BANKS v. UNITED STATES OF AMERICA et al

Filing 8

MEMORANDUM ORDER indicating that that Plaintiff's Motion for Leave to Proceed in forma pauperis 2 is denied in accordance with 28 U.S.C.§ 1915(g); that the Magistrate Judge's Report and Recommendation 6 dated 11/13/13, is adopted as the Opinion of this Court; that this action is dismissed without prejudice and that Plaintiff may reopen this action within sixty (60) days by paying the full $400.00 filing fee; that the Clerk of Court mark this case closed; that pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure, Petitioner has thirty (30) days to file a notice of appeal as provided by Rule 3 of the Federal Rules of Appellate Procedure. Signed by Judge Nora Barry Fischer on 12/2/13. (jg)

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

FREDERICK BANKS,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendants.

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Civil Action No. 13 – 1615
District Judge Nora Barry Fischer
Chief Magistrate Judge Lisa Pupo Lenihan

MEMORANDUM ORDER
Pending before the Court is a Report and Recommendation issued by Chief Magistrate
Judge Lisa Pupo Lenihan on November 13, 2013. (ECF No. 6.) Because Plaintiff has three
“strikes” and is barred from bringing a civil action in forma pauperis, the magistrate judge
recommended that Plaintiff’s Motion for Leave to Proceed in forma pauperis be denied in
accordance with 28 U.S.C. § 1915(g) and that this action be dismissed without prejudice to
Plaintiff’s right to reopen it by paying the full $400.00 filing fee. Plaintiff was served with the
Report and Recommendation and informed that he had until December 2, 2013, to file written
objections. Plaintiff filed objections on November 25, 2013.
As previously noted, the magistrate judge recommended that Plaintiff’s request for in
forma pauperis status be denied in accordance with 28 U.S.C. § 1915(g) because Plaintiff is a
prisoner who has had at least three prior civil actions dismissed that count as “strikes,” or, in
other words, that have been dismissed as frivolous, malicious, or for failure to state a claim upon
which relief may be granted. See Banks v. Commonwealth of Pennsylvania, Third Circuit No.
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10-1597 (Order dated April 8, 2010, and ultimately denying Plaintiff leave to appeal in forma
pauperis because he has three strikes: Banks v. Hayward, W.D. Pa. Civ. No. 06-cv-509; Banks v.
Hayward, W.D. Pa. Civ. No. 06-cv-1572; In Re: Banks, C.A. No. 06-1828)).

Therefore,

according to the statute, Plaintiff may not bring a civil action in forma paupers unless he is under
“imminent danger of serious physical injury.” See 28 U.S.C. § 1915(g). Plaintiff objects to this
recommendation on the basis that he is not a “prisoner” within the meaning of section 1915(g),
but rather a “holdover awaiting a probation violation hearing,” and, therefore, the statute is
inapplicable as to him. (ECF No. 7.) Plaintiff is mistaken. Contrary to his assertion, section
1915(g) specifically applies to those “accused of” violating the terms and conditions of their
probation or parole. See 28 U.S.C. § 1915(h). Therefore, Plaintiff’s objection is without merit.
Plaintiff also objects stating that he under imminent danger of serious physical injury
because the CIA Office of Science and Technology Behavioral Modification Unit is harassing
him using voice to skull technology, which is known to cause cancer and other forms of lethal
diseases. It appears as though Plaintiff is attempting to invoke the exception to section 1915(g)’s
three strike rule, which allows a prisoner to proceed in forma pauperis if he is under “imminent
danger of serious physical injury.” However, Plaintiff has made almost identical allegations in
other complaints he has brought before this Court, and, of which the Court has found to be
frivolous. See Banks v. Realty Counseling Company, W.D. Pa. Civ. No. 2:13-1025 (claiming
that defendants used “Remote Neural Monitoring” technology to harass and steal from him).
These allegations are clearly insufficient to overcome section 1915(g)’s three strike bar.
Therefore, after de novo review of the pleadings and documents in the case, together with
the Report and Recommendation, and the Objections thereto, the following order is entered.
AND NOW, this 2nd day of December, 2013,
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IT IS HEREBY ORDERED that Plaintiff’s Motion for Leave to Proceed in forma
pauperis (ECF No. 2) is DENIED in accordance with 28 U.S.C.§ 1915(g).
IT IS FURTHER ORDERED that the magistrate judge’s Report and Recommendation
(ECF No. 6) dated November 13, 2013, is ADOPTED as the Opinion of this Court.
IT IS FURTHER ORDERED that this action is DISMISSED without prejudice and
that Plaintiff may reopen this action within sixty (60) days by paying the full $400.00 filing fee.
IT IS FURTHER ORDERED that the Clerk of Court mark this case CLOSED.
AND IT IS FURTHER ORDERED that pursuant to Rule 4(a)(1) of the Federal Rules
of Appellate Procedure, Petitioner has thirty (30) days to file a notice of appeal as provided by
Rule 3 of the Federal Rules of Appellate Procedure.
By the Court:
s/Nora Barry Fischer __
Nora Barry Fischer
United States District Judge
cc:

Frederick Banks
#05711-068
NEOCC
2240 Hubbard Road
Youngstown, OH 44505
Via First Class Mail

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