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Banks v. Pivnichny

United States District Court, M.D. Alabama, Northern Division

June 2, 2015

FREDERICK BANKS, Plaintiff,
v.
TIMOTHY PIVNICHNY, et al., Defendants.

ORDER and RECOMMENDATION OF THE MAGISTRATE JUDGE

SUSAN RUSS WALKER, Cheif Magistrate Judge.

By order entered on June 1, 2015, the District Judge has referred this case to the undersigned for action or recommendation on all pretrial matters. (Doc. # 3). Plaintiff Frederick Banks, proceeding pro se, has filed a motion for leave to proceed in forma pauperis in this action (Doc. # 2). Upon consideration of the motion, it is

ORDERED that the motion is GRANTED.

However, upon review of the complaint, the court concludes that dismissal of plaintiff's claims pursuant to 28 U.S.C. § 1915(e)(2)(B) is appropriate.[1] Thus, it is further ORDERED that service of process is STAYED pending further order of the court.

Plaintiff seeks declaratory judgment and an award of monetary damages against a large number of federal officials (including judges), several federal agencies and entities, a number of individuals whose status is not identified, political figures, Booz Allen Hamilton, and a reporter for the Pittsburgh Post Gazette, claiming that the defendants violated his right to due process under the Fifth and Fourteenth Amendments, as well as the Sioux Treaty of Fort Laramie.[2] Plaintiff claims that "[i]n 2003 and 2004, " FBI Special Agent Timothy Pivnichny - while interviewing plaintiff's fiance, Meredith Bondi, pointed his loaded handgun at her to intimidate her and to elicit testimony from her against Banks. Plaintiff learned of Pivnichny's conduct when Bondi returned home after the interview, "shaking and terrified." Plaintiff alleges that defendant Cynthia Reed Eddy, Bondi's attorney, [3] was present during the interview but did not do anything about it or mention Pivnichny's conduct to anyone.

According to the plaintiff, Pivnichny also - in order to set up the plaintiff - "fixed [] or caused [] to be fixed" an Orbit II DVD/CD copier belonging to the plaintiff.[4] After plaintiff attempted to expose Pivnichny, Booz Allen Hamilton, on behalf of the CIA, bombarded plaintiff with a wireless signal "to electronically harass him." Plaintiff relayed this information to Torsten Ove of the Pittsburg Post Gazette but, instead of investigating plaintiff's allegations, Ove allegedly wrote six articles "lambasting" the plaintiff. The remaining defendants are sued because, although plaintiff "spent over 10 years writing them and explaining to them what had happened[, ]" they failed to investigate his allegations; some of the defendants "recommended mental health treatment for Banks when they knew or had reason to know he needed no such treatment." (Doc. # 1).[5]

The court lacks jurisdiction to entertain some of plaintiff's claims. Plaintiff's allegations do not demonstrate that he has standing to pursue his claims for relief based on the alleged violation of Bondi's constitutional rights.[6] To the extent that plaintiff pursues monetary relief for a violation of his own constitutional rights from the various federal agencies or any federal officer in his or her official capacity, he fails to allege any facts suggesting that his claims fall within a waiver of the sovereign immunity of the United States.[7] To the extent that plaintiff seeks to assert a private cause of action against the United States through the federal entity or official-capacity defendants for monetary damages on a breach of contract theory "because the Sioux Treaty of Fort Laramie was violated, "[8] plaintiff's monetary demand exceeds the $10, 000 jurisdictional limit of the district courts for such claims. See 28 U.S.C. §§ 1346(a)(2), 1491(a)(1).[9]

To the extent that plaintiff asserts a Bivens claim against Pivnichny for falsifying or fabricating evidence against him, the claim is barred by the statute of limitations. See Complaint, p. 1 (alleging interview of Bondi in 2003 and 2004); U.S. v. Banks, Case No. 2:03cr245-NBF, Doc. # 253, p. 2) (plaintiff's assertion, in a post-conviction motion that he filed in his criminal proceeding on January 27, 2006, over nine years ago, that Pivnichny had searched his home illegally and that "during the commission of this investigation someone repaired the Orbit II DVD/CD copying device before trial in violation of Banks' rights").[10]

Additionally, plaintiff fails to allege facts setting forth a plausible claim for relief against any defendant. In assessing whether a complaint states a claim for relief, the court does not consider "allegations... that are merely legal conclusions." American Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010)(citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Instead, the court considers only the allegations of fact to determine whether the complaint includes "either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory." Randall v. Scott, 610 F.3d 701, 707 n. 2 (11th Cir. 2010)(internal quotation marks omitted); see Bell Atlantic Corp v. Twombly, 550 U.S. 544, 555-56 (2007). The complaint must contain allegations of fact adequate to "nudge[] the[] claim across the line from conceivable to plausible." Id. at 570. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not show[n]' - that the pleader is entitled to relief.'" Iqbal, 556 U.S. at 679 (quoting Rule 8(a)(2))(second alteration in Iqbal).

Plaintiff previously asserted the claims now before this court in an action he filed in the U.S. District Court for the Western District of Oklahoma on May 15, 2015, against the same defendants. One week before plaintiff commenced the present lawsuit, U.S. District Judge Stephen P. Friot dismissed the Oklahoma case without prejudice pursuant to Rules 8 and 12(b) of the Federal Rules of Civil Procedure on May 21, 2015. Judge Friot reasoned as follows:

Although plaintiff appears pro se and his pleadings are liberally construed, he must still comply with the Federal Rules of Civil Procedure[.] The complaint does not contain a short and plain statement of the grounds for relief. It also does not include a short and plain statement of the grounds for the court's jurisdiction. See, Rule 8, Fed.R.Civ.P. Moreover, the complaint reveals no grounds upon which to conclude that the court has personal jurisdiction over the defendants, or that venue is proper in this court. Finally, no alleged facts suggest a plausible basis for relief. Among other reasons for this conclusion is the fact that the dates referenced in the complaint, as well as the complaint's general narrative, indicate that plaintiff's purported claims are time-barred.

Banks v. Pivnichny, et al., Civil Action No. CIV-15-530-F (W.D. Okla. May 21, 2015). The complaint that plaintiff has filed in this court is identical to the one he filed in Oklahoma, and plaintiff has failed to cure any of the deficiencies identified by Judge Friot.[11] Plaintiff's complaint still fails to satisfy the pleading requirements of Rule 8 and - to the extent he asserts claims that are within this court's jurisdiction - alleges no facts that state a plausible claim for relief against any defendant.

CONCLUSION

For the foregoing reasons, it is the RECOMMENDATION of the Magistrate Judge that plaintiff's claims be DISMISSED without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B).

The Clerk of the Court is ORDERED to file the Recommendation of the Magistrate Judge and to serve a copy on the parties to this action. Any party may file objections to this Recommendation on or before June 16, 2015. Any objections filed must specifically identify the findings in the Magistrate Judge's Recommendation to which the party objects. Frivolous, conclusive or general objections will not be considered by the District Court.

Failure to file written objections to the proposed findings and recommendations in the Magistrate Judge's report shall bar the party from a de novo determination by the District Court of issues covered in the report and shall bar the party from attacking on appeal factual findings in the report accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. Resolution Trust Co. v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989).


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