Banks et al v. Cessan et al
Filing
10
ORDER DISMISSING pltf's complaint 1 w/out prejudice pursuant to 28 USC 1915(g), directing Clrk of Ct to CLOSE case, ENJOINING pltf from proceeding IFP for one year in this ct as to this matter & all future civil acdtions, except petitions for writ of h/c & cases over which ct arguably has subject matter jurisdiction implicating imminent danger exception to 3 strikes rule, directing Clrk of Ct to REJECT any future civil action or filing rec'd from pltf except petitions for writ of h/c , etc. (see Para 4)... that is not accompanied by requisite statutory filing fee & to NOTIFY pltf of the rejection, & admonishing pltf that failure to comply w/ the injunction issued herein may result in contempt proceedings or imposition of appropriate sanction. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 6/11/14. (ki)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
FREDERICK BANKS,
:
:
Plaintiff
:
:
v.
:
:
AWA ROBERT CESSAN, et al.,
:
:
Defendants :
CIVIL ACTION NO. 1:14-CV-0955
(Chief Judge Conner)
ORDER
AND NOW, this 11th day of June, 2014, upon preliminary consideration of
plaintiff’s Bivens1 complaint,2 in which plaintiff alleges that the named defendants
entered into a civil conspiracy to prevent him from litigating a mortgage foreclosure
matter in Pennsylvania, (Doc. 1 at 2), and it appearing that he seeks to proceed in
forma pauperis (Docs. 2-3), pursuant to 28 U.S.C. § 1915, and it further appearing
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
2
Although styled as a “complaint for a writ of mandamus,” it is clear that
plaintiff is attempting to initiate a civil action. (See 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, 773 (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, 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.
that the “three strikes” provision of the Prison Litigation Reform Act of 1996
(“PLRA”), codified at 28 U.S.C. § 1915, prohibits plaintiff from proceeding in forma
pauperis because he has had at least three prior civil actions dismissed as frivolous,
malicious, or for failure to state a claim for which relief may be granted,3 and that
there is no indiction that plaintiff “is under imminent serious physical injury,” 28
U.S.C. § 1915(g) (setting forth 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), and that as a direct result of the repetitive
nature and sheer volume of civil actions plaintiff has filed,4 both the district court
3
The court previously has taken judicial notice of the following actions filed
by plaintiff that were dismissed as legally frivolous: Banks v. Pittsburgh Tribune
Rev., No. 2:07-CV-00336 (W.D. Pa. May 4, 2007) (Lancaster, J.); Banks v. Dove, No.
1:06-CV-02289 (M.D. Pa. Jan. 16, 2007) (Conner, C.J.); Banks v. Hayward, No.
2:06-CV-01572 (W.D. Pa. Jan. 10, 2007) (Lancaster, J.); and Banks v. Hayward, No.
2:06-CV-00509 (W.D.Pa. May 30, 2006) (Lancaster, J.). See Banks v. Crockett, No.
1:07-CV-1019, 2007 WL 1655504, at * 2 (M.D. Pa. June 7, 2007) (Conner, CJ.).
4
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.
2
for the Western District of Pennsylvania and this court have determined that
plaintiff has abused the in forma pauperis privilege and, therefore, have restricted
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 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. § 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).
3
his ability to file future civil actions,5 except habeas corpus petitions, without 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,” Banks v. Director, Central
Intelligence Agency, et al., No. 1:13-cv-3083, Doc. 5 (M.D. Pa. Jan. 15, 2014); see
Banks, 2013 WL 5945786, at *1 (similar Western District restrictions), and that it is
evident that the restrictions thus far placed on plaintiff have not deterred his filing
of frivolous matters or prevented him from filing civil actions without regard to
merits, jurisdiction, or venue, and that it is obvious that plaintiff is using this court
as a springboard for any and all of his litigation activities,6 and that given the
5
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.” Mallon v. Padova,
806 F. Supp. 1189, 1192 (E.D. Pa. 1992) (citing Abdul-Akbar, 901 F.2d at 332); Banks,
2013 WL 5945786, at *4 (same). In relying on Abdul-Akbar, the district court for the
Western District of Pennsylvania 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, 2013 WL 5945786, at *4.
6
Between August 2013 and January 15, 2014, in this district alone, plaintiff
filed thirty-five civil actions. 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 the three strikes rule. Since the court issued the order
restricting plaintiff’s ability to proceed in forma pauperis on January 15, 2014, he
has filed fifteen new cases, including the instant action. In eight of those cases, he
alleged that a person other than himself was entrapped by confidential informants
and that fabricated evidence was introduced during his criminal trial. Because
4
burden that plaintiff is placing on the court’s resources, it is apparent that a
stronger sanction is both warranted and necessary,7 and further that, in light of
these considerations, the court issued a show cause order (Doc. 8) on May 28, 2014,
noticing plaintiff of the court’s intent to enjoin him, for a period of one year, from
proceeding in forma pauperis in this action and any future matter filed in this
none of the trials he sought to challenge took place in this district, the cases were
promptly transferred to the appropriate venue. Another case was dismissed as
frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii), and another for lack of
jurisdiction. Finally, four cases were stricken for failure to comply with the court’s
January 15, 2014 order requiring that each new filing be accompanied by the abovereferenced certification. In addition, plaintiff filed motions for reconsideration and
appeals in most of these cases, resulting in further strain on judicial resources at
this level of review and the appellate level.
Behavior of this character cannot be tolerated. The judicial authority to
curb it is ample. See, e.g., In re Anderson, 511 U.S. 364 (1994) (per curiam) (denying
request to proceed in forma pauperis and directing clerk not to accept any further
petitions for extraordinary writs when petitioner had filed 22 separate, frivolous
petitions with the Court in a period of three years); In re Sassower, 510 U.S. 4 (1993)
(per curiam) (same, involving 21 frivolous petitions); Sassower v. Am. Bar Assoc., 33
F.3d 733 (7th Cir. 1994) (per curiam) (affirming injunction and directing the district
court to require pro se plaintiff to post bond in any case surviving the injunction’s
screening requirements); see also Perry v. Pogemiller, 16 F.3d 138, 140 (7th Cir.
1993) (affirming district court imposition of sanctions pursuant to Federal Rule of
Civil Procedure 37(b), and imposing additional sanction pursuant to Federal Rule
of Appellate Procedure 38, when plaintiff “persist[ed] in a hopeless cause long
after it should have been clear to him, as a reasonable person, that his position was
groundless”); Martin–Trigona v. Sassower, 9 F.3d 226, 228 (2d Cir. 1993) (approving
district court requirement that prolific filer plaintiff obtain leave of court before any
paper is filed); Gelabert v. Lynaugh, 894 F.2d 746, 748 (5th Cir. 1990) (per curiam)
(imposing financial sanction against “recreational litigator” and prohibiting clerk
from filing any additional documents until sanction is satisfied). However, because
“[a]ccess to the courts is a fundamental tenet of our judicial system,” In re Oliver,
682 F.2d 443, 446 (3d Cir. 1982), the Supreme Court cautions that any sanction
imposed by a federal court for the abuse of its processes must be tailored to the
abuse. In re Anderson, 511 U.S. at 365; In re Sassower, 510 U.S. at 5.
7
5
district, except petitions for writs of habeas corpus and cases over which the court
arguably has subject matter jurisdiction in matters implicating the imminent
danger exception to the three strikes rule,8 and affording plaintiff an opportunity to
show cause why said injunction should not issue, and the court observing that
plaintiff has exercised this opportunity, but that his responsive filing (Doc. 9) fails
to set forth a meaningful or compelling opposition to the proposed injunction, and
thus concluding that said injunction is appropriate and necessary, and serves the
dual interests of promoting justice and conserving judicial resources, and will allow
the court to devote its limited resources to the claims of those who have not abused
its process, In re Sassower, 510 U.S. at 5-6, and that the same is narrowly tailored to
discourage and ultimately prevent the future filing of frivolous matters in this court,
see id., it is hereby ORDERED that:
1.
Plaintiff’s complaint (Doc. 1) is DISMISSED without prejudice
pursuant to 28 U.S.C. § 1915(g).
2.
The Clerk of Court is directed to CLOSE this case.
8
The Third Circuit has explained that “[i]f the circumstances warrant the
imposition of an injunction, the District Court must give notice to the litigant to
show cause why the proposed injunction relief should not issue.” Brow v. Farrelly,
994 F.3d 1027, 1038 (3d Cir. 1993) (citation omitted, emphasis added). See also In re
Oliver, 682 F.2d at 446.
6
3.
Plaintiff is hereby ENJOINED for a period of one (1) year from
proceeding in forma pauperis in this court as to this matter and all
future civil actions, except petitions for writ of habeas corpus and
cases over which the court arguably has subject matter jurisdiction
implicating the imminent danger exception to the three strikes rule.
4.
The Clerk of Court is directed to REJECT any future civil action or
filing received from plaintiff, except petitions for writ of habeas corpus
and cases over which the federal court arguably has subject matter
jurisdiction implicating the imminent danger exception to the three
strikes rule that is not accompanied by the requisite statutory filing
fee, and to NOTIFY plaintiff of the rejection.
5.
Plaintiff is admonished that failure to comply with the injunction
issued herein may result in contempt proceedings or the imposition
of appropriate sanctions.
/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania
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