Banks v. Roe
| Decision Date | 18 January 2018 |
| Docket Number | No. CV 17-00736 WJ/KRS,CV 17-00736 WJ/KRS |
| Court | U.S. District Court — District of New Mexico |
| Parties | FREDERICK BANKS, Plaintiff, v. ADRIAN ROE, ESQUIRE, JUDGE MARK J. HORNAK, ROBERT CESSAR, AUSA, SOO SONG US ATTORNEY, UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA, S.A. LANGFORD, S.A. ROBERT WERNER, S.A. IN CHARGE SCOTT SMITH, MIKE POMPEO, FEDERAL BUREAU OF INVESTIGATION, CENTRAL INTELLIGENCE AGENCY, SIS LT. PEREZ, SIS TECH LLOYD, Defendants. |
THIS MATTER is before the Court sua sponte under 28 U.S.C. § 1915A(b) and Fed. R. Civ. P. 12(b)(2) and (6) on the Complaint and for a Writ of Mandamus filed by Plaintiff Frederick Banks on July 12, 2017 (Doc. 1) ("Original Complaint") and the Complaint for a Writ of Quo Warranto, Prohibition and Mandamus filed by Banks on July 14, 2017 (Doc. 2) ("Amended Complaint"). The Court will dismiss this case on the grounds that the Court lacks jurisdiction over the Defendants and claims, and the Original Complaint and Amended Complaint are frivolous, malicious, fail to state a claim for relief, and seek monetary relief from Defendants that are immune from such relief.
Plaintiff Frederick Banks is a prisoner incarcerated at the Northeast Ohio Correctional Facility in Youngstown, Ohio. (Doc. 1 at 1). Banks appears to have multiple criminal convictions. See, e.g., United States v. Banks, 582 Fed. App'x 86 (3rd Cir. 2014); United States v. Vampire Nation, 451 F.3d 189 (3rd Cir. 2006). The allegations of the Original Complaint and Amended Complaint are largely unintelligible, but appear to assert a federal civil rights claim for damages and a state-law claim for defamation against the Federal Bureau of Investigation and several of its Special Agents, the Central Intelligence Agency, several United States Attorneys and Assistant United States Attorneys, a private defense attorney, a United States District Judge and the United States District Court for the Western District of Pennsylvania. Banks seeks damages in an amount not less than $55 million. (Doc. 1 at 1). The Amended Complaint adds two correctional officers at FMC Butner in North Carolina as Defendants. (Doc. 2 at 1). The Amended Complaint claims $855 million, as well as requesting removal of Defendants from public office and discharge of Plaintiff from custody. (Doc. 2 at 1). Both the Original Complaint and Amended Complaint indicate they are "[r]elated to USA v. Banks, 15CR168 (WDPA)." (Doc. 1 at 1; Doc. 2 at 1). Neither the Original Complaint nor the Amended Complaint allege any conduct by any identified individual occurring in or connected to New Mexico.
Plaintiff Banks did not pay the filing fee for this civil action. However, on the back of the Original Complaint and the Amended Complaint, in small print, Banks has requested leave to proceed without prepaying fees or costs under 28 U.S.C. § 1915. (Doc. 1 at 2; Doc. 2 at 2). The Court's research indicates that Banks has filed in excess of 205 cases in federal court, at least one-third of which have been dismissed under the "three strikes" provision of 28 U.S.C. § 1915(g). See Frederick Banks v. Honorable Richard W. Roberts, 2016 WL 3963000 (E.D. Wis. 2016); Frederick Banks v. Mark Hornak, et al., 2017 WL 2788587 (4th Cir. 2017). See, also, Banks v. VIO Software, 2007 WL 2261691 (D. Colo. 2007); Banks v. New York Police Dept., 2015 WL 1789559 (W.D. Okla. 2015); Banks v. Jackson, 2015 WL 2406067 (D. Utah 2015).Banks may not proceed in forma pauperis in this or any other federal court unless he is imminent danger of serious physical injury. 28 U.S.C. § 1915(g). Neither of Bank's applications to proceed allege that he is imminent danger of serious physical injury and his applications will be denied.
Plaintiff Banks is proceeding pro se. The Court has the discretion to dismiss a pro se complaint sua sponte under 28 U.S.C. § 1915A(b) if the Court determines that the complaint is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. The Court determines that Bank's Complaint and Amended Complaint must be dismissed for each and every one of the § 1915A(b) reasons.
The Prison Litigation Reform Act (PLRA), Section 1915A provides:
28 U.S.C. § 1915A(a) and (b). The PLRA clearly authorizes dismissal of civil lawsuits against governmental entities, officers, or employees upon screening regardless of the prisoner litigant's fee status. Plunk v. Cravens, 234 F.3d 1128, 1129 (10th Cir. 2000).
The Court may also dismiss a complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6) and for lack of personal jurisdiction under Fed. R. Civ. P. 12(b)(2). Under Fed. R. Civ. P. 12(b)(6) the Court must accept all well-pled factual allegations, but not conclusory, unsupported allegations, and may not consider matters outside the pleading. Bell Atlantic Corp.v. Twombly, 550 U.S. 544, 555 (2007); Dunn v. White, 880 F.2d 1188, 1190 (10th Cir. 1989). The court may dismiss a complaint under Rule 12(b)(6) for failure to state a claim if "it is 'patently obvious' that the plaintiff could not prevail on the facts alleged." Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991) (quoting McKinney v. Oklahoma Dep't of Human Services, 925 F.2d 363, 365 (10th Cir. 1991)). A plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. A claim should be dismissed where it is legally or factually insufficient to state a plausible claim for relief. Twombly, 550 U.S. at 570.
In reviewing a pro se complaint, the Court liberally construes the factual allegations. See Northington v. Jackson, 973 F.2d 1518, 1520-21 (10th Cir. 1992). However, a pro se plaintiff's pleadings are judged by the same legal standards that apply to all litigants and a pro se plaintiff must abide by the applicable rules of court. Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994). The Court is not obligated to craft legal theories for the plaintiff or to supply factual allegations to support the plaintiff's claims. Nor may the Court assume the role of advocate for the pro se litigant. Hall v. Bellmon, 935 F.2d at 1110.
In deciding whether to dismiss the complaint, in whole or in part, the Court is to consider whether to allow plaintiff an opportunity to amend the complaint. Pro se plaintiffs should be given a reasonable opportunity to remedy defects in their pleadings. Reynoldson v. Shillinger, 907 F.2d 124, 126 (10th Cir. 1990). The opportunity to amend should be granted unless amendment would be futile. Hall v. Bellmon, 935 F.2d at 1109. An amendment is futile if the amended claims would also be subject to immediate dismissal under the rule 12(b)(6) standards. Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004).
The Due Process Clause permits the exercise of personal jurisdiction over a nonresidentdefendant "so long as there exist minimum contacts between the defendant and the forum State." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980). The "minimum contacts" standard may be met, consistent with due process, "if the defendant has purposefully directed his activities at residents of the forum, and the litigation results from alleged injuries that arise out of or relate to those activities." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985). A district court's exercise of personal jurisdiction over defendant must also be reasonable in light of the circumstances surrounding the case. See id. at 477-78.
Section 1915A contains no express authorization for a dismissal for lack of personal jurisdiction. See 28 U.S.C. § 1915A. However, the Tenth Circuit Court of Appeals has previously held that a district court may, in certain circumstances, properly dismiss an action based on an affirmative defense where the defense clearly appears on the fact of the complaint. See Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir.2006); Fratus v. Deland, 49 F.3d 673, 674-75 (10th Cir.1995). The lack of jurisdiction is clearly apparent on the face of the Original Complaint and the Amended Complaint.
The Amended Complaint asserts that "[t]his Court has jurisdiction because the statements were read by people in this district and caused harm to plaintiff." (Doc. 2 at 1). Banks does not identify who made any statements, what statements were made, who read the statements, or in which district the statements were purportedly read. As previously noted, the Original Complaint and Amended Complaint do not allege that any Defendant resides in New Mexico, that any conduct by any Defendant occurred in New Mexico, or that Banks' allegations are even connected to New Mexico. The Original and Amended Complaints do not establish any, much less minimum, contacts with the State of New Mexico. Burger King Corp. v. Rudzewicz, 471 U.S. at 472. It is clear from the face of the Original and Amended Complaints that the Courtlacks personal jurisdiction over all of the Defendants and claims, and the Court will dismiss the claims against Defendants under Fed. R. Civ. P....
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