Banks v. Song
| Decision Date | 25 October 2017 |
| Docket Number | Case No.: 17-CV-1460 JLS (WVG) |
| Parties | FREDERICK BANKS, Plaintiff, v. SONG, et al., Defendants. |
| Court | U.S. District Court — Southern District of California |
ORDER: (1) DENYING MOTION TO PROCEED IN FORMA PAUPERIS AND (2) DISMISSING ACTION WITHOUT PREJUDICE
Plaintiff Frederick Banks, currently housed at Northeast Ohio Correctional Center ("NEOCC") located in Youngstown, Ohio and proceeding pro se, has filed a Complaint requesting writs of quo warranto, prohibition, and mandamus. ("Compl.," ECF No. 1.) Plaintiff has not prepaid the civil filing fee required by 28 U.S.C. § 1914(a); instead, he has filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a). (IFP Mot., ECF No. 2.) The Court has screened Plaintiff's Complaint, pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b), and determined that Plaintiff fails to state a claim on which relief may be granted.
All parties instituting any civil action, suit or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $400. See 28 U.S.C. § 1914(a). An action may proceed despite the plaintiff's failure to prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the plaintiff is a prisoner and he is granted leave to proceed IFP, he nevertheless remains obligated to pay the entire fee in "increments," Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his action is ultimately dismissed, see 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). A prisoner is defined as "any person" who at the time of filing is "incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program." 28 U.S.C. § 1915(h); Taylor, 281 F.3d at 847.
Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act ("PLRA"), a prisoner seeking leave to proceed IFP must also submit a "certified copy of the trust fund account statement (or institutional equivalent) for . . . the six-month period immediately preceding the filing of the complaint." 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the Court assesses an initial payment of 20% of (a) the average monthly deposits in the account for the past six months, or (b) the average monthly balance in the account for the past six months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); Taylor, 281 F.3d at 850. The institution having custody of the prisoner then collects subsequent payments, assessed at 20% of the preceding month's income, in any month in which the prisoner's account exceeds $10, and forwards them to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).
The Court finds that Plaintiff's IFP Motion does not have a certified copy of his trust account statements, or an institutional equivalent, for the 6-month period immediately preceding the filing of his Complaint. See 28 U.S.C. § 1915(a)(2); Civ. L.R. 3.2. Section 1915(a)(2) clearly requires that prisoners "seeking to bring a civil action . . . without prepayment of fees . . . shall submit a certified copy of the trust fund account statement (orinstitutional equivalent) . . . for the 6-month period immediately preceding the filing of the complaint." 28 U.S.C. § 1915(a)(2) (emphasis added). Without Plaintiff's trust account statement, the Court is unable to assess the appropriate amount of the initial filing fee which is statutorily required to initiate the prosecution of this action. See 28 U.S.C. § 1915(b)(1). Therefore, the Court DENIES Plaintiff's IFP Motion.
The Court must screen every civil action brought pursuant to 28 U.S.C. § 1915(a) and dismiss any case it finds "frivolous or malicious," "fails to state a claim on which relief may be granted," or "seeks monetary relief against a defendant who is immune from relief." 28 U.S.C. § 1915(e)(2)(B); see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) ().
As amended by the Prison Litigation Reform Act ("PLRA"), 28 U.S.C. § 1915(e)(2) mandates that the court reviewing an action filed pursuant to the IFP provisions of § 1915 make and rule on its own motion to dismiss before directing the Marshal to effect service pursuant to Federal Rule of Civil Procedure 4(c)(3). See Fed. R. Civ. P. 4(c)(3); Navarette v. Pioneer Med. Ctr., No. 12-cv-0629-WQH (DHB), 2013 WL 139925, at *1 (S.D. Cal. Jan. 9, 2013).
All complaints must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007)). "[D]etermining whether a complaint states a plausible claim is context-specific, requiring the reviewing court to draw on its experience and common sense." Id. at 663-64 (citing Twombly, 550 U.S. at 556).
"When there are well-pleaded factual allegations, a court should assume their veracity, and then determine whether they plausibly give rise to an entitlement of relief." Iqbal, 556 U.S. at 679. "[W]hen determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); see also Andrews v. King, 393 F.3d 1113, 1121 (9th Cir. 2005); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) ().
"While factual allegations are accepted as true, legal conclusions are not." Hoagland v. Astrue, No. 1:12-cv-00973-SMS, 2012 WL 2521753, at *3 (E.D. Cal. June 28, 2012) (citing Iqbal, 556 U.S. at 678). Courts cannot accept legal conclusions set forth in a complaint if the plaintiff has not supported her contentions with facts. Id. (citing Iqbal, 556 U.S. at 679). Additionally, while the court "ha[s] an obligation where the petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of any doubt," Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir. 1985)), it may not "supply essential elements of claims that were not initially pled." Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
Plaintiff filed a Complaint seeking relief from events related to an ongoing federal criminal trial in the U.S. District Court for the Western District of Pennsylvania. (Compl. 1.) Plaintiff sued a variety of Defendants including but not limited to the federal judge presiding over his criminal trial, U.S. Attorneys in the Western District of Pennsylvania, several Federal Bureau of Investigation ("FBI") agents, the FBI itself, the Central Intelligence Agency, and its director Mike Pompeo. (Id.)
Plaintiff alleges that Judge Mark Hornak publicly defamed him and, along with the U.S. Attorneys prosecuting the case, caused him "to be put in a mental hospital." (Id.) While he was in the mental hospital, several FBI agents fabricated reports against Plaintifffor the purpose of keeping him confined in prison. Additionally, Plaintiff alleges that various Defendants conspired to delay his criminal case by asserting that Plaintiff was mentally ill. (Id.)
Plaintiff seeks damages of $855,000,000.00 plus costs, interest, and fees. (Id.) He also seeks declaratory relief against Judge Hornak to declare that the Judge has unlawfully delayed the case. He also requests that Defendant "public and private officials be removed from office and sanctioned." (Id.)
At the outset, the Court notes that Plaintiff's Complaint suffers from several defects, each of which might be grounds to deny his claim as malicious or frivolous. In particular, the Court lacks subject matter jurisdiction, the Complaint does not state facts sufficient to plausibly state a claim, and the requested writs cannot issue. The Court considers each in turn.
Federal district courts are courts of limited jurisdiction that "may not grant relief absent a constitutional or valid statutory grant of jurisdiction" and are "presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears." A-Z Int'l v. Phillips, 323 F.3d 1141, 1145 (9th Cir. 2003) (internal quotations and citations omitted). The Court proceeds by examining its jurisdiction over the following Defendants: United States' agencies, the federal judge, federal prosecutors, and then all remaining defendants.
"[T]he doctrine of sovereign immunity ... 'is an important limitation on the subject matter jurisdiction of federal courts.'" Dunn & Black, P.S. v. United States, 492 F.3d 1084, 1087 (9th Cir. 2007) (quoting Vacek v. U.S. Postal Serv., 447 F.3d 1248, 1250 (9th Cir. 2006)). As a sovereign, the United States "is immune from suit unless it has expressly waived such immunity and consented to be sued." Id. at 1087-88 (quoting Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985)). Plaintiff bears the burden of showing that the United States has...
To continue reading
Request your trial