Banks v. Director, Office of Science and Technology Behavioral Modification Unit et al

Filing 5

REPORT AND RECOMMENDATION - Accordingly, plaintiffs motion to proceed in forma pauperis is GRANTED (Doc. 2), but IT IS HEREBY RECOMMENDED that the Court dismiss this action pursuant to 28 U.S.C. § 1915(e)(2)(B)(I) and (ii). Objections to R&R due by 1/24/2014. Signed by Magistrate Judge Martin C. Carlson on January 6, 2014. (kjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
FREDERICK BANKS,

:
:
Plaintiff
:
:
v.
:
:
DIRECTOR, OFFICE OF
:
SCIENCE AND TECHNOLOGY, :
BEHAVIORAL MODIFICATION :
UNIT, et al.,
:
:
Defendants
:

Civil No. 1:14-CV-5
(Chief Judge Conner)
(Magistrate Judge Carlson)

REPORT AND RECOMMENDATION
I.

Statement of Facts and of the Case

Albert Einstein once stated that doing the same thing over and over again and
expecting different results is the highest form of folly. We are reminded of Einstein’s
wisdom as we consider the instant civil lawsuit filed by Frederick Banks. In his
current complaint, Banks identifies hundreds of named and unnamed federal officials
and agencies as defendants, alleging that these officials and agencies have engaged
in “Voice to skull” electronic harassment of Banks, beaming harassing messages into
Bank’s skull. (Doc. 1) As relief, Banks seeks $800,000,000 in damages, and a writ
of mandamus forbidding future use of “Voice to skull” technology by the United
States government. (Id.) This claim is virtually identical to complaints filed by

Banks in August of 2013 and October 2013, and dismissed by this Court as frivolous
in September and December, 2013. Banks v. Unknown Federal Judges, 1:13-CV2095; Banks v. CIA, 1:13-2664. Therefore, we find that Banks is now engaging in
Einstein’s folly, doing the same thing over again and expecting a different result.
Along with this complaint, Banks has filed a motion seeking leave to proceed
in forma pauperis. (Doc. 2) Upon an initial screening of the complaint pursuant to
28 U.S.C. § 1915, we will GRANT plaintiff’s motion to proceed in forma pauperis,
but recommend that the Court DISMISS this complaint as frivolous and because it
fails to state a claim upon which relief can be granted pursuant to 28 U.S.C. §
1915(e)(2)(B)(I) and (ii).
II.

DISCUSSION

A.

Legal Standards Governing Sufficiency of Civil Complaints

This Court has an ongoing statutory obligation to conduct a preliminary review
of pro se complaints brought by plaintiffs given leave to proceed in forma pauperis.
See 28 U.S.C. § 1915(e)(2)(B)(ii). Specifically, the Court must assess whether a pro
se complaint fails to state a claim upon which relief may be granted, since Rule
12(b)(6) of the Federal Rules of Civil Procedure provides that a complaint should be
dismissed for “failure to state a claim upon which relief can be granted.” Fed. R. Civ.
P. 12(b)(6). In addition, when reviewing in forma pauperis complaints, 28 U.S.C. §
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1915(e)(2)(B)(ii) enjoins us to “dismiss the complaint at any time if the court
determines that . . . the action . . . fails to state a claim upon which relief may be
granted.”
With respect to this benchmark standard for legal sufficiency of a complaint,
the United States Court of Appeals for the Third Circuit has aptly noted the evolving
standards governing pleading practice in federal court, stating that:
Standards of pleading have been in the forefront of jurisprudence in
recent years. Beginning with the Supreme Court's opinion in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) continuing with our
opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir.
2008)]and culminating recently with the Supreme Court's decision in
Ashcroft v. Iqbal –U.S.–, 129 S.Ct. 1937 (2009) pleading standards
have seemingly shifted from simple notice pleading to a more
heightened form of pleading, requiring a plaintiff to plead more than the
possibility of relief to survive a motion to dismiss.
Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).
In considering whether a complaint fails to state a claim upon which relief may
be granted, the court must accept as true all allegations in the complaint and all
reasonable inferences that can be drawn from the complaint are to be construed in the
light most favorable to the plaintiff. Jordan v. Fox Rothschild, O’Brien & Frankel,
Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). However, a court “need not credit a
complaint’s bald assertions or legal conclusions when deciding a motion to dismiss.”
Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally
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a court need not “assume that a ... plaintiff can prove facts that the ... plaintiff has not
alleged.” Associated Gen. Contractors of Cal. v. California State Council of
Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007), in order to state a valid cause of action a
plaintiff must provide some factual grounds for relief which “requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause of
actions will not do.” Id. at 555. “Factual allegations must be enough to raise a right
to relief above the speculative level.” Id.
In keeping with the principles of Twombly, the Supreme Court has underscored
that a trial court must assess whether a complaint states facts upon which relief can
be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal, 556 U.S. 662
(2009), the Supreme Court held that, when considering a motion to dismiss, a court
should “begin by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.” Id. at 679. According to the
Supreme Court, “[t]hreadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.” Id. at 678. Rather, in conducting a
review of the adequacy of complaint, the Supreme Court has advised trial courts that
they must:

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[B]egin by identifying pleadings that because they are no more than
conclusions are not entitled to the assumption of truth. While legal
conclusions can provide the framework of a complaint, they must be
supported by factual allegations. When there are well-pleaded factual
allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.
Id. at 679.
Thus, following Twombly and Iqbal a well-pleaded complaint must contain
more than mere legal labels and conclusions. Rather, a complaint must recite factual
allegations sufficient to raise the plaintiff’s claimed right to relief beyond the level
of mere speculation. As the United States Court of Appeals for the Third Circuit has
stated:
[A]fter Iqbal, when presented with a motion to dismiss for failure to
state a claim, district courts should conduct a two-part analysis. First,
the factual and legal elements of a claim should be separated. The
District Court must accept all of the complaint's well-pleaded facts as
true, but may disregard any legal conclusions. Second, a District Court
must then determine whether the facts alleged in the complaint are
sufficient to show that the plaintiff has a “plausible claim for relief.”
In other words, a complaint must do more than allege the plaintiff's
entitlement to relief. A complaint has to “show” such an entitlement
with its facts.
Fowler, 578 F.3d at 210-11.
In practice, consideration of the legal sufficiency of a complaint entails a
three-step analysis: “First, the court must ‘tak[e] note of the elements a plaintiff must
plead to state a claim.’ Iqbal, 129 S.Ct. at 1947. Second, the court should identify
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allegations that, ‘because they are no more than conclusions, are not entitled to the
assumption of truth.’ Id. at 1950. Finally, ‘where there are well-pleaded factual
allegations, a court should assume their veracity and then determine whether they
plausibly give rise to an entitlement for relief.’ Id.” Santiago v. Warminster Tp., 629
F.3d 121, 130 (3d Cir. 2010).
In addition to these pleading rules, a civil complaint must comply with the
requirements of Rule 8(a) of the Federal Rule of Civil Procedure which defines what
a complaint should say and provides that:
(a) A pleading that states a claim for relief must contain (1) a short and
plain statement of the grounds for the court’s jurisdiction, unless the
court already has jurisdiction and the claim needs no new jurisdictional
support; (2) a short and plain statement of the claim showing that the
pleader is entitled to relief; and (3) a demand for the relief sought, which
may include relief in the alternative or different types of relief.
Thus, a well-pleaded complaint must contain more than mere legal labels and
conclusions. Rather, a pro se plaintiff’s complaint must recite factual allegations
which are sufficient to raise the plaintiff’s claimed right to relief beyond the level of
mere speculation, set forth in a “short and plain” statement of a cause of action.
B.

Banks’ Complaint Fails to State a Claim Upon Which Relief Can Be
Granted

In the complaint, Banks repeats a number of wide-ranging, seemingly
unconnected, largely speculative, and frequently incredible allegations involving
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“Voice to skull” electronic surveillance and harassment, events and incidents that are
alleged to have occurred to him, and claims which have been rejected by this Court
within the past 4 months. In its current form Banks’ complaint is flawed in several
other fundamental respects.
First, the complaint is subject to dismissal because it presents a cause of action
that “relies on ‘fantastic or delusional scenarios.’ Neitzke v. Williams, 490 U.S. 319,
328, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).” DeGrazia v. F.B.I., 316 F. App'x 172,
173 (3d Cir. 2009). We are obliged to “sua sponte dismiss a complaint for lack of
subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) when
the allegations within the complaint ‘are so attenuated and unsubstantial as to be
absolutely devoid of merit, ... wholly insubstantial, ... obviously frivolous, ... plainly
unsubstantial, ... or no longer open to discussion.’ Hagans v. Lavine, 415 U.S. 528,
536-37, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974) (internal citations and quotation marks
omitted). There is no question that [these] claims meet this standard, as they rely on
fantastic scenarios lacking any arguable factual basis.” DeGrazia v. F.B.I., 316 F.
App'x 172, 173 (3d Cir. 2009).
In addition, dismissal of this complaint is warranted because the complaint
plainly fails to comply with Rule 8's basic injunction that “A pleading that states a
claim for relief must contain . . . a short and plain statement of the claim showing that
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the pleader is entitled to relief.” It is well-settled that: “[t]he Federal Rules of Civil
Procedure require that a complaint contain ‘a short and plain statement of the claim
showing that the pleader is entitled to relief,’ Fed.R.Civ.P. 8(a)(2), and that each
averment be ‘concise, and direct,’ Fed.R.Civ.P. 8(e)(1).” Scibelli v. Lebanon County,
219 F.App’x 221, 222 (3d Cir. 2007). Thus, when a complaint is “illegible or
incomprehensible”, id., or when a complaint “is not only of an unwieldy length, but
it is also largely unintelligible”, Stephanatos v. Cohen, 236 F.App’x 785, 787 (3d
Cir. 2007), an order dismissing a complaint under Rule 8 is clearly appropriate. See,
e.g., Mincy v. Klem, 303 F.App’x 106 (3d Cir. 2008); Rhett v. New Jersey State
Superior Court, 260 F.App’x 513 (3d Cir. 2008); Stephanatos v. Cohen. supra;
Scibelli v. Lebanon County, supra; Bennett-Nelson v. La. Bd. of Regents, 431 F.3d
448, 450 n. 1 (5th Cir.2005). Furthermore, dismissal under Rule 8 is proper when a
complaint “left the defendants having to guess what of the many things discussed
constituted [a cause of action];” Binsack v. Lackawanna County Prison, 438 F. App’x
158 (3d Cir. 2011), or when the complaint is so “rambling and unclear” as to defy
response. Tillio v.Spiess, No. 11-1276, 2011 WL 3346787 (Aug. 4, 2011). Finally,
a complaint may be dismissed under Rule 8 when the pleading is simply illegible and
cannot be understood. See, e.g., Moss v. United States, 329 F. App'x 335 (3d Cir.
2009)(dismissing illegible complaint); Radin v. Jersey City Medical Center, 375 F.
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App’x 205 (3d Cir. 2010); Earnest v. Ling, 140 F. App’x 431 (3d Cir.
2005)(dismissing complaint where “complaint fails to clearly identify which parties
[the plaintiff] seeks to sue”); Oneal v. U.S. Fed. Prob., CIV.A. 05-5509 (MLC), 2006
WL 758301 (D.N.J. Mar. 22, 2006)(dismissing complaint consisting of approximately
50 pages of mostly-illegible handwriting); Gearhart v. City of Philadelphia Police,
CIV.A.06-0130, 2006 WL 446071 (E.D. Pa. Feb. 21, 2006) (dismissing illegible
complaint).
Here, Banks’ complaint is largely incomprehensible. The complaint, hardly
“contain[s] ‘a short and plain statement of the claim showing that the pleader is
entitled to relief,’ Fed. R. Civ. P. 8(a)(2), and [fails to meet Rule 8's requirement] that
each averment be ‘concise, and direct,’ Fed. R. Civ. P. 8(e)(1).” Scibelli v. Lebanon
County, 219 F. App’x 221, 222 (3d Cir. 2007). Further, the factual averments set
forth in the complaint consist of an apparent, but often incomprehensible, catalogue
of events that are presented without any context, content, coherence or continuity,
making it virtually impossible to ascertain the legal and factual significance of these
allegations. Thus, we are “left . . . having to guess what of the many things discussed
constituted [a cause of action].” Binsack v. Lackawanna County Prison, 438 F.
App’x 158 (3d Cir. 2011). In such instances, Rule 8 compels the dismissal of this

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complaint since, by any standard, this complaint is not a “short and plain” statement
of a cause of action containing averments that are “concise, and direct.”1
In addition, Banks’ latest complaint appears to attempt to re-litigate a matter
which has previously been conclusively resolved by the federal courts within the past
4 months. In conducting an initial screening assessment of this aspect of the
complaint: “ We have the authority to apply the doctrine of claim preclusion or res
judicata sua sponte. Gleash v. Yuswak, 308 F.3d 758, 760 (7th Cir.2002); Ezekoye
v. Ocwen Federal Bank FSB, 179 F.App'x 111, 114 (3d Cir.2006) (non precedential).
[and] can . . . invoke res judicata ‘if it is so plain from the language of the complaint
and other documents in the district court's files that it renders the suit frivolous.’
Gleash, 308 F.3d at 760.” Guider v. Mauer, CIVIL 1:CV-09-1915, 2009 WL 4015568
(M.D. Pa. Nov. 19, 2009). In our view, upon a preliminary screening review of this,
Banks’ latest lawsuit, the res judicata, collateral estoppel and issue preclusion
doctrines apply and compel dismissal of any of the previously litigated claims that are
made by the plaintiff in this complaint. Collateral estoppel, res judicata and issue
preclusion are doctrines which play a vital role in litigation. It has long been
While such dismissals are often initially made without prejudice, in this
case where we find that the claims also “rely on fantastic scenarios lacking any
arguable factual basis,” DeGrazia v. F.B.I., 316 F. App'x 172, 173 (3d Cir. 2009),
we believe that dismissal of these allegations, with prejudice, would be
appropriate.
1

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recognized that “[t]he doctrine[] of . . . collateral estoppel, now . . termed . . . issue
preclusion, ‘shar[es] the common goals of judicial economy, predictability, and
freedom from harassment....’ Gregory v. Chehi, 843 F.2d 111, 116 (3d Cir.1988).
Generally speaking, the . . . doctrine of issue preclusion, ‘precludes the relitigation
of an issue that has been put in issue and directly determined adversely to the party
against whom the estoppel is asserted.’ Melikian v. Corradetti, 791 F.2d 274, 277 (3d
Cir.1986).” Electro-Miniatures Corp. v. Wendon Co., Inc. 889 F.2d 41, 44 (3d.
Cir.1989)(citations omitted).
The parameters of this doctrine, which precludes relitigation of certain issues,
have been defined by the United States Court of Appeals for the Third Circuit in the
following terms:
Issue preclusion, or collateral estoppel, prevents parties from relitigating
an issue that has already been actually litigated. “The prerequisites for
the application of issue preclusion are satisfied when: ‘(1) the issue
sought to be precluded [is] the same as that involved in the prior action;
(2) that issue [was] actually litigated; (3) it [was] determined by a final
and valid judgment; and (4) the determination [was] essential to the
prior judgment.’ ” Burlington Northern Railroad Co. v. Hyundai Merch.
Marine Co., 63 F.3d 1227, 1231-32 (3d Cir.1995) (quoting In re
Graham, 973 F.2d 1089, 1097 (3d Cir.1992)); see also Parklane Hosiery
Co. v. Shore, 439 U.S. 322, 326, n. 5(1979). In its classic form,
collateral estoppel also required “mutuality”-i.e., that the parties on both
sides of the current proceeding be bound by the judgment in the prior
proceeding. Parklane Hosiery, 439 U.S. at 326-27. Under the modern
doctrine of non-mutual issue preclusion, however, a litigant may also be
estopped from advancing a position that he or she has presented and lost
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in a prior proceeding against a different adversary. See Blonder-Tongue
Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 324 (1971); Parklane
Hosiery, 439 U.S. at 329. For . . . non-mutual issue preclusion [] to
apply, the party to be precluded must have had a “full and fair”
opportunity to litigate the issue in the first action. See Parklane Hosiery,
439 U.S. at 328; Blonder-Tongue Labs., 402 U.S. at 331.
Peloro v. United States, 488 F.3d 163, 174-5 (3d Cir. 2007). Stated succinctly,
principles of collateral estoppel compel a later court to honor the an earlier decision
of a matter that was actually litigated. Dici v. Commonwealth of Pa., 91 F.3d 542 (3d
Cir. 1997). This doctrine, which involves an assessment of the overlap between
issues presented in separate lawsuits, raises essentially legal questions which are
often amenable to resolution by courts as a matter of law. See, e.g., Peloro v. United
States, supra; Jean Alexander Cosmetics, Inc. v. L'Oreal USA, Inc, supra; Witkowski
v. Welch, 173 F.3d 192, 198-205 (3d Cir. 1999); Burlington Northern Railroad Co.
v. Hyundai Merchant Marine Co., Ltd.,, 63 F.3d 1227, 1231-9 (3d Cir.
1995)(summary judgment, offensive issue preclusion).
Here, we find that, with respect to the claims made by Banks in the instant
complaint regarding “Voice to skull” electronic surveillance and harassment, the legal
requisites for issue preclusion are fully satisfied, since: “ ‘(1) the issue sought to be
precluded [is] the same as that involved in the prior action; (2) that issue [was]
actually litigated; (3) it [was] determined by a final and valid judgment; and (4) the

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determination [was] essential to the prior judgment.’ ” Burlington Northern Railroad
Co. v. Hyundai Merch. Marine Co., 63 F.3d 1227, 1231-32 (3d Cir.1995) (quoting
In re Graham, 973 F.2d 1089, 1097 (3d Cir.1992)); see also Parklane Hosiery Co. v.
Shore, 439 U.S. 322, 326, n. 5(1979). Therefore, these claims should be dismissed.
Thus, simply put, this complaint “rel[ies] on fantastic scenarios lacking any
arguable factual basis,” DeGrazia v. F.B.I., 316 F. App'x 172, 173 (3d Cir. 2009).
Because the shortcomings of the complaint are manifold and obvious, we recommend
that the district court dismiss this action as frivolous and for failure to state a claim
upon which relief can be granted. We recognize that in civil rights cases pro se
plaintiffs often should be afforded an opportunity to amend a complaint before the
complaint is dismissed in its entirety, see Fletcher-Hardee Corp. v. Pote Concrete
Contractors, 482 F.3d 247, 253 (3d Cir. 2007), unless granting further leave to amend
would be futile or result in undue delay. Alston v. Parker, 363 F.3d 229, 235 (3d Cir.
2004). In this case, however, the plaintiff has not articulated any civil rights cause
of action, has repeated allegations previously found to be frivolous, and in our
estimation the complaint itself demonstrates that plaintiff’s lawsuit is frivolous and
provides no basis upon which relief could be granted in federal court. Accordingly,
we will recommend that the action be dismissed with prejudice.

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III.

Recommendation

Accordingly, plaintiff’s motion to proceed in forma pauperis is GRANTED
(Doc. 2), but IT IS HEREBY RECOMMENDED that the Court dismiss this action
pursuant to 28 U.S.C. § 1915(e)(2)(B)(I) and (ii).
The plaintiff is further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings,
recommendations or report addressing a motion or matter described in
28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the
disposition of a prisoner case or a habeas corpus petition within fourteen
(14) days after being served with a copy thereof. Such party shall file
with the clerk of court, and serve on the magistrate judge and all parties,
written objections which shall specifically identify the portions of the
proposed findings, recommendations or report to which objection is
made and the basis for such objections. The briefing requirements set
forth in Local Rule 72.2 shall apply. A judge shall make a de novo
determination of those portions of the report or specified proposed
findings or recommendations to which objection is made and may
accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge. The judge, however,
need conduct a new hearing only in his or her discretion or where
required by law, and may consider the record developed before the
magistrate judge, making his or her own determination on the basis of
that record. The judge may also receive further evidence, recall
witnesses or recommit the matter to the magistrate judge with
instructions.
Submitted this 6th day of January, 2014.
S/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

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