Banks v. Director, Central Intelligence Agency 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 18 USC 1915(g).; 3. Clrk of Ct directed to CLOSE case.; 4. Re: all future civil actions exc ept petitions for writ of h/c in which pltf seeks to proceed IFP w/out full prepymt of fees & costs... pltf shall attach to motion a stmt certifying... (see specifics delineatd 1, 2 & 3 in Para 4).; 5. If pltf fails to attach this cert the complaint will be stricken w/out prejudice by order of Court.; 6. If it is determined that false cert has been made plt may be held in contempt of ct & Ct may imposed approp sanctions &/or punishment after notice & an opportunity to be heard on matter.; 7. In event pltf pays full filing fee & seeks to proceed IFP the cert req'mt does not apply.; 8. Any appeal from this order DEEMED frivolous & not in good faith. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 1/15/14. (ki)

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

FREDERICK BANKS,

:
:
Plaintiff
:
:
v.
:
:
DIRECTOR, CENTRAL
:
INTELLIGENCE AGENCY, et al., :
:
Defendants :

CIVIL ACTION NO. 1:13-CV-3083
(Chief Judge Conner)

ORDER
AND NOW, this 15th day of January, 2014, upon preliminary consideration of
plaintiff’s Bivens1 complaint2, in which he alleges that the named defendants owe
him certain duties pursuant to the “bad man” provision of the Sioux Treaty of Fort

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 styled as a “complaint” and “complaint for a writ of mandamus” it
is clear that plaintiff is initiating a civil action. (Doc. 1, at 1.) The Third Circuit
Court of Appeals 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

Laramie3 and have violated his constitutional rights by subjecting him to “voice to
skull” technology (Doc. 1, at 2), inter alia, and it appearing that he seeks to proceed
in forma pauperis (Doc. 2), 28 U.S.C. § 1915, and it 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 claim4, 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

The Sioux Treaty of Fort Laramie, entered into April 29, 1868, ended armed
conflict between bands of the Lakota 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.
3

Judicial notice has been taken 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.)
4

2

serious physical injury”); see also Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d
Cir. 2001) (en banc), and that as a direct result of the repetitive nature and volume of
civil actions filed by plaintiff5, the Western District of Pennsylvania determined that

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:
5

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). 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).
Thereafter, in October, 2013, Chief United States Magistrate Judge Lisa Pupo
Lenihan noted in a Report and Recommendation, which was subsequently adopted
by United States District Court Judge Nora Barry Fischer, that between November,
2004, and July, 2013, Banks filed approximately 304 civil actions, 108 of which were
filed in the courts of the Third Circuit. The 108 cases were broken down as follows:
Of the 108 cases filed by Banks . . . 62 involved complaints for alleged
violations of various civil and/or constitutional rights, petitions for writ of
mandamus, and Qui Tam/False Claims Act claims. Of these 62 cases,
more than half were dismissed or closed prior to service of the complaint:
Fourteen (14) of Plaintiff’s complaints were dismissed under 28 U.S.C. §
3

plaintiff abused the in forma pauperis privilege and, therefore, restricted his ability
to file future civil actions6, except habeas corpus petitions, without a statement
certifying that: “(1) that the claims he wishes to present are new claims never before
raised and disposed of on the merits by any federal court, (2) that he believes the
facts alleged in his complaint to be true, and (3) that he knows of no reason to
believe his claims are foreclosed by controlling law,” Banks v. Unknown Named
Number of U.S. Postal Inspectors, et al., No. 2:13-cv-1198, 2013 WL 5945786, at *1
(W.D. Pa. Nov. 6, 2013), and because plaintiff has filed, since August 2013, in this

1915(e)(2)(B) as frivolous, malicious, or for failing to state a claim; in
fifteen (15) cases, Banks’ attempts to proceed in forma pauperis were
barred by the “three strike” provision of 28 U.S.C. 1915(g), because Banks
filed three or more of lawsuits while he was incarcerated which were
dismissed as frivolous, malicious or for failure to state a claim; five (5)
cases were administratively closed for failing to file the required IFP
documents; and two (2) cases were dismissed under 28 U.S.C. §
1915A(b)(1). Another seventeen (17) cases were transferred to other
district courts outside the Third Circuit.
Banks v. Unknown Named Number of U.S. Postal Inspectors, et al., No. 2:13-cv-1198,
2013 WL 5945786, at *4 (W.D. Pa. Nov. 6, 2013).
The All Writs Act (“Act”) states that “[t]he Supreme Court ... may issue all
writs necessary or appropriate in aid of their respective jurisdictions and agreeable
to the usages and principles of law.” 28 U.S.C. 1651(a). It is well established that
the Act “authorizes district courts to, among other things, restrict the access to
federal courts of parties who repeatedly file frivolous litigation.” In relying on
Abdul-Akbar v. Watson, 901 F.2d 329, 332 (3d Cir. 1990), the district court concluded
that “Banks’ history and continued filing of complaints that are repetitive, frivolous,
malicious, and/or fail to state a claim upon which relief may be granted, thus
warrant some restraint on his ability to proceed in this District.” Banks v.
Unknown Named Number of U.S. Postal Inspectors, et al., No. 2:13-cv-1198, 2013
WL 5945786, at *4 (W.D. Pa. Nov. 6, 2013).
6

4

district alone, thirty-five civil actions (including this one)7, this Court concludes that
a restraint on plaintiff’s ability to proceed in this district is also warranted, it is
hereby ORDERED that:
1.

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

As to all future civil actions, except petitions for writ of habeas corpus,
in which plaintiff seeks to proceed in forma pauperis without full
prepayment of fees and costs, in addition to the other requirements for
requesting in forma pauperis status, plaintiff shall attach to his motion
for leave to proceed in forma pauperis a statement certifying: (1) that
the claims he wishes to present are new claims never before raised and
disposed of on the merits by any federal court, (2) that he believes the
facts alleged in his complaint to be true, and (3) that he knows of no
reason to believe his claims are foreclosed by controlling law.8

5.

If plaintiff fails to attach this certification the complaint will be
stricken without prejudice by order of Court.

6.

If it is determined that a false certification has been made, plaintiff
may be held in contempt of court and the Court may impose
appropriate sanctions and/or punishment, after notice and an
opportunity to be heard on the matter.

7.

In the event plaintiff pays the full filing fee, and seeks to proceed in
forma pauperis, the certification requirement does not apply.

Ten cases were transferred to other districts, one was dismissed as frivolous
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), and twenty-three were dismissed pursuant
to 28 U.S.C. § 1915(g).
7

Compliance with the certification requirement does not usurp this Court’s
authority to dismiss pursuant to 28 U.S.C. §1915(g) any future civil action.
8

5

8.

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, Chief Judge
United States District Court
Middle District of Pennsylvania