Banks v. Song et al

Filing 5

MEMORANDUM AND ORDER - This action is dismissed with prejudice. Plaintiff's Motion to Proceed in Forma Pauperis 2 is denied as moot. A separate judgment will be entered. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(GJG)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA FREDERICK BANKS, Plaintiff, 8:17CV263 vs. SOO SONG, US ATTORNEY ROBERT CESSAR, AUSA MARK R. HORNAK, UNITED STATES DISRTICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA, S.A. SEAN LANGFORD, S.A. ROBERT WERNER, S.A. SCOTT SMITH, in Charge; MIKE POMPEO, FEDERAL BUREAU OF INVESTIGATION, CENTRAL INTELLIGENCE AGENCY, UNITED STATES MARSHALS, ADRIAN ROE ESQUIRE, SIS LT. PEREZ, and SIS TECH LLOYD, MEMORANDUM AND ORDER Defendants. Plaintiff is confined at a federal correctional facility in Youngstown, Ohio, and a “notorious frequent flier”1 who has now set his sights on the United States District Court of Nebraska. Plaintiff petitions for a writ of mandamus against fourteen defendants: Soo Song, U.S. Attorney, Robert Cessar, U.S. Attorney, Mark R. Hornak, Federal District Court Judge for the Western District of Pennsylvania, the United States 1 See Banks v. Valaluka, Case No. 1:15CV1935, 2015 WL 7430077 (N.D. Ohio, Nov. 18, 2015) (citing Plaintiff’s 205 cases, as of that time, dismissed as frivolous at the pleading stage in 18 federal district courts). District Court for the Western District of Pennsylvania, S.A. Sean Langford, S.A. Robert Werner, S.A. in Charge Scott Smith, Mike Pompeo, the Federal Bureau of Investigation, the Central Intelligence Agency, the United States Marshals, Adrian Roe, an attorney in Pittsburgh, Pennsylvania, SIS Lt. Perez, and SIS Tech Lloyd. (Filing No. 1.) He alleges that they have intentionally delayed his criminal case and kept him confined beyond his statutory maximum term under the pretext that he is “incompetent” or “mentally ill.” Plaintiff seeks various forms of relief, including, an order for Judge Hornak to “get the case moving”; Defendants’ removal from office; immediate discharge from confinement; and $855 million dollars in damages. (Id.) Plaintiff’s claims arise from a pending criminal case against him in the Western District of Pennsylvania. Venue is not proper in Nebraska. Plaintiff cannot establish venue because none of Defendants reside in Nebraska, none of the events underlying Plaintiff’s claims occurred Nebraska, and Plaintiff does not reside in Nebraska. See 28 U.S.C. § 1391(b), (e) (applied in actions were defendant is an officer or employee of the United States). Plaintiff’s allegations, instead, are that “[t]his court has jurisdiction because the statements were read by the people in this district and caused harm to plaintiff.” (Filing No. 1.) This case will be dismissed.2 2 The court also finds this action is frivolous and fails to state a claim on which relief may be granted, see 28 U.S.C. § 1915(e)(2), and that it therefore is not “in the interest of justice” to transfer this case to the Western District of Pennsylvania, a district in which it could have been brought. See 28 U.S.C. § 1406(a) (“The 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.”). Cf. Banks v. Roe, et al., Case No. 1:17cv744, Filing No. 3 (E.D. VA, June 30, 2017) (Plaintiff filed a nearly identical writ of mandamus against nearly all of the same defendants as here; the court determined that it did not have jurisdiction pursuant to 18 U.S.C. § 4246, and alternatively, dismissed the matter as frivolous and for failure to state a claim under § 1915(e)); Banks v. Pivnichny, No. 2:15-CV-67, 2015 WL 4075062, at *2 (S.D. Ga. July 1, 2015) (declining to transfer Plaintiff’s case to the Western District of Pennsylvania, where it could have been filed, 2 IT IS THEREFORE ORDERED that: 1. This action is dismissed with prejudice. 2. Plaintiff’s Motion to Proceed in Forma Pauperis is denied as moot. 3. A separate judgment will be entered. Dated this 25th day of July, 2017. BY THE COURT: s/ Richard G. Kopf Senior United States District Judge because “[i]t would only frustrate the interest of justice to stack yet another case onto the considerable pile of cases Plaintiff already has pending in the Western District of Pennsylvania.”). 3

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