BANKS et al v. NEW YORK POLICE DEPARTMENT et al

Filing 8

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 7 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 3/31/15. (njt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
FREDERICK BANKS, et al.,
Plaintiffs,

v.

2: 15cv31 0
Electronic Mail
Judge David Stewart Cercone
Magistrate Judge Lisa Pupo Lenihan

NYPD, eta/.,
Defendants.

ECF Nos. 1, 2 & 7

MEMORANDUM ORDER
Plaintiff commenced this civil action on January 27, 2015 by filing with the Clerk for the
United States District Court for the Eastern District of Texas, a Motion for Leave to Proceed in
Forma Pauperis (ECF No. 2) on Form AO 240 (Rev. 7/1 0) 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 Pupo 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. 7), filed on March 9,
2015, recommended that the Motion for Leave to Proceed In Forma 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. Service was also made on the addresses reflected on the
Complaint. 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 Motion for Leave to Proceed in Forma Pauperis
and attachments thereto, together with the Report and Recommendation, the following Order
is entered:
AND NOW,

sf'

this~ 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 statement or paying the $400 filing

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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. 7).
IT IS FURTHER ORDERED that Kenneth Posner may not join in the lawsuit filed at
Case No. 2: 15-cv-31 0 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. 7) of
Magistrate Judge Lenihan, dated March 9, 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)
4 7 Wayland Drive
Verona, NJ 07044-2330
Via First Class Mail

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