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)

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