Banks v. U.S. Marshals Serv.
| Decision Date | 16 February 2016 |
| Docket Number | Civil Action No. 15-127 |
| Parties | FREDERICK BANKS, Plaintiff, v. UNITED STATES MARSHALS SERVICE, et al., Defendants. |
| Court | U.S. District Court — Western District of Pennsylvania |
It is respectfully recommended that the Motion to Dismiss (ECF No. 10) filed by the United States of America; the United States Marshals Service; Director, United States Marshal; David Hickton, U.S. Attorney; Chief Judge Joy Flowers Conti; Judge Nora Barry Fischer; Eric Holder, Attorney General; USA Inspector General; Ken Salazar, U.S Department of the Interior; Director/Commissioner of Indian Affairs; and the Bureau of Indian Affairs be granted, and the Complaint be dismissed with prejudice as to the Federal Defendants.
On or about November 17, 2014, Plaintiff Frederick Banks ("Banks"), proceeding pro se, filed this action in the Court of Common Pleas of Allegheny County, Pennsylvania, at Case No. GD-14-021024. Plaintiff describes himself as an American Indian and member of the Lakota Sioux Tribe and a Tribal Official of the United Tribes of America. Compl., Intro. (ECF No. 1-2 at 3). In addition, Plaintiff states he is a second degree wicca, warlock high priest, and witchcraft practitioner. Id.
Names as defendants in this action are the United States of America; the United States Marshals Service; Director, United States Marshal; David Hickton, U.S. Attorney; Chief Judge Joy Flowers Conti; Judge Nora Barry Fischer; Eric Holder, Attorney General; USA Inspector General; Ken Salazar, U.S Department of the Interior; Director/Commissioner of Indian Affairs; and the Bureau of Indian Affairs (collectively the "Federal Defendants").1 In addition to the Federal Defendants, the Complaint names as defendants Orlando Harper, Warden, Allegheny County Jail; Rich Fitzgerald, County Executive; County of Allegheny; Case Manager Schenk; Unit Manager 40, Cyndy McSwiggin, Supervisor; and the Allegheny County Jail (collectively, the "County Defendants"). Plaintiff is suing all Defendants in their official and individually capacities.
Plaintiff's claims against the Federal Defendants and allegations in support are summarized as follows.
On September 30, 2014, Plaintiff alleges that he was transferred to the Allegheny County Jail ("ACJ") by Defendant, Director of the United States Marshal Service ("USMS"). Compl. at ¶1. Plaintiff further alleges that he was held beyond his prison sentence expiration date of October 20, 2014 in violation of the Fifth and Eighth Amendments.2 Id. Plaintiff further alleges that "Defendants acted with deliberate indifference because the warden, USMS and case manager failed to correct this." Id.
In addition, Plaintiff contends that "Defendants acted as 'bad men' in violation of Article I of the Sioux Treaty of Fort Laramie, 15 Stat. 635 (1868)[,]" and seeks to recover $10,000 on this claim against the United States of America under the Little Tucker Act, 28 U.S.C. § 1346. Compl. at ¶12. Plaintiff also asks this Court to issue an order authorizing the Commissioner/Director of Indian Affairs to "'cause the offenders to be arrested and punished according to the laws of the United States and to reimburse Plaintiff for the loss suffered." Id.
The remaining allegations do not implicate the Federal Defendants, but rather, involve complaints about the conditions of his confinement during his relatively brief incarceration at ACJ in October of 2014. Essentially, Plaintiff contends that while incarcerated at ACJ, (1) Case Manager Schenk denied him access to the courts bypreventing him from placing legal calls and by failing to have his legal and personal mail from NEOCC forwarded to ACJ; (2) the cashier failed to provide him with an indigent pack containing a pen and six first class envelopes as required by the inmate handbook; (3) the prison chaplain failed to procure various wiccan tools and a wiccan bible, and "Defendants" failed to provide a "volunteer wiccan chaplain", all of which prevented him from practicing his religion; and (4) that personal hygiene products/services were either inadequate (one unsanitized electric razor was shared by 120 inmates) or unavailable (a haircut and a new working shower).3 Compl. at ¶¶3-8. As a result of this conduct, Plaintiff contends that the County Defendants violated his rights under the First, Fifth, Eighth, and Fourteenth Amendment, as well as the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. §§ 2000bb-2000bb-4, and the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. §§ 2000cc-2000cc-5. Compl. at ¶¶ 2-3, 5-9.
As to all Defendants, Plaintiff seeks monetary relief in the amount of $10 million for each violation, totaling $60 million, as well as punitive damages in the total amount of $180 million, plus costs, interest and fees. Compl. at ¶11. Plaintiff also requests declaratory relief ending the alleged violations. Id.
On January 30, 2015, the United States of America removed this action to federal court pursuant to 28 U.S.C. §§ 1442 and 1446. After several procedural matters were resolved, the Court entered an order on July 9, 2015 directing the Federal Defendants tofile a response to the Complaint. See ECF No. 8. On July 16, 2015, Federal Defendants filed a Motion to Dismiss pursuant to Rules 12(b)(1), 12(b)(5), and 12(b)(6) of the Federal Rules of Civil Procedure (ECF No. 10). In response, Plaintiff filed a timely Reply in Opposition to the Motion to Dismiss (ECF No. 15). Thus, the motion to dismiss is ripe for disposition.
The Federal Defendants have moved to dismiss the Complaint against them pursuant to Rules 12(b)(1), 12(b)(5), and 12(b)(6) of the Federal Rules of Civil Procedure. Pursuant to Rule 8(a)(2) of the Federal Rules of Civil Procedure, pleadings and, in particular, pro se complaints, are to be liberally construed. Abdul-Akbar v. McKelvie, 239 F.3d 307, 322 (3d Cir. 2001)); Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003) (citing Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (). Indeed, a pro se complaint "'however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'" Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)); Haines v. Kerner, 404 U.S. 519, 520 (1972).
In a § 1983 or Bivens4 action, the court must liberally construe the pro se litigant's pleadings and "apply the applicable law, irrespective of whether a pro se litigant hasmentioned it by name." Higgins, 293 F.3d at 688 (quoting Holley v. Dep't of Veteran Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)). See also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) . However, there are limits to the court's procedural flexibility—"pro se litigants still must allege sufficient facts in their complaints to support a claim. . . they cannot flout procedural rules—they must abide by the same rules that apply to all other litigants." Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citations omitted).
A motion to dismiss under Rule 12(b)(1) may be treated as either a facial or factual challenge to the court's subject matter jurisdiction. Patsakis v. Greek Orthodox Archdiocese of America, 339 F. Supp.2d 689, 692 (W.D. Pa. 2004) (citing Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)); Gould Electronics, Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). In the case at bar, Defendants are asserting a facial challenge, as evidenced by their briefs in support of their Motions to Dismiss. In a facial attack, the court must consider the allegations of the complaint as true, in the light most favorable to the plaintiff, similar to a motion to dismiss under Rule 12(b)(6). Mortensen, 549 F.2d at 891; In re Kaiser Group Int'l, Inc., 399 F.3d 558, 561 (3d Cir. 2005).
Federal Rule of Civil Procedure 12(b)(5) provides that a defendant may ask the court to dismiss a complaint when a plaintiff has failed to properly serve the defendant with the summons and complaint. "[T]he party asserting the validity of service bears the burden of proof on that issue." Grand Entm't Group, Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 488 (3d Cir. 1993) (citation omitted).
A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of a complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). A complaint must be dismissed for failure to state a claim if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) (); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Twombly at 556). The Supreme Court further explained:
The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to...
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