BANKS et al v. NEW YORK POLICE DEPARTMENT et al
Filing
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MEMORANDUM ORDER denying 2 Motion for Leave to Proceed In Forma Pauperis and dismissing complaint. Further ordered that if plaintiff wishes to pursue this civil action he must file a motion to reopen the case and submit the required certification statement or $400 filing fee. Further that Kenneth Posner may not join this lawsuit but must file a separate action setting forth his own claims with sufficient facts to show entitlement to relief requested. Further adopting 5 Report and Recommendation of Magistrate Judge Lenihan as the opinion of the Court. The Clerk shall mark this case CLOSED. Signed by Judge David S. Cercone on 3/19/15. (njt)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
FREDERICK BANKS, et al.,
Plaintiffs,
v.
)
2:15cv239
Electronic Filing
)
)
)
)
Judge David Stewart Cercone
Magistrate Judge Lisa Pupa Lenihan
)
)
NYPD, eta/.,
Defendants.
)
)
ECF Nos. 1, 2 & 5
)
)
)
MEMORANDUM ORDER
Plaintiff commenced this civil action on January 27, 2015, by filing with the Clerk
for the United States District Court for the Middle District of Georgia, a Motion for Leave
to Proceed in forma pauperis (ECF No. 2) on Form AO 240 (Rev. 7/10) Application to
Proceed in District Court Without Prepaying Fees or Costs.
On the same day, Mr.
Banks also submitted for filing an Indictment and Petition for a Writ of Mandamus
Complaint, docketed as a Motion for Writ of Mandamus, and construed by the Court as
"the Complaint" (ECF No. 1). Although Kenneth Posner is also listed as a Plaintiff, he
failed to pay the filing fee or motion for leave to proceed in forma pauperis. The case
was transferred to the this Court and referred to United States Magistrate Judge Lisa
Pupa Lenihan for pretrial proceedings in accordance with the Magistrate Judges Act, 28
U.S.C. §636(b)(1}, and Local Rules of Court 72.C and 72.D.
The Magistrate Judge's Report and Recommendation (ECF No. 5), filed on
February 26, 2015, recommended that the Motion for Leave to Proceed In Forma
1
Pauperis filed by Frederick Banks (ECF No. 2) be denied. It was also recommended
that the Indictment and Petition for a Writ of Mandamus Complaint, docketed as a
Motion for Writ of Mandamus and construed by the Court as the Complaint (ECF No. 1)
be dismissed.
It was further recommended that the Complaint also listing Kenneth
Posner as Plaintiff be dismissed for failure to pay the filing fee and for failure to motion
for leave to proceed in forma pauperis. Finally, it was recommended that the clerk mark
the case closed. Service of the Report and Recommendation was made via First Class
Mail on Frederick Banks at his address of record, P.O. Box 42303, Pittsburgh, PA
15203, and on Kenneth Posner at his address of record, P.O. Box 295, Pittsburgh, PA
15230. Plaintiffs were informed that in accordance with the Magistrate Judges Act, 28
U.S.C. § 636(b)(1 )(B) and (C), and Rule 72.0.2 of the Local Rules of Court, that they
had fourteen (14) days to file any objections. No objections have been filed.
Therefore, after a de novo review of the motions for leave to proceed in forma
pauperis and attachments thereto, together with the Report and Recommendation, the
following Order is entered:
AND NOW, this
~
Jj_ day of March, 2015,
IT IS HEREBY ORDERED that the Motion for Leave to Proceed In Forma
Pauperis filed by Plaintiff Frederick Banks (ECF No. 2) is DENIED, and the Complaint
(ECF No. 1) is DISMISSED. The Clerk of Court is directed to mark this case CLOSED.
IT IS FURTHER ORDERED that if Plaintiff Frederick Banks wishes to continue to
pursue this civil action, he must file a motion to reopen the case and submit either the
required certification statement or the $400 filing fee.
In the event that Mr. Banks
decides to proceed with this case by either submitting the required certification
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statement or paying the $400 filing fee, the Court strongly urges him to revise his
complaint to take into consideration the infirmities noted in the Magistrate Judge's
Report and Recommendation (ECF No. 5).
IT IS FURTHER ORDERED that Kenneth Posner may not join in the lawsuit filed
at Case No. 2: 15-cv-239 with Frederick Banks, but must file a separate civil action
setting forth his claims with sufficient facts to show entitlement to the relief he is
requesting.
IT IS FURTHER ORDERED that the Report and Recommendation (ECF No. 5)
of Magistrate Judge Lenihan, dated February 26, 2015, is adopted as the opinion of the
Court.
DAVID STEWART CERCONE
United States District Judge
cc:
Frederick Banks (address of record)
P.O. Box 42303
Pittsburgh, PA 15203
Frederick Banks (address reflected on Complaint)
P.O. Box 295
Pittsburgh, PA 15230
Via First Class Mail
Kenneth Posner (address of record)
P.O. Box 295
Pittsburgh, PA 15230
Via First Class Mail
Kenneth Posner (address reflected on Complaint)
47 Wayland Drive
Verona, NJ 07044-2330
Via First Class Mail
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