Banks v. Guffy et al
Filing
35
MEMORANDUM AND ORDER granting defts' motions to dismiss 16 , 26 , 29 & 31 & directing Clrk of Ct to CLOSE case. (See memo & order for complete details.) Signed by Honorable Christopher C. Conner on 01/10/12. (ki)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
FREDERICK BANKS,
:
:
Plaintiff
:
:
v.
:
:
DEBORAH GUFFY, CITI FINANCIAL :
MORTGAGE CO. INC., LISA A. LEE, :
JOSEPH A. GOLDBECK, JR., GARY :
E. McCAFFERTY, MICHAEL T.
:
McKEEVER, KRISTINA G. MORTHA, :
LESLIE E. PUIDA, THOMAS I.
:
PULEO, JAY E. KRIVITZ, DAVID B. :
FEIN, ANN E. SWARTZ, ANDREW F. :
GORNALL, GOLDBECK
:
McCAFFERTY & McKEEVER,
:
COURT OF COMMON PLEAS OF
:
ALLEGHENY COUNTY, PA,
:
UNITED STATES ATTORNEY,
:
DEPARTMENT OF JUSTICE, and
:
SECRETARY OF THE INTERIOR,
:
:
Defendants
:
CIVIL ACTION NO. 1:10-CV-2130
(Judge Conner)
MEMORANDUM
Presently before the court are four motions to dismiss the complaint filed by
Frederick Banks (“Banks”) in the above-captioned action. In his complaint, Banks
asserts that defendants instituted foreclosure proceedings on his property located
in Pittsburgh, Pennsylvania using flawed documents. He requests that the court
compel (1) the state court to dismiss the foreclosure action, (2) the Secretary of the
Interior to arrest and punish the defendants, and (3) the United States Attorney to
present evidence of defendants’ purported criminal wrongdoing to a grand jury.
For the reasons that the follow, the motions to dismiss will be granted.
I.
Background1
Frederick Banks (“Banks”) is a federal prisoner currently incarcerated at
FCI - Forrest City in Arkansas. See Federal Bureau of Prisons, Inmate Locator,
http://www.bop.gov/iloc2/LocateInmate.jsp (last visited Jan. 6, 2012). Banks claims
that in October of 2010, National Public Radio reported that the Department of
Justice was conducting an investigation into certain mortgage companies for filing
mortgage foreclosure actions against consumers using flawed documents. (Doc. 1 ¶
1). Banks asserts that during the same period, the defendants attempted to
foreclose on his property using mortgage documents unrelated to him or his
property. (Id. ¶ 2); see CitiFinancial Mortgage Co., Inc. v. Banks, Allegheny County,
GD-06-001215.
A.
The Real Property
The real property subject to the mortgage foreclosure action in the Court of
Common Pleas of Allegheny County is located at 52 South 8th Street, Pittsburgh,
Pennsylvania. (Doc. 26, Ex. A). The mortgage was made and given by Freddie
Banks to Firstar Bank, N.A. on February 28, 2000. (See Doc. 26 ¶ 4; Doc. 26, Ex. B).
The mortgage was later assigned to CitiFinancial Mortgage Co., Inc., and the
mortgage foreclosure action was commenced on January 17, 2006. (Doc. 26, Ex. E).
1
In accordance with the standard of review for a motion to dismiss pursuant
to Rule 12(b)(6), the court will present the facts as alleged in the complaint. See
infra Part II. However, those portions of the complaint which consist of no more
than legal conclusions or a formulaic recitation of the elements of a cause of action
have been disregarded. Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009);
Santiago v. Warminster Twp., 629 F.3d 121, 130-31 (3d Cir. 2010).
2
Freddie Banks, the owner of the real property and the mortgagor, is Frederick
Banks’ mother. See United States ex rel. Vampire Nation v. CitiFinancial Mortgage
Co., Inc., Civil Action No. 06-936, 2007 WL 2142404, at *2 (W.D. Pa. July 9, 2007).
Freddie Banks passed away on December 18, 2006. (Doc. 26, Ex. C).2 Nonetheless,
in the mortgage foreclosure proceedings, Banks held himself out to be Freddie
Banks, the owner and mortgagor of the real property. On January 19, 2011,
CitiFinancial Mortgage Co., Inc. discontinued the mortgage foreclosure matter in
the Court of Common Pleas of Allegheny County without prejudice. (Doc. 26, Ex. E,
at 2).
B.
Litigation in the Western District of Pennsylvania
On July 14, 2006, Banks filed an action in the Western District of
Pennsylvania against CitiFinancial Mortgage Co., Inc., Goldbeck McCafferty &
Mackeever, Lisa A. Lee, Cherly A. Dilchus, Beth Gradel, and Michael Mackeever.
See United States ex rel. Vampire Nation v. CitiFinancial Mortgage Co., Inc., Civil
Action No. 06-936, 2007 WL 2142404 (W.D. Pa. July 9, 2007). In that action, Banks
alleged that defendants violated his rights by foreclosing on a home owned by him.
Id. Asserting in that matter that he is African American, and defendants were
2
The court may consider matters of public record in ruling on a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6). See Sands v. McCormick,
502 F.3d 263, 268 (3d Cir. 2007) (noting that when ruling on a motion to dismiss, the
district court relies on the complaint, exhibits attached to complaint, and matters of
public record, which include judicial proceedings and the opinions of other courts);
see also Oshiver v. Levin, Fishbein, Secran & Berman, 38 F.3d 1380, 1385 n.2 (3d
Cir. 1994).
3
trying to foreclose on his “poor black family,” Banks claimed race discrimination.
Id. After Banks represented to the court that he was not and had never been the
owner of the home located at 52 South 8th Street, but rather his mother, Mrs.
Freddie Banks, owned the house, the magistrate judge recommended that the court
dismiss that action pursuant to the Prison Litigation Reform Act for failure to state
a claim. Id. at *2. Banks lived in the home prior to his arrest and incarceration in
February of 2005, see United States v. Banks, Criminal No. 2:03-CR-0245 (W.D. Pa.),
which was prior to institution of the mortgage foreclosure proceedings. Without a
legal interest in the real property, Banks lacked standing to bring the civil action.
The district court adopted the magistrate judge’s report and recommendation,
dismissed the complaint and denied leave to amend as futile given Banks’ lack of
interest in the real property and therefore lack of standing to pursue his claims.
United States ex rel. Vampire Nation v. CitiFinancial Mortgage Co., Inc., Civil
Action No. 06-936, 2007 WL 2142410 (W.D. Pa. July 24, 2007).
C.
Filing of the Instant Lawsuit
On October 15, 2010, Banks filed the instant action against numerous
defendants. (Doc. 1). Claiming to be a Lakota Sioux American Indian, Banks asks
the court to compel the Secretary of the Interior to have the defendants arrested
and punished under the provisions of the Sioux Treaty of Fort Laramie of 1868. (Id.
¶ 3). He further requests that the court compel the U.S. Attorney to present
evidence to a grand jury of criminal wrongdoing, violations of civil rights, and
4
violations of the Target Asset Relief Program. (Id. ¶ 4).3 Finally, Banks asserts that
only the Oglala Sioux Tribal Court has jurisdiction over an American Indian in a
mortgage foreclosure action. (Id. ¶ 5). Therefore, he requests that this court order
the Court of Common Pleas of Allegheny County to dismiss the mortgage
foreclosure action, CitiFinancial Mortgage Co., Inc. v. Banks, Allegheny County,
GD-06-001215. (Id. ¶ 5). Banks, a frequent litigator in the federal courts, with three
strikes under the Prison Litigation Reform Act (“PLRA”), a statute which requires
the screening and dismissal of inmate complaints in certain circumstances, see 28
U.S.C. § 1915, claims that the instant action is criminal in nature, and thus, the
PLRA does not apply. (Id. ¶ 6).
The court initially dismissed the action after Banks failed to pay the filing fee
or move to proceed without prepayment of fees and costs within thirty (30) days.
(See Docs. 5, 7). Banks moved to reopen the case, and proceed without prepayment
of fees, asserting that he was in transit to FCI-Safford and did not receive the
court’s order. (Docs. 8, 9). The court granted the motions and had the complaint
served. (Docs. 10, 12).
On February 22, 2011, the Court of Common Pleas of Allegheny County
(“Court defendant”) filed a motion to dismiss (Doc. 16) asserting Eleventh
Amendment immunity and, in the alternative, that as a state entity, the court does
3
The court is unaware of any program called the “Target Asset Relief
Program.” The court construes Banks’ complaint to be referencing the Troubled
Assets Relief Program, which is part of the Emergency Economic Stabilization Act
of 2008, Pub. L. 110-343, 122 Stat. 3765.
5
not qualify as a “person” subject to suit under 42 U.S.C. § 1983. On March 31, 2011,
defendants Lisa A. Lee, Joseph A. Goldbeck, Jr., Gary E. McCafferty, Michael T.
McKeever, Kristina G. Murtha, Leslie E. Puida, Thomas I. Puleo, Jay E. Kivitz,
David B. Fein, Ann E. Swartz, Andrew F. Gornall and Goldbeck McCafferty &
McKeever (hereinafter the “law firm defendants”) moved to dismiss the complaint
(Doc. 26). The law firm defendants assert numerous grounds for dismissal,
including pursuant to Federal Rule of Civil Procedure 41(b) for fraud on the court,
the PLRA under the three-strikes rule, Rule 12(b)(6) for failure to state a claim, Rule
12(b)(1) for lack of jurisdiction, and Rule 12(b)(3) for improper venue. (Doc. 26).
The third motion dismiss (Doc. 29), filed on April 1, 2011, by CitiFinancial Mortgage
Co., Inc. and Deborah Guffy, a CitiFinancial employee (hereinafter “CitiFinancial
defendants”), asserts that Banks’ claims are barred by the doctrine of res judicata
based on the 2006 Western District of Pennsylvania case, and that Banks lacks
standing. Finally, the federal government, on behalf of the United States Attorney,
the Department of Justice, and the Secretary of the Interior (hereinafter the
“federal defendants”), filed a motion to dismiss (Doc. 31) on April 4, 2011. The
federal defendants assert that the complaint fails to state a claim upon which relief
can be granted and that the complaint is deficient on jurisdictional grounds. (Id.)
Banks filed a brief in opposition (Doc. 34) on April 18, 2011. The motions have been
fully briefed and are ripe for disposition.
6
II.
Standard of Review
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the
dismissal of complaints that fail to state a claim upon which relief can be granted.
FED . R. CIV . P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the
court must “accept all factual allegations as true, construe the complaint in the light
most favorable to the plaintiff, and determine whether, under any reasonable
reading of the complaint, the plaintiff may be entitled to relief.” Gelman v. State
Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir. 2009) (quoting Phillips v. County
of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)); see also Kanter v. Barella, 489 F.3d
170, 177 (3d Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)).
Although the court is generally limited in its review to the facts contained in the
complaint, it “may also consider matters of public record, orders, exhibits attached
to the complaint and items appearing in the record of the case.” Oshiver v. Levin,
Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994); see also In re
Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).
Federal notice and pleading rules require the complaint to provide “the
defendant notice of what the . . . claim is and the grounds upon which it rests.”
Phillips, 515 F.3d at 232 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). To test the sufficiency of the complaint in the face of a Rule 12(b)(6) motion,
the court must conduct a three-step inquiry. See Santiago v. Warminster Twp., 629
F.3d 121, 130-31 (3d Cir. 2010). In the first step, “the court must ‘tak[e] note of the
elements a plaintiff must plead to state a claim.’” Id. (quoting Ashcroft v. Iqbal, 556
7
U.S. 662, 129 S. Ct. 1937, 1947 (2009)). Next, the factual and legal elements of a
claim should be separated; well-pleaded facts must be accepted as true, while mere
legal conclusions may be disregarded. Id.; see also Fowler v. UPMC Shadyside, 578
F.3d 203, 210-11 (3d Cir. 2009). Once the well-pleaded factual allegations have been
isolated, the court must determine whether they are sufficient to show a “plausible
claim for relief.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. at 1950 (citing Twombly,
550 U.S. at 556); Twombly, 550 U.S. at 555 (requiring plaintiffs to allege facts
sufficient to “raise a right to relief above the speculative level”). A claim “has facial
plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. 662, 129 S. Ct. at 1949. When the complaint fails to present a prima
facie case of liability, however, courts should generally grant leave to amend before
dismissing a complaint. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d
Cir. 2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000).
III.
Discussion
In 1996, Congress enacted the Prison Litigation Reform Act (“PLRA”),
codified at 28 U.S.C. § 1915, in an effort to curb the significant amount of prisoner
litigation in the federal courts. Pursuant to the PLRA, a prisoner is subject to a
three-strikes rule for commencing civil actions without prepayment of fees and
costs. See 28 U.S.C. § 1915(g). By statute:
In no event shall a prisoner bring a civil action or appeal a judgment in
a civil action or proceeding under this section if the prisoner has, on 3
or more prior occasions, while incarcerated or detained in any facility,
8
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.
Id. Plaintiff Banks has accrued well over three strikes. See Banks v. Pennsylvania,
Civil Action No. 09-1437, 2010 WL 569545, at *1 n.1 (W.D. Pa. Jan. 4, 2010) (citing
cases assessing three or more strikes and noting that between January of 2005 and
May of 2008 Banks has filed or participated in 45 civil actions in federal district
courts, 31 bankruptcy cases, and approximately 60 cases in the federal courts of
appeal); see also Banks v. Sager, Civil Action No. 1:11-CV-0741, 2011 WL 1542136
(M.D. Pa. Apr. 21, 2011).4 The complaint includes no claim that Banks is in
imminent danger of serious physical injury, which would render the three-strikes
provision inapplicable. 28 U.S.C. § 1915(g). Instead Banks attempts to evade
operation of the PLRA against him by asserting that his complaint is a request for
issuance of a writ of mandamus. (Doc. 1 ¶ 6).
The power to issue writs of mandamus, originally a form of common law
judicial relief compelling a public official to perform a duty mandated by law, is a
well-settled one now codified in federal statute. Pursuant to 28 U.S.C. § 1361, “[t]he
4
This court has previously taken judicial notice of the following civil rights
actions filed by Banks that were dismissed as legally frivolous for failure to state a
claim upon which relief may be granted: (1) Banks v. Hayward, et al., Civil No.
2:06-CV-00509 (W.D.Pa. May 30, 2006) (Lancaster, J.); Banks v. Hayward, et al., Civil
No. 2:06-CV-01572 (W.D. Pa. Jan. 10, 2007) (Lancaster, J.); Banks v. Dove, et al.,
Civil No. 1:06-CV-02289 (M.D. Pa. Jan. 16, 2007) (Conner, J.); and, Banks v.
Pittsburgh Tribune Review, et al., Civil No. 2:07-CV-00336 (W.D. Pa. May 4, 2007)
(Lancaster, J.). Banks v. Crockett, Civil No. 1:07-CV-1019, 2007 WL 1655504, * 2
(M.D. Pa. June 7, 2007) (Conner, J.).
9
district courts shall have original jurisdiction in any action in the nature of a
mandamus to compel an officer or employee of the United States or any agency
thereof to perform a duty owed to the plaintiff.”
A writ of mandamus is an extraordinary form of relief seldom granted. See
In re Patenaude, 210 F.3d 135, 140 (3d Cir. 2000) (calling a writ of mandamus “a
drastic remedy” which is “seldom issued” and its use “discouraged” (internal
citations and quotations omitted)). A plaintiff seeking the issuance of a writ has the
burden to establish that: (1) there are no other adequate means to attain the desired
relief, and (2) his right to a writ of mandamus is clear and indisputable. Hinkel v.
England, 349 F.3d 162, 164 (3d Cir. 2003) (citing In re Patenaude, 210 F.3d at 141).
Mandamus “is intended to provide a remedy for a plaintiff only if he has exhausted
all other avenues of relief and only if the defendant owes him a clear
nondiscretionary duty.” Heckler v. Ringer, 466 U.S. 602, 616 (1984) (citations
omitted).
The United States Court of Appeals for the Third Circuit has ruled that
mandamus petitions are not “civil actions” or “appeals” subject to the requirements
of the PLRA. In re Steele, 251 F. App’x 772 (3d Cir. 2007) (not published) (citing
Madden v. Myers, 102 F.3d 74, 77 (3d Cir.1996). However, a “litigant should not be
able to evade the PLRA by masking as a mandamus petition a paper otherwise
subject to the Act.” Madden v. Myers, 102 F.3d at 78. Accordingly, if a prisoner files
a “mandamus petition” that actually would initiate an appeal or a civil action, the
10
PLRA applies. In re Steele, 251 F. App’x at 773. With this understanding, the court
now turns to the motions to dismiss.
A.
Court of Common Pleas
Banks requests that this court order the Court of Common Pleas of
Allegheny County to dismiss the mortgage foreclosure action, CitiFinancial
Mortgage Co., Inc. v. Banks, Allegheny County, GD-06-001215. However, this court
lacks the authority to do so. A federal district court cannot by way of writ of
mandamus order state courts or state officials to take action. See In re Brown, 382
Fed. App’x 150, 150-51 (3d Cir. 2010) (citing In re Tennant, 359 F.3d 523, 531 (D.C.
Cir. 2004). Such a request extends beyond the bounds of the federal court’s
mandamus jurisdiction. Id.; see also In re Wallace, 405 Fed. App’x 580 (3d Cir. 2011)
(federal court lacks jurisdiction to compel state court to dismiss case).5 The court
will thus grant the Court defendant’s motion to dismiss.6
B.
Law Firm Defendants and CitiFinancial Defendants
With respect to the law firm defendants, their only discernable connection to
the mortgage foreclosure action is their representation of CitiFinancial in the
5
In addition, the court notes that the mortgage foreclosure action was
discontinued without prejudice on January 19, 2011, (Doc. 17, Ex. A, at 3), thereby
mooting Banks’ request.
6
Given the court’s conclusion that a writ of mandamus cannot issue against
a state court, the court need not address the court defendant’s other arguments for
dismissal. Nonetheless, assuming this were a civil action and assuming further that
Banks could surmount the three-strikes bar under the PLRA, the Court of Common
Pleas clearly enjoys sovereign immunity under the Eleventh Amendment. See
Benn v. First Judicial Dist. of Pa., 426 F.3d 233, 240-41 (3d Cir. 2005).
11
mortgage foreclosure. It appears that Banks is claiming the law firm defendants
assisted CitiFinancial in instituting the mortgage foreclosure action, purportedly
using flawed documents. (See Doc. 1 ¶ 2). However, neither the law firm and its
attorneys, nor CitiFinancial Mortgage Co., Inc. and its employees are officers or
employees of the United States, or any agency thereof within the meaning of the
mandamus statute. 18 U.S.C. § 1361. The court simply has no authority to issue a
writ of mandamus compelling them to perform any action. Indeed, Banks does not
ask the court to compel these defendants to take or desist in any action. Rather,
Banks requests that the court compel the Secretary of the Interior to arrest and
punish the defendants, and the U.S. Attorney to present evidence of defendants’
purported wrongdoing to a grand jury—requests which the court will address below
with regard to the federal defendants.
To the extent Banks is asserting a fraud claim against the law firm
defendants and the CitiFinancial defendants, such a civil action is barred by the
three-strikes rule of the PLRA. See 28 U.S.C. § 1915(g). Therefore, the motions to
dismiss filed by the law firm defendants and the CitiFinancial defendants will be
granted.7
C.
Federal Defendants
Banks requests that the court compel the Secretary of the Interior to cause
the defendants to be arrested and punished pursuant to the provisions of the Sioux
7
The court need not address the parties’ additional arguments for dismissal
of the complaint.
12
Treaty of Fort Laramie. (Doc. 1 ¶ 3). In addition, Banks requests that the court
order that the United States Attorney be compelled to present evidence of criminal
wrongdoing, civil rights violations and violations of the Troubled Assets Relief
Program by the other defendants to a federal grand jury. (Id. ¶ 4). The federal
defendants move to dismiss Banks’ complaint for failure to state a claim and lack of
jurisdiction. The Secretary of the Interior and the United States Attorney are
officers or employees of the United States that the court could, under its mandamus
powers, compel to act. 28 U.S.C. § 1361. The court will therefore address each
claim in turn.
1.
Sioux Treaty of Fort Laramie
In his complaint, Banks asserts that he is a Lakota Sioux American Indian
and requests that the court compel the Secretary of the Interior to arrest and
punish the defendants—presumably the law firm defendants and the CitiFinancial
defendants—pursuant the provisions of the Sioux Treaty of Fort Laramie.8 (Doc. 1
8
In some of the litigation Banks has brought or participated in before the
federal courts he claims to be African American. See e.g., Banks v. Hull, Civil No.
2:04-CV-1771 (W.D. Pa.) (Doc. 24 ¶¶ 2, 65); United States ex rel. Vampire Nation,
2007 WL 2142404, at *1 (civil action in which Banks claimed that the mortgage
company and lawyers were attempting to foreclose on his “poor black family”). In
other litigation, such as this action, Banks asserts that he is American Indian. (Doc.
1 ¶ 3); see also Banks v. U.S. Attorneys Office, Civil Action No. 11-626, 2011 WL
6739290 (W.D. Pa. Dec. 1, 2011). The Federal Bureau of Prisons Inmate Locator
identifies Banks as American Indian. Federal Bureau of Prisons, Inmate Locator,
http://www.bop.gov/iloc2/LocateInmate.jsp (last visited Jan. 6, 2012). The court
takes Banks’ assertion of American Indian heritage in the complaint as true for
purposes of the motions to dismiss. See Gelman v. State Farm Mut. Auto. Ins. Co.,
583 F.3d 187, 190 (3d Cir. 2009).
13
¶ 3). The Sioux Treaty of Fort Laramie, entered into April 29, 1868, ended armed
conflict between bands of the Loakota Indians and the United States, and granted
reservation land and hunting rights to the Lakota Indians in the Dakota territory.
See Treaty with the Sioux Indians, 15 Stat. 635. Article I of the treaty states, in
pertinent part:
If bad men among the whites, or among other people subject to the
authority of the United States shall commit any wrong upon the
person or property of the Indians, the United States will, upon proof
made to the agent and forwarded to the Commissioner of Indian
Affairs at Washington City, proceed at once to cause the offender to be
arrested and punished according to the laws of the United States, and
also re-imburse the injured person for the loss sustained.
Id. art. I.
In his complaint, Banks fails to state any wrong that has been committed
upon his person or property by the defendants. He claims that defendants
proceeded to foreclose on his property using flawed documents, namely the
mortgage of another individual taken on a different property. (Doc. 1 ¶ 2). However
Banks has admitted in other litigation that the property at issue, which is not within
the bounds of this district, is not owned by him. See United States ex rel. Vampire
Nation, 2007 WL 2142404.9 Nor is there any indication that Banks has submitted
9
The law firm defendants note that the document—an unrelated mortgage
for another property between different parties—was submitted in the state
foreclosure proceeding in error as an exhibit to a motion for summary judgment.
(Doc. 27, at 2). The complaint filed by CitiFinancial referenced the correct
mortgage and recording information, and as a matter of public record was
incorporated by reference. See PA . R. CIV . P. 1019(g). Moreover, the incorrect
document was replaced on October 28, 2010. (Doc. 26, Ex. E, at 2).
14
proof of any wrong to the Commissioner of Indian Affairs in accordance with
Article I of the Treaty. See Elk v. United States, 70 Fed. Cl. 405, 407 (Fed. Cl. 2006)
(stating in damages action under Article I “Bad Men” clause of Sioux Treaty that as
condition of receiving reimbursement Treaty “plainly requires that ‘proof [be] made
to the agent and forwarded to the Commissioner of Indian Affairs’”); Hebah v.
United States, 428 F.2d 1334, 1340 (Fed. Cl. 1970).
Moreover, in a recent opinion from the Court of Federal Claims, the court
interpreted the phrase “subject to the authority of the United States” in the “bad
men” clause of Article I of the Sioux Treaty of Fort Laramie. Richards v. United
States, 98 Fed. Cl. 278 (Fed. Cl. 2011). The court held that an individual who has no
connection to the federal government, other than his citizenship, is not “subject to
the authority of the United States” within the meaning of the “bad men” clause of
Article I of the Sioux Treaty, and therefore the United States could not be held
liable for any loss sustained by plaintiffs as a result of that individual’s conduct. Id.
at 290 (“[I]n order to invoke jurisdiction under the first “bad men” clause contained
in Article I of the Fort Laramie Treaty, a plaintiff must allege a ‘loss’ that resulted
from a ‘wrong’ committed by a ‘bad man’ who was ‘subject to the authority of the
United States,’ i.e., an individual who acted as an agent, employee, representative,
or in any other capacity for or on behalf of the United States.”).10 There is no
10
Richards involved a claim for reimbursement from the government for the
“wrongs” of an individual who killed two Indians in a drunk driving accident on a
highway passing through reservation lands subject to the Treaty of Fort Laramie.
Although Richards did not involve a request that the government arrest and punish
15
indication that the law firm or CitiFinancial defendants were acting as agents,
employees or representatives on behalf of the United States in the state court
mortgage foreclosure action. As such, they do not fall within the scope of Article I
of the Treaty. Therefore, Banks has not established a clear and indisputable right
to relief to warrant the extraordinary remedy of a writ of mandamus compelling the
Secretary of the Interior to act.
2.
Grand Jury
Banks also requests that the court compel the United States Attorney to
present evidence to a grand jury pursuant to 18 U.S.C. § 3332 of defendants’
purported criminal wrongdoing and violation of civil rights for allegedly failing to
follow through on a loan remodification. (Doc. 1 ¶ 4). Section 3332 of Title 18 of the
United States Code delineates the duty of special grand juries to inquire into
offenses against the criminal laws of the United States committed within the
the individual, the requirement that the individual be “subject to the authority of
the United States” is equally applicable to such requests. See Treaty with the Sioux
Indians, Art. I, 15 Stat. 635; see also Richards, 98 Fed. Cl. at 289 (quoting Zephier v.
United States, No. 03-768, slip op. at 9 (Fed. Cl. Oct. 29, 2004) (“The Sioux Treaty,
like others, clearly states that the United States will both arrest a non-Native
American government representative who harms a Sioux or his property and
reimburse the damages sustained by the claimant . . . .”) (emphasis added)). In
addition, there is some indication that the “wrongs” implicated by Article I of the
Sioux Treaty of Fort Laramie must be acts that threaten the peace that the Treaty
was intended to protect. See Richards, 98 Fed. Cl. at 288-89 (citing Garreaux v.
United States, 77 Fed. Cl. 726 (Fed. Cl. 2007) (dismissing complaint for lack of
jurisdiction where plaintiff asserted breach of contract/negligence claim against
federal agency, not individual subject to the authority of the United States for a
wrongful criminal act) and Hernandez v. United States, 93 Fed. Cl. 193 (Fed. Cl.
2010)).
16
district in which the special grand jury is impaneled. 18 U.S.C. § 3332(a). Either the
court or an attorney appearing on behalf of the United States may bring the grand
jury’s attention to any such alleged offenses. Id. The provision further states that
“[a]ny such attorney receiving information concerning such an alleged offense from
any other person shall, if requested by such other person, inform the grand jury of
such alleged offense . . . .” Id.
The deficiencies in Banks’ request are numerous. Section 3332, a provision
of the Organized Crime Control Act of 1970, creates a right for individuals to have
information known by them concerning organized crime to be presented to a special
grand jury. See In re Grand Jury Application, 617 F. Supp. 199, 203-06 (S.D.N.Y.
1985) (engaging in extensive analysis of legislative history of § 3332 and concluding
that § 3332 concerns the presentation of information of organized crime); see also
Sargeant v. Dixon, 130 F.3d 1067, 1068 (D.C. Cir. 1997) (noting that § 3332 is a
provision of the Organized Crime Control Act of 1970). Banks fails to allege any
organized crime purportedly engaged in by the law firm and CitiFinancial
defendants. In fact, the court is at a loss to identify any alleged criminal activity
whatsoever in Banks’ complaint. Rather, Banks complains of a mortgage
foreclosure action, that has since been dismissed, on a property not within this
district in which he has no legally cognizable interest. See United States ex rel.
Vampire Nation, 2007 WL 2142404 (in which Banks admitted to not owning the
property at 52 South 8th Street, Pittsburgh, Pennsylvania). Thus, even if Banks
had alleged organized criminal activity by the defendants, Banks lacks standing to
17
pursue a writ of mandamus compelling the presentation of information to a grand
jury. See Sargeant v. Dixon, 130 F.3d 1067, 1069 (D.C. Cir. 1997) (holding that
convicted felons lacked standing to seek writ of mandamus compelling the
presentation of information to grand jury of alleged prosecutorial misconduct
because their interests in the prosecution of government officials and seeing that
the laws are enforced are not legally cognizable interests under Article III ).
Moreover, special grand juries are only impaneled in districts with over four million
inhabitants or in which the Attorney General certifies in writing to the Chief Judge
of the district that a special grand jury is necessary due to criminal activity in the
district. See 18 U.S.C. § 3331(a). Such special grand juries are not impaneled in the
Middle District of Pennsylvania. Even if Banks had standing to pursue a writ of
mandamus, Banks fails to state a claim upon which relief may be granted. He is
simply not entitled to the requested relief. Therefore, the federal defendants’
motion to dismiss will be granted.
D.
Leave to Amend the Complaint
Although leave to amend is freely granted, particularly with respect to pro se
plaintiffs, the court need not grant leave to amend when amendment would be
futile. See Alston v. Parker, 363 F.3d 229, 235-36 (3d Cir. 2004). In the instant
matter, leave to amend would be futile. To the extent Banks’ complaint is in
mandamus, he fails to state a claim upon which relief may be granted. The court
cannot, as a matter of law, issue a writ of mandamus compelling action by a state
court or private entities and individuals. Nor can Banks show that his right to a
18
writ against the federal defendants is clear and indisputable or that there are no
other adequate means of obtaining relief. To the extent Banks’ complaint states
civil causes of action, his suit is barred pursuant to the three strikes rule of the
PLRA. See 28 U.S.C. § 1915(g).
IV.
Conclusion
For the reasons stated above, the court will grant the four motions to dismiss
filed by the defendants. An appropriate order follows.
S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge
Dated:
January 10, 2012
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
FREDERICK BANKS,
:
:
Plaintiff
:
:
v.
:
:
DEBORAH GUFFY, CITI FINANCIAL :
MORTGAGE CO. INC., LISA A. LEE, :
JOSEPH A. GOLDBECK, JR., GARY :
E. McCAFFERTY, MICHAEL T.
:
McKEEVER, KRISTINA G. MORTHA, :
LESLIE E. PUIDA, THOMAS I.
:
PULEO, JAY E. KRIVITZ, DAVID B. :
FEIN, ANN E. SWARTZ, ANDREW F. :
GORNALL, GOLDBECK
:
McCAFFERTY & McKEEVER,
:
COURT OF COMMON PLEAS OF
:
ALLEGHENY COUNTY, PA,
:
UNITED STATES ATTORNEY,
:
DEPARTMENT OF JUSTICE, and
:
SECRETARY OF THE INTERIOR
:
:
Defendants
:
CIVIL ACTION NO. 1:10-CV-2130
(Judge Conner)
ORDER
AND NOW, this 10th day of January, 2012, upon consideration of the motions
to dismiss (Docs. 16, 26, 29, 31) the above-captioned action, and for the reasons set
forth in the accompanying memorandum, it is hereby ORDERED that:
1.
The motions to dismiss (Docs. 16, 26, 29, 31) are GRANTED.
2.
The Clerk of Court is directed to CLOSE the case.
S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge
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