Banks v. Sager et al

Filing 5

ORDER - It is hereby ORDERED that: 1. Pltf's motion to proceed IFP 2 is DENIED.; 2. Pltf's complaint 1 is DISMISSED w/out prejudice pursuant to 28 USC 1915(g).; 2. Clrk of Ct directed to CLOSE case.; 4 Any appeal from this order is DEEMED frivolous & not in good faith. (See order for complete details.) Signed by Honorable Christopher C. Conner on 04/21/11. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

FREDERICK BANKS,
Plaintiff
v.
S. SAGER, et al.,
Defendants

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CIVIL ACTION NO. 1:11-CV-0741
(Judge Conner)

ORDER
AND NOW, this 21st day of April, 2011, upon preliminary consideration of
plaintiff’s Bivens1 civil rights action2 pursuant to 28 U.S.C. § 1331, in which he
alleges that named defendants mishandled two boxes of his personal property
during and after transport from one facility to another, were deliberately indifferent

Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403
U.S. 388 (1971). Bivens stands for the proposition that “a citizen suffering a
compensable injury to a constitutionally protected interest could invoke the general
federal-question jurisdiction of the district courses to obtain an award of monetary
damages against the responsible federal official.” Butz v. Economou, 438 U.S. 478,
504 (1978).
1

Although identified as a “complaint for a writ of mandamus” it is clear that
plaintiff is initiating a civil action. 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 Prison Litigation Reform Act (“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 PLRA applies. In re Steele,
251 F. App'x at 773.
2

to his medical needs, engaged in a conspiracy and violated various federal
regulations, and it appearing that he seeks to proceed in forma pauperis (Doc. 2), 28
U.S.C. § 1915, and it further appearing that the “three strikes” provision of the
Prison Litigation Reform Act of 1996 (“PLRA”), codified at 28 U.S.C. § 1915,
prohibits him from proceeding in forma pauperis as he has had three prior actions
or appeals dismissed as frivolous, malicious, or for failing to state a viable claim3,

This court has previously taken judicial notice of the following civil rights
actions filed by plaintiff 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.)
3

The following comprehensive recitation was set forth in a report and
recommendation of United States Magistrate Judge Amy Reynolds Hay, which was
adopted by the Honorable Gary L. Lancaster, United States District Court for the
Western District of Pennsylvania:
Since February 3, 2005, Plaintiff has filed or participated as a party
plaintiff or intervenor in approximately 45 civil actions in the federal
District Courts. Since January 20, 2005, Plaintiff has filed or participated
in roughly 31 bankruptcy cases. Since March 9, 2005, Plaintiff has filed
or participated in approximately sixty cases in the federal Courts of
Appeals. As a consequence of his litigation activities, Plaintiff has
accumulated many more than three strikes. See, e.g., Banks v. U.S.
Marshal, 274 F. App’x. 631 (10th Cir. 2008) (assessing four strikes); Banks
v. Vio Software, 275 F. App’x. 800 (10th Cir. 2008)(assessing two
strikes)(available on PACER); Banks v. PNC Bank, No. C06-1109JLR,
2007 WL 2363064, at *1 n. 2 (W.D. Wash. Aug.14, 2007) (counting three
strikes against Plaintiff based upon two suits filed in the Western District
and one suit filed in the Middle District of Pennsylvania); See also Banks
v. Williams, No. 5:07-CV-226, 2008 WL 544946, (S.D. Miss. Feb. 21,
2008)(denying Plaintiff IFP status because he has at least three strikes).
2

and it further appearing that there is no indiction that plaintiff “is under imminent
serious physical injury,” 28 U.S.C. § 1915(g) (setting forth the three strikes rule
which provides that an inmate who has three prior actions or appeals dismissed as
frivolous, malicious, or for failing to state a viable claim may not proceed in forma
pauperis “unless the prisoner is under imminent danger of serious physical
injury”); see also Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir. 2001) (en
banc), it is hereby ORDERED that:
1.

Plaintiff’s motion to proceed in forma pauperis (Doc. 2) is DENIED.

2.

Plaintiff’s complaint (Doc. 1) is DISMISSED without prejudice,
pursuant to 28 U.S.C. § 1915(g).

3.

The Clerk of Court is directed to CLOSE this case.

4.

Any appeal from this order is DEEMED frivolous and not in good
faith. See 28 U.S.C. § 1915(a)(3).

S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge

Given his litigiousness, it is not surprising that Plaintiff sometimes files
duplicative or repetitious lawsuits.
Banks v. County of Allegheny, 568 F. Supp. 2d 579, 586 n.1 (W.D. Pa. 2008).