BANKS v. LANGFORD et al
Filing
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OPINION. Signed by Judge Noel L. Hillman on 7/14/16. (jbk, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
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Petitioner,
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v.
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SEAN LANGFORD, et al.,
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Respondents.
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___________________________________:
FREDERICK BANKS,
Civ. No. 16-4176 (NLH)
OPINION
APPEARANCES:
Frederick Banks, # 05711-068
F.C.I. Butner
P.O. Box 1000
Butner, NC 27509
Petitioner Pro se
HILLMAN, District Judge
Petitioner Frederick Banks, a prisoner confined at the
Federal Correctional Institution (“FCI”) in Butner, North
Carolina, filed this writ for mandamus under 28 U.S.C. § 1361,
seeking to compel the named Respondents to “perform their
official duties.” (ECF No. 1).
I.
Filing Fee
Pursuant to Local Civil Rule 54.3, the Clerk shall not be
required to enter any suit, file any paper, issue any process,
or render any other service for which a fee is prescribed,
unless the fee is paid in advance.
The entire fee to be paid in
advance of filing a civil complaint, including a petition for
writ of mandamus, is $400.
That fee includes a filing fee of
$350 plus an administrative fee of $50, for a total of $400.
Under certain circumstances, however, this Court may permit an
indigent party to proceed in forma pauperis.
Civil actions brought in forma pauperis are governed by 28
U.S.C. § 1915 and, ordinarily, the Prison Litigation Reform Act
of 1995, Pub. L No. 104–135, 110 Stat. 1321 (April 26, 1996)
(the “PLRA”), which amends 28 U.S.C. § 1915, establishes certain
financial requirements for prisoners who are attempting to bring
a civil action or file an appeal in forma pauperis.
If the PLRA applies to this action, in order to proceed in
forma pauperis, Petitioner is required to submit an affidavit,
including a statement of all assets and liabilities, which
states that he is unable to pay the fee; as well as a certified
copy of his inmate trust fund account statement(s) for the sixmonth period immediately preceding the filing of his petition.
28 U.S.C. § 1915(a)(1), (2).
However, if the PLRA does not
apply to this action, Petitioner in this case need only file an
affidavit of poverty in support of his request for in forma
pauperis status. See Madden, 102 F.3d at 78 (“Where the PLRA
applies, the petitioner must file an affidavit of poverty, a
six-month account statement, and a form authorizing prison
officials to withdraw money from his account; where it does not,
the petitioner need only file an affidavit of poverty.”).
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Case law in the Third Circuit is not settled as to whether
the PLRA applies to a petition for a writ of mandamus filed
pursuant to 28 U.S.C. § 1361.
In Madden v. Myers, 102 F.3d 74,
78 (3d Cir. 1996), the Third Circuit held that true or “bona
fide” mandamus petitions cannot be subject to the PLRA because
they fall outside the plain meaning of the PLRA. Madden v.
Myers, 102 F.3d 74, 78 (3d Cir. 1996) superseded by rule on
other grounds as noted in, In re Ordaz, 491 F. App'x 348, 2013
WL 142701 (3d Cir. Jan 14, 2013). 1
The Madden court reached this
conclusion by discussing the nature of a writ of mandamus —
concluding that it is a “procedural mechanism” and, thus, is
neither a “civil action” nor an “appeal” — and by determining
that a writ of mandamus is not the type of litigation that
Congress intended to curtail by implementing the PLRA. Madden,
102 F.3d at 77-78.
However, the Madden court conducted this analysis in the
context of a writ of mandamus filed pursuant to 28 U.S.C. §
1651(a), and specifically declined to decide whether the same
logic applied to § 1361 petitions. See Madden, 102 F.3d at 77
n.2 (“Although the same considerations may apply, whether the
PLRA applies to § 1361 petitions is not before us, and
1
See In re Ordaz, 491 F. App'x 348 (3d Cir. 2013) (noting that
3d Cir. L.A.R. 24.1(c)(1997) altered the prisoner account
statement procedure described in footnote 6 of Madden).
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therefore, we need not decide it at this time.”).
Thus,
although dicta in Madden suggests that the PLRA would not apply
to § 1361 petitions for the same reasons it does not apply to §
1651(a) petitions, there is no case law on point to provide this
Court with a definitive answer with respect to this issue.
Additionally, several district courts in this circuit have
applied the PLRA to petitions filed under § 1361. See, e.g.,
Roudabush v. Mensah, No. 15-8110 (NLH), 2016 WL 952336, at *3
(D.N.J. Mar. 14, 2016) (collecting cases); see also, e.g.,
Hamani v. Dir. Fed. Bureau of Prisons, No. 11-2780, 2011 WL
2112306, at *1 (D.N.J. May 25, 2011) (collecting cases) (“This
action is a civil action governed by the PLRA.”); Keys v. Dep't
of Justice, No. 4:08-CV-02239, 2009 WL 648926, at *2 (M.D. Pa.
Mar. 10, 2009) (holding that the PLRA applies based on the plain
language of the statute).
Notably, the Third Circuit has
affirmed a district court’s dismissal of a petition for writ of
mandamus under 28 U.S.C. § 1915(e)(2). See Franco v. Bureau of
Prisons, 207 F. App'x 145, 146 (3d Cir. 2006).
In Franco, the district court relied on case from the Court
of Appeals for the Second Circuit in support of its conclusion
that the PLRA applied to the petition for writ of mandamus filed
pursuant to § 1361 before it. See Franco v. Bureau of Prisons,
No. 05-5077, 2006 WL 1207976, at *1 (D.N.J. Apr. 28, 2006)
(citing In re Nagy, 89 F.3d 115 (2d Cir. 1996)).
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In In re Nagy,
the Second Circuit concluded that “the PLRA requirements apply
to those extraordinary writs that seek relief analogous to civil
complaints under 42 U.S.C. § 1983, but not to writs directed at
judges conducting criminal trials.” In re Nagy, 89 F.3d at 116.
Because the petition in In re Nagy was related to the judge
conducting the criminal trial, the appellate court concluded
that the requirements of the PLRA did not apply. Id.
In this case, the pending petition under § 1361 does not
relate to a judge conducting a criminal trial.
Rather, it seeks
relief analogous to a civil complaint, i.e. specific action on
the part of the named Respondents/Defendants.
Therefore, using
the standard set forth in In re Nagy — which has been utilized
by other courts in this district, see Hamani, No. 11-2780, 2011
WL 2112306, at *1, and use of which has been impliedly approved
of by the Third Circuit, see Franco, 207 F. App'x at 146 — this
Court determines that the petition for writ of mandamus
presently before the court is subject to the requirements of the
PLRA.
This Court further determines that this conclusion is
consistent with the reasoning set forth in Madden.
As an
initial matter, the petition at issue in Madden was related to a
pending habeas corpus action; whereas, in this case, Petitioner
seeks relief unrelated to any underlying civil or criminal
action.
Moreover, because Petitioner in this case asks this
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Court to compel the Bureau of Prisons to take certain action, it
appears to be precisely the type of litigation that Congress
indented to curtail through the implementation of the PLRA. See
Madden, 102 F.3d at 77 (“The clear import of the PLRA is to
curtail frivolous prison litigation, namely that brought under
42 U.S.C. § 1983 and the Federal Torts Claims Act.”).
For these reasons, this Court determines that the PLRA
does, in fact, apply to the instant petition for writ of
mandamus filed pursuant to 28 U.S.C. § 1361. See Roudabush, 2016
WL 952336, at *3 (applying PLRA to petition for writ of mandamus
filed pursuant to 28 U.S.C. § 1361).
II.
Petitioner’s In Forma Pauperis Application
As set forth above, the provisions of the PLRA do apply to
the instant case.
Title 28 U.S.C. § 1915, establishes certain
financial requirements for prisoners who are attempting to bring
a civil action in forma pauperis.
However, 28 U.S.C. § 1915
also prohibits a prisoner from bringing a civil action in forma
pauperis, “if the prisoner 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 on the grounds that it is frivolous, malicious, or
fails to state a claim upon which relief may be granted, unless
the prisoner is under imminent danger of serious physical
injury.” 28 U.S.C. § 1915(g).
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A prisoner’s entire action or appeal must be dismissed on
grounds enumerated in § 1915(g) to count as a “strike.” Byrd v.
Shannon, 715 F.3d 117, 125 (3d Cir. 2013); see also Ball v.
Famiglio, 726 F.3d 448 (3d Cir. 2013) cert. denied, 134 S. Ct.
1547, 188 L. Ed. 2d 565 (2014).
Moreover, a strike under §
1915(g) will accrue “only if the entire action or appeal is (1)
dismissed explicitly because it is ‘frivolous,’ ‘malicious,’ or
‘fails to state a claim’ or (2) dismissed pursuant to a
statutory provision or rule that is limited solely to dismissals
for such reasons, including (but not necessarily limited to) 28
U.S.C. §§ 1915A(b)(1), 1915(e)(2)(B)(i), 1915(e)(2)(B)(ii), or
Rule 12(b)(6) of the Federal Rules of Civil Procedure.” Byrd,
175 F.3d at 126.
Dismissals for frivolousness of civil actions or appeals,
prior to the 1996 amendment of § 1915, count as “strikes” under
28 U.S.C. § 1915(g). See Keener v. Pennsylvania Bd. of Probation
& Parole, 128 F.3d 143, 144 (3d Cir. 1997).
Further, “strikes”
under § 1915(g) can be accrued in actions or appeals where the
prisoner has prepaid the filing fee, as well as in actions or
appeals where the prisoner is proceeding in forma pauperis.
Byrd, 715 F.3d at 124.
While incarcerated, Petitioner in this case has had at
least three prior federal civil actions dismissed as frivolous
or malicious, or for failure to state a claim upon which relief
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may be granted. See, e.g., Banks v. Duquesne Light Co., No.
2:13-CV-1350, 2013 WL 6070054, at *1 (W.D. Pa. Nov. 14, 2013)
(dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)
(i) & (ii)); Banks v. U.S. Attorneys Office ex rel. W. Dist. of
Pennsylvania, No. 11-626, 2011 WL 6739290, at *3 (W.D. Pa. Dec.
1, 2011), report and recommendation adopted, No. 2:11-CV-626,
2011 WL 6749040 (W.D. Pa. Dec. 22, 2011) (dismissing petition
under 28 U.S.C. § 1915(e)(2)(B) because it was both frivolous
and failed to state a claim); Banks v. Hayward, No. 06-509, 2006
WL 1509148, at *1 (W.D. Pa. May 3, 2006), report and
recommendation adopted, No. 06-509, 2006 WL 1520693 (W.D. Pa.
May 30, 2006), aff'd, 221 F. App'x 98 (3d Cir. 2007) (dismissing
for failure to state a claim upon which relief can be granted);
Banks v. Hayward, No. 06-1572, 2007 WL 120045, at *3 (W.D. Pa.
Jan. 10, 2007) (stating that the suit should be dismissed as
frivolous/malicious pursuant to 28 U.S.C. § 1915(e)(2)(B)(i));
In re Banks, 204 F. App'x 141, 144 (3d Cir. 2006) (dismissing
Banks’ appeal pursuant to 28 U.S.C. § 1915(e)(2)(B)(I)).
This Court has previously recognized that Petitioner has
three strikes under § 1915(g). Order, Banks v. Federal Bureau of
Prisons, No. 11-1449 (NLH) (D.N.J. Feb. 14, 2012) ECF No. 4.
Other courts, including the Third Circuit Court of Appeals, have
also recognized that Petitioner is a three-strikes litigant.
See, e.g., Banks v. Francis, No. 2:15-CV-1400, 2015 WL 9694627,
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at *4 (W.D. Pa. Dec. 18, 2015), report and recommendation
adopted, No. 15-1400, 2016 WL 110020 (W.D. Pa. Jan. 11, 2016)
(“Therefore, Plaintiff is presumptively subject to revocation of
his in forma pauperis privileges pursuant to § 1915(g) by virtue
of his lengthy past history of wholly meritless litigation.”);
Banks v. United States, No. 13-1615, 2013 WL 6230672, at *1
(W.D. Pa. Dec. 2, 2013); In re Banks, 450 F. App'x 155, 157 n.1
(3d Cir. 2011).
Accordingly, because this Court concludes that Petitioner
has three strikes under 28 U.S.C. § 1915(g), his application to
proceed in forma pauperis is denied.
The Court notes that the
allegations of the Petition — which seek “disclosure of
electronic surveillance” (Pet. 1, ECF No. 1) — do not suggest
that Petitioner is in imminent danger of serious physical
injury. See 28 U.S.C. § 1915(g).
III. Conclusion
For the reasons set forth above, Petitioner’s application
for leave to proceed in forma pauperis will be denied and the
Clerk of the Court will be ordered to administratively terminate
this action, without filing the Petition or assessing a filing
fee. 2
Petitioner will be granted leave to apply to re-open
2
Such an administrative termination is not a “dismissal” for
purposes of the statute of limitations, and if the case is reopened pursuant to the terms of the accompanying Order, it is
not subject to the statute of limitations time bar if it was
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within 45 days by prepaying in full the $350 filing fee and the
$50 administrative fee.
An appropriate Order follows.
___s/ Noel L. Hillman_____
NOEL L. HILLMAN
United States District Judge
Dated: July 14, 2016
At Camden, New Jersey
originally submitted timely. See Houston v. Lack, 487 U.S. 266
(1988) (prisoner mailbox rule); Papotto v. Hartford Life & Acc.
Ins. Co., 731 F.3d 265, 275-76 (3d Cir. 2013) (collecting cases
and explaining that a District Court retains jurisdiction over,
and can re-open, administratively closed cases).
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