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Banks v. Roe

United States District Court, N.D. Ohio, Eastern Division

October 20, 2017

FREDERICK BANKS, Plaintiff,
v.
ADRIAN ROE, et al., Defendants.

          ORDER

          JOHN R. ADAMS UNITED STATES DISTRICT JUDGE.

         Pro se Plaintiff Frederick Banks filed this civil rights action, calling it a “Complaint for Writ of Mandamus” against three United States Attorneys, a United States District Court Judge, the Federal Bureau of Investigation (“FBI”), four FBI agents, and the Central Intelligence Agency (“CIA”). In the pleading, Banks challenges his on-going criminal prosecution in the Western District of Pennsylvania claiming the Defendants are taking frivolous legal positions to delay his case and force him into accepting a plea deal. He seeks monetary damages in the amount of $55, 000, 000.00.

         Banks also filed a Motion to Proceed In Forma Pauperis (“IFP”)(ECF No. 2). For the reasons that follow, the Motion to Proceed IFP is denied and this action is dismissed pursuant to 28 U.S.C. § 1915(g).

         I. 28 U.S.C. § 1915(g)

         Banks is no stranger to the federal courts. Since his incarceration, he has filed a multitude of civil rights actions against his jailers, various state and federal government agencies, and political figures, challenging the conditions of his confinement.

         Pursuant to 28 U.S.C. § 1915(a), a court may authorize the commencement of an action without prepayment of fees if an applicant has shown by affidavit that he satisfies the criterion of poverty. Prisoners, however, become responsible for paying the entire amount of their filing fees and costs from the moment they file the complaint. 28 U.S.C. § 1915(b). When an inmate seeks pauper status, the only issue for the Court to determine is whether the inmate pays the entire fee at the initiation of the proceeding or over a period of time under an installment plan. Id. Moreover, absent imminent danger, the benefit of the installment plan is denied to prisoners who have on three or more prior occasions, while incarcerated, brought an action that was dismissed on the grounds that it was frivolous, malicious or failed to state a claim upon which relief could be granted. 28 U.S.C. § 1915(g).

         In interpreting the “three strike” language of this section, the United States Court of Appeals for the Sixth Circuit has held that “where a complaint is dismissed in part without prejudice for failure to exhaust administrative remedies and in part with prejudice because ‘it is frivolous, malicious, or fails to state a claim upon which relief may be granted, ' the dismissal should be counted as a strike under 28 U.S.C. § 1915(g).” Pointer v. Wilkinson, 502 F.3d 369, 377 (6th Cir. 2007). Dismissals of actions entered prior to the effective date of the Prisoner Litigation Reform Act ("PLRA") also are counted toward the ‘three strikes referred to in 28 U.S.C. § 1915(g).” Wilson v. Yaklich, 148 F.3d 596, 604 (6th Cir. 1998). Additionally, a petition for writ of mandamus is a “civil action” within the meaning of 28 U.S.C. § 1915(g), and as such, is counted toward the three strikes where the prisoner's mandamus claims are essentially indistinguishable from those typically alleged in a civil rights action. See In re Kissi, 652 F.3d 39, 41-42 (D.C. Cir. 2011); In re Nagy, 89 F.3d 115, 117 (2d Cir. 1996); Green v. Nottingham, 90 F.3d 415, 417-18 (10th Cir. 1996) (“The IFP amendments specifically target litigation by prisoners. Allowing prisoners to continue filing actions as they had before enactment of the amendments, merely by framing pleadings as petitions for mandamus would allow a loophole Congress surely did not intend in its stated goal of ‘discourag[ing] frivolous and abusive prison lawsuits.'” (quoting H.R. Conf. Rep. No. 104-378, at 166 (1995))).

         As the language of 28 U.S.C. § 1915(g) indicates, the three strike provision will not apply if a “prisoner is under imminent danger of serious physical injury.” For purposes of interpreting the statute, the Court considers whether the litigant is in imminent danger at the time of the filing of the complaint. Vandiver v. Vasbinder, 416 F. App'x 560, 562 (6th Cir. 2011) (“[T]he plain language of § 1915(g) requires the imminent danger to be contemporaneous with the complaint's filing.”). Although the Sixth Circuit has not offered a precise definition of “imminent danger, ” it has suggested that the threat of serious physical injury “must be real and proximate.” Rittner v. Kinder, 290 F. App'x 796, 797 (6th Cir. 2008). Moreover, the imminent danger exception “is essentially a pleading requirement subject to the ordinary principles of notice pleading.” Vandiver, 416 F. App'x at 562; see Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007) (suggesting that courts should focus solely on the facts alleged in the complaint when deciding whether a prisoner faces imminent danger).

         III. Analysis

         Banks is a well-established, multi-district, frequent filer, who has, on well more than three prior occasions, “brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious or fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(g). In 2014, this Court conducted a brief search at the district court level, and found over 245 cases that Banks filed in the Northern District of Ohio, the District of Massachusetts, the Southern District of Mississippi, the District of Columbia, the Southern District of New York, the Western District of New York, the District of Colorado, the District of Arizona, the Southern District of Florida, the Middle District of Florida, the Eastern District of North Carolina, the Middle and Western Districts of Pennsylvania, the Eastern District of Missouri, the Eastern District of New Jersey, the Eastern District of Arkansas, the Western District of Oklahoma, the District of Utah, and the District of Alaska.[1] Of those cases, 56 were dismissed as frivolous pursuant to 28 U.S.C. § 1915(e), and 133 were dismissed pursuant to the three strikes provision of 28 U.S.C. § 1915(g). Furthermore, Banks attempted to circumvent dismissal under § 1915(g) by filing 29 civil rights actions as 28 U.S.C. § 2241 habeas petitions. Those 29 cases were dismissed as frivolous or as improper filings. He has filed many more cases since 2014, seven of which were filed in this Court, and 40 of which were filed in the Western District of Pennsylvania.

         Banks has not limited his litigious activities to civil rights and habeas actions. In the Western District of Pennsylvania, Banks filed 27 adversarial cases in Bankruptcy Court and then appealed the summary dismissal of those actions to the District Court. He filed 25 of those appeals on the same day, and filed the other 2 appeals one month later. All 27 cases were summarily dismissed as inappropriate filings in a bankruptcy action. In addition, Banks filed motions to appear ad hoc vice as counsel for the defendant in 2 criminal cases in Florida. In one of those cases, the Defendant indicated to the court that he did not solicit or desire Banks's representation.

         In fact, Banks's frivolous filings became so prolific that the Western District of Pennsylvania, the Middle District of Pennsylvania, and the Eastern District of Arkansas each took the extraordinary step of enjoining Banks from filing any additional actions without leave of court. The Western District of Pennsylvania indicated Banks had filed at least 304 civil actions between November of 2004 and July 2013. See Banks v. Unknown Named Number of U.S. Postal Inspectors, No. 2:13-cv-1198 (W.D. Pa. Oct. 1, 2013).

         Banks's captioning of his pleading in this action as a Petition for a Writ of Mandamus does not defeat the application of the PLRA's prohibition on proceeding IFP in this action. Banks asserts claims for retaliation and harassment by the CIA. He seeks monetary damages. These are allegations for a civil rights action, not a mandamus action. His pleading is without a doubt a ‘Complaint, ' no matter what he titles it. Black's Law Dictionary (9th ed. 2009) (defining Complaint as an “initial pleading that starts a civil action and states the basis for the court's jurisdiction, the basis for the Plaintiff's claim, and the demand for relief.”). See, e.g., Banks v. Warden, FPC Cannan, No. 11-668, 2011 WL 1542132, at *1 n. 2 (M.D. Pa. April 21, 2011) (“Although styled as a ‘Complaint for a Writ of Mandamus' it is clear that Plaintiff is initiating a civil action.”); Banks v. Sager, No. 11-741, 2011 WL 1542136, at *1 (M.D. Pa. April 21, 2011) (same); Banks v. Lappin, No. 08-152, 2008 WL 2874193 (D.D.C. July 25, 2008) (vacating grant of IFP to Plaintiff in a proceeding Plaintiff captioned as a mandamus, rejecting that characterization, stating: “[I]t would defeat the purpose of the PLRA if a prisoner could evade its requirements simply by dressing up an ordinary civil action as a petition for mandamus or prohibition or by joining it with a petition for habeas corpus.” (quoting In re Smith, 114 F.3d 1247, 1250 (D.C. Cir. 1997))).

         Because Banks has accumulated three strikes pursuant to 28 U.S.C. § 1915(g), he cannot proceed in forma pauperis in this action unless he has adequately pled that he was under “imminent danger of serious physical injury” at the time he filed his Complaint. To be considered imminent, the danger must be contemporaneous with the Complaint's filing. Vandiver, 416 F. App'x at 562 (finding that “[b]ecause § 1915(g) uses the present tense in setting forth the imminent danger exception, it is clear from the face of the statute that the danger must exist at the time the complaint is filed.”); see also Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998) (plaintiff sufficiently alleged imminent danger of serious physical injury where he claimed that he was placed near inmates on his enemy list and subjected to ongoing danger); Banos v. O'Guin, 144 F.3d 883, 885 (5th Cir. 1998) (past body cavity searches failed to establish imminent danger of serious physical injury); Luedtke v. Bertrand, 32 F.Supp.2d 1074, 1077 (E.D. Wis. 1999) (allegation of past physical injury is insufficient to meet statutory exception). Conclusory or vague allegations of some potential danger are insufficient to ...


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