United States District Court, N.D. Ohio, Eastern Division
R. ADAMS UNITED STATES DISTRICT JUDGE.
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.
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).
28 U.S.C. § 1915(g)
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.
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).
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))).
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).
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. 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.
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
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).
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))).
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