Banks v. Roe
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 6 in full. Any appeal of this decision should not be taken in good faith. Signed by Judge Dana L. Christensen on 9/19/2017. Mailed to Banks. (TAG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
ADRIAN ROE, et al.,
United States Magistrate Judge Jeremiah C. Lynch entered Findings and
Recommendations in this case on July 26, 2017, recommending dismissal of
Plaintiff Frederick Banks's ("Banks") Complaint for lack of jurisdiction. Banks
filed an objection to the Findings and Recommendations, and so is entitled to a de
novo review of those findings and recommendations to which he specifically
objects. 28 U.S.C. § 636(b)(1 )( c).
Banks is an inmate at the Northeast Ohio Correctional Center in
Youngstown, Ohio. He filed a civil rights petition against the following
Defendants: Adrian Roe, his Pittsburgh criminal defense attorney; Mark R.
Hornak, United States District Judge for the Western District of Pennsylvania;
Robert Cessar and Sue Song, Assistant United States Attorneys for the District of
Pennsylvania; the United States District Court for the Western District of
Pennsylvania; Special Agents Sean Langford, Robert Werner, and Scott Smith;
Mike Pompeo, the Director of the Central Intelligence Agency; the Federal Bureau
of Investigation; and the Central Intelligence Agency. (Doc. 1.) In his Amended
Complaint and Objections (Doc. 7), he adds the United States Attorney for the
District of Montana as a Defendant. 1 Banks asks this Court to enter declaratory
judgment against Judge Hornak finding that the Judge delayed Banks's case in
violation of a clear legal duty. Banks also asks the Court to issue writs of
mandamus and quo warranto relative to Judge Hornak's purported acts. (Docs. 1
and 3.) As to the remaining Defendants, Banks seeks monetary compensation of
between $55 and $855 million. Id.
Because the parties are familiar with the facts of this case they will only be
included here as necessary to explain the Court's order.
Given that Banks is proceeding prose, this Court will construe Banks's Amended
Complaint naming the U.S. Attorney as though Banks had named the U.S. Attorney as a
Defendant, in an effort to cure Judge Lynch's finding that the Court lacks personal jurisdiction.
When a pro se plaintiff fails to appropriately identify a defendant, the court may look to the entire
complaint to determine the plaintiff's intent. Rice v. Hamilton Air Force Base Commissary, 720
F.2d 1082, 1085 (9th Cir. 1983).
With respect to an inmate defendant's prose pleadings, the court applies a
"less stringent standar[d] than formal pleadings drafted by lawyers." Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam). Therefore, this Court will construe
Banks' s pleadings and amendments liberally and afford him the benefit of any
doubt. Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012).
Because Banks is a prisoner proceeding in form.a pauperis, the court must
screen his Complaint under 28 U.S.C. § 1915. This statute requires the court to
review a prisoner's complaint and dismiss it in part or full ifthe complaint is
"frivolous," "fails to state a claim upon which relief may be granted," or "seeks
monetary relief from a defendant who is immune." Id. For the reasons discussed
below, Banks's Complaint is subject to dismissal because this Court lacks
jurisdiction, and Judge Hornak is entitled to absolute judicial immunity.
Banks objects to two of Judge Lynch's findings, but does not object to the
finding on quo warranto relief. Both objections will be addressed separately
Judge Lynch finds that the Court does not have jurisdiction over Banks's
claims because his Complaint does not allege facts that support jurisdiction under
either Montana's long-arm statute or due process. (Doc. 6 at 4-7.) Neither Banks
nor any of the Defendants named in the initial Complaint reside in Montana. None
of the events alleged in the Complaint occurred in Montana. Thus, Judge Lynch
does not find the "certain minimum contacts" necessary to support jurisdiction.
See Int'/ Shoe Co. v. Wash., 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer,
311 U.S. 457, 463 (1940).)
Banks then amended his Complaint to name the U.S. Attorney for the
District of Montana as a Defendant. (Doc. 8 at 1.) Banks ordered him to
investigate the allegations contained in his Complaint, and to issue writs of
mandamus and quo warranto against Judge Hornak and the remaining
Defendants. 2 Id. Banks claims the Court now has personal jurisdiction because
the U.S. Attorney resides in Montana. (Doc. 8 at 1.)
Upon review, this Court finds no error with Judge Lynch's finding that this
Court lacks jurisdiction over Banks' s claim, even with the additional Defendant.
In the Ninth Circuit, joinder is fraudulent when a plaintiff names a "sham
defendant;" one against whom no cause of action can be stated. Chicago, R.I. &
P. Ry. Co. v. Schwyhart, 227 U.S. 184, 193-94 (1913); Wilson v. Rep. Iron &
A writ of quo warranto challenges the authority of a public official and must be asserted
by the government, not a private individual. Johnson v. Manhattan Ry. Co., 289 U.S. 479, 502
Steel Co., 257 U.S. 92, 97 (1921) (fraudulentjoinder occurs when a defendant has
"no real connection with the controversy"); Ritchey v. Upjohn Drug Co., 139 F.3d
1313, 1318 (9th Cir. 1998). For a court to determine the existence of a "sham
defendant," the failure in the complaint must be obvious according to the settled
rules of the state. McCabe v. General Foods Corp., 811 F.2d 1336, 1339 (9th Cir.
1987). When joinder is fraudulent, the court may ignore the presence of that
defendant for the purpose of establishing jurisdiction. Hunter v. Philip Morris
USA, 582 F .3d 1039, 1043 (9th Cir. 2009).
Banks does not state a valid cause of action against the U.S. Attorney, nor
does he allege any prejudice or harm suffered at the hands of the U.S. Attorney.
Instead, the Complaint instructs the U.S. Attorney to investigate Banks's
allegations against the other Defendants. Even viewed in the light most favorable
to Banks, under well-settled Montana law, the U.S. Attorney has no real
connection to the controversy and Banks alleges no facts entitling him to relief.
Meagher v. Butte-Silver, 160 P.3d 552, 556 (Mont. 2007) (setting forth the
standard of a motion to dismiss under Montana law.) Accordingly, joinder is
fraudulent, and this Court may ignore the presence of the U.S. Attorney for the
purpose of establishing jurisdiction. Thus, Judge Lynch's finding that the Court
lacks jurisdiction is proper.
Writ of Mandamus/Declaratory Relief
Banks argues that Judge Hornak unlawfully delayed his case in violation of
his clear legal duty under 28 U.S.C. § 453, the judicial oath. (Doc. 1 at 1.) Judge
Lynch concludes that Judge Hornak is entitled to absolute immunity for his
judicial acts." See e.g., Bradley v. Fisher, 80 U.S. 335, 347 (1872). Judges are
immune "from claims for declaratory and injunctive relief arising from their
judicial acts." Atkinson-Baker & Assoc., Inc. v. Kolts, 7 F.3d 1452, 1454 (9th Cir.
1993). Judge Lynch also concludes that this Court lacks authority to issue a writ
of mandamus to another district court. Mullis v. US. Bankr. Ct. for Dist. ofNev.,
828 F.2d 1385, 1393 (9th Cir. 1987); See also Klayman v. Kollar-Kotelly, 892 F.
Supp. 2d 261, 264 (D.D.C. 2012).
Banks claims that Judge Hornak, while immune for his judicial acts, is not
immune from an action seeking declaratory relief. (Doc. 8 at 1-2.) He cites Africa
v. Anderson, to contend that an action seeking declaratory judgment against a
judicial officer is proper. 542 F. Supp. 224 (E.D. Pa. 1982). In Africa, the issue
was whether the plaintiffs First Amendment right to freedom of religion was
violated when Judge Anderson denied the Plaintiff the opportunity to represent
herself in a criminal action. The Federal Declaratory Judgment Act allows the
court to address a complaint or controversy ifthe court has jurisdiction. 28 U.S.C.
§ 2201. In Africa, the Plaintiff raised a constitutional issue, invoking jurisdiction
under 28 U. S.C. § 1331. Banks does not raise an issue which invokes federal
question jurisdiction, and accordingly, this Court lacks jurisdiction to hear Banks' s
claim for declaratory judgment.
Nor does this Court have jurisdiction to issue a writ of mandamus against a
member of the judiciary. A district court has original jurisdiction to issue a writ 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,
jurisdiction over Judge Hornak exists only if the judiciary is an "agency"
contemplated within the meaning of Title 28 of the United States Code. Trackwell
v. US. Gov't, 472 F.3d 1242, 1245 (10th Cir. 2007). Section 451 defines
"agency" as "any department, independent establishment, commission,
administration, authority, board or bureau of the United States or any corporation
in which the United States has a proprietary interest, unless the context shows that
such term was intended to be used in a more limited sense." 28 U.S.C. § 451. A
"department" is "one of the executive departments enumerated in section 1 of Title
5, unless the context shows that such term was intended to describe the executive,
legislative, or judicial branches of the government." Id.
No court has yet interpreted "agency" to mean the judicial branch of
government. Klayman, 892 F. Supp. 2d at 264. In Trackwell, the Tenth Circuit
similarly concluded that the judiciary is not an "agency" within the meaning of 28
U.S.C. § 451, noting the oddity of considering the Supreme Court as an "Appellate
Adjudicative Agency." Thus, this Court affirms Judge Lynch's findings that (1)
Judge Hornak has absolute judicial immunity, and (2) even ifhe does not, this
Court lacks jurisdiction to consider Banks's claims for declaratory judgment and
Accordingly, IT IS ORDERED that Judge Lynch's Findings and
Recommendations (Doc. 6) is ADOPTED IN FULL. This case is DISMISSED
IT IS FURTHER ORDERED that the Clerk of Court is directed to close this
matter and enter judgment pursuant to Rule 58 of the Federal Rules of Civil
IT IS FURTHER ORDERED that the Clerk of Court is directed to have the
docket reflect that the Court certifies pursuant to Rule 24(a)(3)(A) of the Federal
Rules of Appellate Procedure that any appeal of this decision should not be taken
in good faith. The record makes plain that this Court lacks jurisdiction and the
filing in Montana is frivolous, not grounded in law or fact.
DATED this li_ day of September
Dana L. Christensen, Chief Jud e
United States District Court
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