United States District Court, D. Hawaii
ORDER DISMISSING ACTION AND DENYING IN FORMA PAUPERIS
APPLICATION PURSUANT TO 28 U.S.C. § 1915(g)
Derrick K. Watson United States District Judge
the court is pro se Plaintiff Frederick Banks's pleading,
“Complaint and For a Writ of Mandamus, ” and
application to proceed in forma pauperis (“IFP”).
ECF Nos. 1, 2. Banks is confined at the Northeast Ohio
Correctional Center awaiting trial in the Western District of
Pennsylvania in United States v. Banks, Crim. No.
15-00168 (W.D. Pa.). Banks names his defense attorney, Adrian
Roe, Esq., U.S. District Judge Mark R. Hornak, U.S. Attorney
Soo Song, Assistant U.S. Attorney Robert Cessar, the Federal
Bureau of Investigation (“FBI”), FBI Special
Agents Sean Langford, Robert Werner, Scott Smith, and Mike
Pompeo, and the Central Intelligence Agency
(“CIA”) as Defendants.
complains that Defendants are delaying his criminal
proceedings for the purpose of keeping him unlawfully
confined by asserting that he is mentally ill. Banks seeks
declaratory relief against Judge Hornak and $55 million in
damages. Because this Court lacks jurisdiction over
Banks's claims and he may not proceed IFP pursuant to 28
U.S.C. § 1915(g), this action is DISMISSED and
Banks's IFP application is DENIED.
LACK OF JURISDICTION
extent Banks seeks a writ of mandamus to compel Defendants to
expeditiously prosecute his pending criminal proceedings,
this Court lacks jurisdiction to do so. While “district
courts shall have original jurisdiction of any action in the
nature of mandamus to compel an officer or employee of the
United States or any agency thereof to perform a duty owed to
the plaintiff, ” 28 U.S.C. § 1361, mandamus is not
a substitute for an appeal from a decision by a district
court. See Cheney v. U.S. Dist. Ct. for Dist. of
Columbia, 542 U.S. 367, 380-81 (2004). If Banks seeks an
order directing the Western District of Pennsylvania to try
him forthwith, he must pursue such relief with the Third
Circuit Court of Appeals. The Third Circuit has, in fact,
already informed Banks that a “writ of mandamus may be
used ‘to confine an inferior court to a lawful
exercise of its prescribed jurisdiction or to compel it to
exercise its authority when it is its duty to do
so.'” In re Banks, 670 F. App'x 54 (3d
Cir. 2016) (quoting In re Diet Drugs Prods. Liab.
Litig., 418 F.3d 372, 378 (3d Cir. 2005). In denying
Banks's Petition, the Third Circuit stated, “[t]o
the extent that Banks alleges that mandamus relief is
appropriate in light of the delay in his criminal case while
the question of his competency is being determined, we
disagree that our intervention is warranted.”
Id. (citing Madden v. Myers, 102 F.3d 74,
79 (3d Cir. 1996)). The Third Circuit found that the record
in Banks's criminal case, at least up to November 2016,
showed that “the District Judge and the parties remain
engaged in the matter, and the proceedings have remained
active in recent months.” Id. If Banks
believes those circumstances have since changed, he must
raise his challenge in the Third Circuit Court of Appeals.
District of Hawaii is not a court “superior” to
the Western District of Pennsylvania, cannot sit as a
quasi-appellate court over that District Court, and has no
jurisdiction or duty to compel the Western District of
Pennsylvania, its U.S. Attorney and Assistant U.S. Attorneys,
the CIA, the FBI, or their officers to take any action in
Banks's pending criminal action.
28 U.S.C. § 1915(g)
extent Banks seeks damages from Defendants for an alleged
violation of his civil rights, he is foreclosed from
proceeding IFP. A prisoner may not bring a civil action or
appeal if he has “on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action
or appeal in a court of the United States that was
dismissed” as frivolous, malicious, or for failure to
state a claim, unless he or she “is under imminent
danger of serious physical injury.” 28 U.S.C. §
1915(g). “[Section] 1915(g) should be used to deny a
prisoner's IFP status only when, after careful evaluation
of the order dismissing an action, and other relevant
information, the district court determines that the action
was dismissed because it was frivolous, malicious or failed
to state a claim.” Andrews v. King, 398 F.3d
1113, 1121 (9th Cir. 2005). The imminent danger exception
only “applies if the complaint makes a plausible
allegation that the prisoner faced ‘imminent danger of
serious physical injury' at the time of filing.”
Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir.
has accrued at least three strikes pursuant to 28 U.S.C.
§ 1915(g). As the Honorable Patricia A. Gaughan, U.S.
District Judge for the Northern District of Ohio, recently
Banks is a notorious frequent filer who has had over 205
cases dismissed as frivolous at the pleading stage in the
Northern District of Ohio, the District of Massachusetts, the
Southern District of Mississippi, the District of Columbia,
the Southern District of New York, the District of Colorado,
the District of Arizona, the Southern District of Florida,
the Middle District of Florida, the Eastern District of North
Carolina, the Middle and Western Districts of Pennsylvania,
the Eastern District of Missouri, the Eastern District of New
Jersey, the Eastern District of Arkansas, the Western
District of Oklahoma, the District of Utah, and the District
of Alaska. Of those cases, a third were dismissed as
frivolous pursuant to 28 U.S.C. § 1915(e), and two
thirds were dismissed pursuant to the three strikes provision
of 28 U.S.C.§ 1915(g). When courts began to dismiss his
civil actions under § 1915(g), Banks attempted to
circumvent the statute by filing habeas petitions under 28
U.S.C. § 2241 or petitions for writs of mandamus to
assert various civil rights violations.
Banks v. Valaluka, 2015 WL 7430077, at *1 (N.D. Ohio
Nov. 18, 2015).
appears that Banks titled his pleading as a “Complaint
for a Writ of Mandamus” in an effort to bypass the
three strikes bar to his proceeding IFP in this action.
Nothing within Banks's pleading suggests that he is in
imminent danger of serious physical injury and his IFP
application is DENIED.
this Court lacks jurisdiction over Banks's claims and he
may not proceed IFP pursuant to 28 U.S.C. § 1915(g),
this action is DISMISSED and Banks's IFP application is
DENIED. Any pending motions are DENIED as moot. The Clerk of
Court is DIRECTED to ...