Banks v Hornak, et al

Filing 14

Judge Allison D. Burroughs: ORDER entered denying 13 Motion for Leave to Appeal in forma pauperis. [Copy of order mailed to Frederick Banks at FMC Butner on 3/21/2017.] (PSSA, 3)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

FREDERICK BANKS,

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Plaintiff,
v.
JUDGE MARK HORNAK, et al.,
Defendants.

C.A. No. 16-10962-ADB

ORDER
BURROUGHS, D.J.
Now before the Court is the plaintiff’s motion to appeal in forma pauperis. For the
reasons set forth below, the motion is DENIED.
As the Court explained in its earlier orders of June 6, 2016 [ECF No. 4] and February 7,
2017 [ECF No. 9], Banks is a pretrial detainee and therefore is a prisoner within the meaning of
28 U.S.C. § 1915(h). That he is currently hospitalized to receive mental health evaluation and
treatment to possibly restore him to competency, see United States v. Banks, Crim. No. 2:15-cr00168-MRH (W.D. Pa.), does not change his prisoner status. The basis of his confinement is a
pending criminal prosecution—not a civil proceeding. See, e.g., Gibson v. City Municipality of
New York, 692 F.3d 198, 202 (2d Cir. 2012) (per curiam) (holding that where state criminal
proceedings were suspended but not terminated while plaintiff underwent treatment to restore
capacity, plaintiff was a prisoner for purposes of 28 U.S.C. § 1915(h)).
Banks is a “three strikes” litigant, meaning that he has, while a prisoner, filed three or
more civil cases in federal court that were dismissed as malicious or frivolous or for failure to

state a claim for relief. See 28 U.S.C. § 1915(g). He can only proceed without prepayment of a
fee if his case presents a claim of imminent danger of serious physical injury. See id. No such
claim exists in this action, which is why the Court would not allow him to proceed in forma
pauperis and dismissed the case after he failed to pay the filing fee. Because the “three strikes”
rule applies to appeals as well as cases filed in the district court, see id., Banks cannot appeal in
forma pauperis.
Further, Banks does not appear to be financially eligible for in forma pauperis status. He
represents in his financial affidavit that he owns real estate valued at $250,000, a vehicle valued
at $30,000, and stocks of an unspecified value. He also reports that he has cash or money in a
checking or savings account. Although his handwriting is unclear, it appears that the amount
thereof is $50,000. Without further clarification of the amount and nature of these alleged assets,
the Court cannot conclude that he is unable to pay the appeal fee.
The motion to appeal in forma pauperis [ECF No. 13] is DENIED. Banks may file a
motion to appeal in forma pauperis with the United States Court of Appeals for the First Circuit
within 30 days of service of this order. See Fed. R. App. P. 24(a)(5). The Clerk shall
immediately transmit this order to the First Circuit.
SO ORDERED.

Date: 3/21/2017

/s/ Allison D. Burroughs
ALLISON D. BURROUGHS
UNITED STATES DISTRICT JUDGE

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