BANKS v. UNITED STATES MARSHALS SERVICE et al

Filing 30

ORDER denying 29 Motion for Sanctions; denying as moot Motion for Hearing re 29 MOTION for Sanctions; denying MOTION to Join Defendants; denying MOTION for Hearing on the Issue of Whether the County Defendants Harper, Schenk and McSwiggin are Avoiding Service filed by FREDERICK BANKS. However, Plaintiff shall be allowed an additional fourteen (14) days, until February 2, 2016, to file proper proofs of service with the Court as to Defendants Harper, Schenk and McSwiggin. Failure to do so by the deadline will result in the District Judge ruling on the pending 28 Report and Recommendation without further notice. Signed by Magistrate Judge Lisa Pupo Lenihan on 1/19/16. (clh)

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

FREDERICK BANKS,
Plaintiff,
v.
UNITED STATES MARSHALS
SERVICE, et al.,
Defendants.

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Civil Action No. 15-127

District Judge David Stewart Cercone
Magistrate Judge Lisa Pupo Lenihan

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ECF No. 29

MEMORANDUM ORDER

On January 13, 2016, Plaintiff filed a Motion for Sanctions against County
Defendants, the FBI and the Allegheny County Police, and Objections to the Report and
Recommendation (ECF No. 28). See ECF No. 29.
With regard to his motion for sanctions, Plaintiff alleges that the Allegheny
County Police (" ACP") send and receive the mail at the Allegheny County Jail (" ACJ").

Id. at ,-r1. Plaintiff further alleges that he has learned that the FBI and ACP have been
obstructing and copying his legal and personal mail, and that several other prisoners
have had similar experiences, and had mail go missing. Id. Banks requests a hearing to
present testimony from these prisoners. Id. The Court finds that Plaintiff's motion for
sanctions is not properly before this Court, as it does not comply with Federal Rule of
Civil Procedure 11. More importantly, Plaintiff cannot obtain sanctions against nonparties to a lawsuit, which both the FBI and ACP are. Furthermore, Plaintiff has not
indicated whether he exhausted the grievance process at the ACJ with regard to the

complaints about his legal and personal mail. Therefore, Plaintiff's motion for
sanctions will be denied. Also, Plaintiff's request for an evidentiary hearing will be
denied as moot since the motion for sanctions is not properly before this Court.
As to the request for sanctions against the County Defendants, Plaintiff contends
that they are obstructing the mail to avoid continuing this action and did not respond to
the waivers of summons forms that he provided to them, and therefore, he maintains
that it is clear they are avoiding service. Plaintiff's argument is wholly conclusory and
lacking any factual basis, and therefore, fails to establish a basis for imposing sanctions.
First, Plaintiff does not identify which of the County Defendants allegedly
engaged in this activity. Moreover, the conduct Plaintiff describes- failure to respond
to waivers-is not sanctionable. Under Rule 4, defendants have the option (and indeed
are encouraged) to execute waivers of service of summons. See Fed. R. Civ. P. 4(d)(l).
If defendants refuse to do so, then personal service of the summons and complaint is

required, and absent good cause, they must pay plaintiff's expenses incurred in making
personal service. Fed.R. Civ. P. 4(d)(2). Thus, when executed waivers are not returned,
a plaintiff is responsible for arranging for personal service of the complaint and
summons on the defendants (by a person who is at least 18 years of age and not a party,

see Fed. R. Civ. P. 4(c)(2)), and once personally served, providing proof of service in the
form of an affidavit prepared by the person who personally served the defendants, see
Fed. R. Civ. P. 4(1). Banks has yet to provide the required affidavits for Defendants
Harper, Schenk, and McSwiggin, and he failed to file the executed waiver returned to
him from Defendant Fitzgerald. See Order to File Proper Proof of Service at 3 (ECF No.
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26), dated 12/4/15. Therefore, at this point, any culpability with regard to service rests
with Plaintiff, not the County Defendants. Accordingly, no basis exists for imposing
sanctions against Defendants Harper, Schenk and McSwiggin.
Plaintiff also requests a hearing to determine whether County Defendants
Harper, Schenk, and McSwiggin are avoiding service and obstructing this civil action
through others. ECF No. 29 at

~2.1

A hearing is not necessary at this juncture as

Plaintiff has failed to establish any basis for imposing sanctions against these
Defendants. Therefore, Plaintiff's motion for a hearing on this issue will be denied.
The Court also notes that although absent from the heading, the narrative section
of the Motion for Sanctions contains a motion to join an unknown number of named FBI
agents, the FBI, the Allegheny County Police, and an unknown number of named
inspectors in the ACJ mailroom. See ECF No. 29 at ~1. However, Plaintiff fails to
indicate whether he is proceeding under Rule 19 (required joinder) or 20 (permissive
joinder), or to present any supporting facts or argument for granting the motion. As
such, this motion borders on the frivolous.

If Plaintiff wishes to join any persons as

defendants to this action, he must file a separate motion setting forth facts and/ or legal
arguments to show that he has met the requirements for joinder under either Rule 19 or
20.

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In support of his request, Plaintiff states that he is upset because he still is not being
provided the requested religious materials or a religious volunteer to practice wicca,
and that the Court should issue a preliminary and permanent injunction against the
County Defendants to provide him with the same. ECF No. 29 at ~2. This argument
goes to the merits of Plaintiff's claims against some of the County Defendants and is
premature since he has yet to prove that service has been effectuated on Defendants
Harper, Schenk, and McSwiggin.
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Plaintiff categorizes the above arguments as "Objections" to the Report and
Recommendation (ECF No. 28). He further states in support of his "Objections" that he
sent an updated proof of service to the Court before 12/14/15 under the prison mailbox
rule, but the Court did not receive it, allegedly due to the obstruction of his mail by the
ACP and FBI. ECF No. 29 at ~1. Plaintiff also claims that the jail does not provide
photo copies. Id. Based solely on Plaintiff's assertion that he sent an updated proof of
service to the Court before the deadline, the Court will recommend to the District Judge
that he delay ruling on the pending Report and Recommendation (ECF No. 28) until
Plaintiff has been provided additional time to file proper proof of service. Plaintiff will
be granted an additional fourteen (14) days to obtain proper proof of service as detailed
in the Report and Recommendation-an affidavit sworn by the person serving process
for each of the Defendants Harper, Schenk, and McSwiggin- and file same with the
Court.

If Plaintiff files proper proof of service within the extended deadline, the

undersigned will vacate the Report and Recommendation filed at ECF No. 28.
However, if Plaintiff fails to file proper proof of service by the extended deadline, the
District Judge will rule on the pending Report and Recommendation (ECF No. 28).
Accordingly, the following Order is entered:
AND NOW, this

_jj_tt;:f January, 2016, IT IS HEREBY ORDERED that

Plaintiff's Motion for Sanctions (ECF No. 29) is DENIED. Plaintiff's request for a
hearing on the motion for sanctions is therefore DENIED AS MOOT.

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IT IS FURTHER ORDERED that Plaintiff's motion to join an unknown number

of named FBI agents, the FBI, the Allegheny County Police, and an unknown number of
named inspectors in the ACJ mailroom is DENIED.
IT IS FURTHER ORDERED that Plaintiff's motion for hearing to determine

whether County Defendants Harper, Schenk, and McSwiggin are avoiding service and
obstructing this civil action through others is DENIED. However, Plaintiff shall be
allowed an addition fourteen (14) days, until February 2, 2016, to file proper proofs of
service with the Court as to Defendants Harper, Schenk and McSwiggin. Failure to do
so by the deadline will result in the District Judge ruling on the pending Report and
Recommendation (ECF No. 28) without further notice.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(A), and Rule
72.C.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the
date of issuance of this Order to file an appeal to the District Judge, which includes the
basis for objection to this Order. Any party opposing the appeal shall have fourteen
(14) days from the date of service of the notice of appeal to respond thereto. Failure to
file a timely notice of appeal will constitute a waiver of any appellate rights.

United States Magistrate Judge
cc:

Frederick Banks
Allegheny County Jail
#120759
950 Second Avenue
Pittsburgh, PA 15219
Via U.S. First Class Mail
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All Counsel of Record
Via CM/ECF Electronic Mail

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