Banks et al v. New York Police Department et al

Filing 10

ORDER ADOPTING #8 Report and Recommendation, DENYING #4 Motion for Leave to Proceed in forma pauperis filed by Frederick Banks, DENYING #5 Motion for Leave to Proceed in forma pauperis filed by Kenneth Posner, DISMISSING action pursuant to 28 USC 1915. The claims in counts one & two are dismissed w/prejudice because they fail to state a claim upon which relief may be granted. The claims in count three are dismissed w/o prejudice for lack of personal jurisdiction over dfts. The frivolous claims in count four are dismissed w/prejudice; the remaining claims in count four are dismissed w/o prejudice for lack of personal jurisdiction over dfts. The claims in count five are dismissed w/o prejudice for lack of personal jurisdiction. Signed by Honorable Stephen P. Friot on 4/15/15. (llg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
FREDERICK BANKS and KENNETH )
POSNER,
)
)
Plaintiffs,
)
)
vs.
)
)
NEW YORK POLICE DEPARTMENT, )
et al.,
)
)
Defendants.
)

Case No. CIV-14-1427-F

ORDER
Plaintiffs, appearing pro se, have filed a document entitled “Indictment and
Petition for Writ of Mandamus Complaint.” Complaint, doc. no. 1. Plaintiffs’
pleadings are liberally construed.
Magistrate Judge Shon T. Erwin has issued a Report and Recommendation
(doc. no. 8) recommending that plaintiffs’ motions to proceed in forma pauperis (doc.
nos. 4, 5) be denied. The Report also finds that much of the complaint is based on
claims which are frivolous, malicious, or fail to state a claim upon which relief may
be granted, and that plaintiffs have named defendants over whom this court does not
have personal jurisdiction. Accordingly, in addition to recommending denial of the
in forma pauperis motions, the Report recommends that the complaint be dismissed.
The Report advised plaintiffs that failure to make timely objection to the Report
by April 6, 2015, waives their right to appellate review of both factual and legal

matters contained in the Report. No objection to the Report has been filed and no
extension of time within which to object has been sought.1
Having conducted its own review and with no objection having been filed, the
Report of Magistrate Judge Erwin is ACCEPTED, ADOPTED and AFFIRMED.
As recommended in the Report, plaintiffs’ motions to proceed in forma pauperis, doc.
nos. 4, 5 are DENIED, and this action is dismissed pursuant to 28 U.S.C. § 1915. The
claims in counts one and two are dismissed with prejudice because they fail to state
a claim upon which relief may be granted. The claims in count three are dismissed
without prejudice for lack of personal jurisdiction over the defendants. The frivolous
claims in count four are dismissed with prejudice; the remaining claims in count four
are dismissed without prejudice for lack of personal jurisdiction over the defendants.
The claims in count five are dismissed without prejudice for lack of personal
jurisdiction.
Dated this 15th day of April, 2015.

14-1427p001.wpd

1

The Report was mailed to the plaintiffs, but the copy of the Report that was mailed to
Frederick Banks was returned to sender due to insufficient address. Doc. no. 9.

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