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Banks v. Cuevas

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

April 25, 2018

FREDERICK BANKS, Plaintiff,
v.
SGT. CUEVAS, et al., Defendants.

          MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NOS. 4 AND 9]

          BENITA Y. PEARSON UNITED STATES DISTRICT JUDGE

         I. Background

         This 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.

         On 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)

         Administrative 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.

         Despite 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 damages. Id.

         Following 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.

         For the 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.

         II. Standard of Review

         A 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 (4:17CV2460)

         complaint's 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 (2007)).

         Although 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)).

         III. Analysis

         The 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 ...


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