy thereof.
Failure to file a timely objection shall constitute a waiver of the right
to de novo review by the district court and to appeal the district court's order.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 2nd day of August, 2017.

by filing habeas petitions under 28 U.S.C. § 2241 or petitions for writs of
mandamus to assert various civil rights violations.
Banks v. Song, No. 1:17-cv-00339 (D. Haw. July 25, 2017) (Order Dismissing Action and Denying In
Forma Pauperis Applications) (quoting Banks v. Valaluka, No. 1:15-cv-01935, 2015 WL 7430077, at *1
(N.D. Ohio Nov. 18, 2015)). Plaintiff’s failure to qualify for in forma pauperis relief thus provides another
basis for dismissal.
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