United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NOS. 4
Y. PEARSON UNITED STATES DISTRICT JUDGE
removed pro se action was initially filed by
Plaintiff Frederick Banks in the Mahoning County Court of
Common Pleas. See ECF No. 1. Banks is an
inmate in the Northeast Ohio Correctional Center
(“NEOCC”) and a frequent, filer of frivolous
actions in federal and state courts.
August 9, 2017, Plaintiff initiated a habeas corpus
action in Pennsylvania's Allegheny County Court of Common
Pleas Family Division titled, Daniel K. Miller and
Frederick Banks, as Next Friend to Minor Child of Daniel K.
Miller v. Office of Children Youth and Families of Allegheny
County and the Honorable Judge Donald Walko, Case No. FD
17-008895 (the “Pennsylvania state action”).
See ECF Nos. 1-1; 5-1. Plaintiff filed the state
action as “Next Friend to [the] Minor Child of Daniel
K. Miller” and sought reinstatement of the parental
rights of Mr. Miller. ECF No. 1-1. In dismissing the
Pennsylvania state action, the (4:17CV2460)
Law Judge (“ALJ”) found that Plaintiff lacked
standing to bring the action; had previously been adjudicated
a frivolous and vexatious filer of “Next Friend”
petitions by the United States District Court for the Western
District of Pennsylvania; and, engaged in the unauthorized
practice of law. See ECF No. 5-1 at PageID#: 55 56.
the ALJ's findings and dismissal of the Pennsylvania
state action, Plaintiff's present complaint (ECF No. 1-1)
is premised on allegations that Defendants Sergeant B.
Cuevas, Corrections Officers D. DeJohn, Jim Giles, and L.
Kordic, Chief Executive Officer of NEOCC, Damon Hininger, the
NEOCC, and CoreCivic, Inc. (collectively
“Defendants”), violated his: (1) constitutional
rights to due process and access to the courts, and (2)
committed negligence by failing to arrange for his appearance
at a October 12, 2017 hearing in the Pennsylvania state
action. ECF No. 1-1. Plaintiff seeks monetary
removal, Defendants filed a motion to dismiss pursuant to
Fed.R.Civ.P. 12(b)(6). ECF No. 4. Plaintiff responded,
see ECF Nos. 6 and 7, and Defendants replied,
ECF No. 8. Plaintiff also filed a Motion for Rule 11
Sanctions and Motion to Order Defendants to Provide Postage
and Envelopes to Make Legal Filings, on the basis that he
only has .04 cents in his inmate account. ECF No. 9.
reasons stated below, Defendants' Motion to Dismiss (ECF
No. 4) is granted and Plaintiff's Motion (ECF No. 9) is
denied. The case is dismissed.
Standard of Review
complaint is subject to dismissal under Fed.R.Civ.P. 12(b)(6)
if it fails to state claim on which relief can be granted. In
deciding a motion to dismiss, the court presumes the
factual allegations are true and draws all reasonable
inferences in the non-moving party's favor. Total
Benefits Planning Agency, Inc. v. Anthem Blue Cross and Blue
Shield, 552 F.3d 430, 434 (6th Cir. 2008). In order to
survive a motion to dismiss, “the complaint must
present ‘enough facts to state claim to relief that is
plausible on its face.'” Id. (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544
pro se pleadings are liberally construed and held to
less stringent standards than pleadings drafted by lawyers,
see Haines v. Kerner, 404 U.S. 519, 520 (1972),
“the lenient treatment generally accorded to pro
se litigants has limits.” Pilgrim v.
Littlefield, 92 F.3d 413, 416 (6th Cir. 1996) (citing
Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991)).
Even a pro se complaint must meet basic pleading
requirements, and to survive a motion to dismiss must set
forth sufficient facts to state a claim to relief that is
plausible on its face. See Barnett v. Luttrell, 414
Fed.Appx. 784, 786 (6th Cir. Mar. 10, 2011) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
constitutional right of access to the courts does not extend
to any legal action a prisoner wishes to pursue. Lewis v.
Casey,518 U.S. 343, 355 (1996). Rather, a
prisoner's constitutional “right of access to the
courts is limited to direct criminal appeals, habeas
corpus applications, and civil rights claims challenging
the conditions of [his] confinement.” Courtemanche
v. Gregels,79 Fed.Appx. 115, 117 (6th Cir. Oct. 23,
2003) (citing Lewis, 518 U.S. at 355).
“Impairment of any other litigating capacity is simply