United States District Court, M.D. Alabama, Northern Division
ORDER AND RECOMMENDATION OF THE MAGISTRATE
WALLACE CAPEL, JR. CHIEF UNITED STATES MAGISTRATE JUDGE
se plaintiff Frederick Banks, a federal pretrial inmate
currently incarcerated at the Northeast Ohio Correctional
Center, initiated this civil action around July 20, 2017, by
filing what he styles as a “complaint for
damages.” Doc. No. 1. Banks alleges that the numerous
defendants named in his complaint violated his right to due
process, as well as the “bad men” clause under
the Sioux Treaty of Fort Laramie, by conspiring with, or
covering up actions by, FBI Special Agent Timothy Pivnichny,
who Banks says intimidated his fiancée at gunpoint
(“in 2003 and 2004”) into testifying against
Banks in a criminal case in the United States District Court
for the Western District of Pennsylvania. Id. at
4-5. Besides seeking declaratory relief directing that his
criminal case no longer be delayed, Banks requests
“damages exceeding $500, 000, 000.” Id.
connection with his complaint, Banks has filed an application
for leave to proceed in forma pauperis under 28
U.S.C. § 1915(a). Doc. No. 2. However, under 28 U.S.C.
§ 1915(g), commonly called the “three-strikes
rule, ” a prisoner may not bring a civil action in
forma pauperis if he “has, on 3 or more occasions,
while incarcerated or detained in any facility, brought an
action or appeal in a court of the United States that was
dismissed on the grounds that it is frivolous, malicious, or
fails to state a claim upon which relief may be granted,
unless the prisoner is under imminent danger of serious
is “a well-established, multi-district, frequent filer,
” who, through September 2014,
filed over 205 cases that were dismissed 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, 99 were
dismissed pursuant to the three strikes provision of 28
U.S.C. § 1915(g).
Banks v. Pugh, No. 4:13CV2522, 2014 WL 4441470, at
*1 (N.D. Ohio Sept. 9, 2014). A cursory search of cases on
Westlaw and the PACER system reveals that Banks has not
ceased such filings and has continued to file civil suits in
multiple federal district courts dismissed as frivolous and
vexatious or subject to dismissal under § 1915(g)'s
three-strikes rule. See, e.g., Banks v. Hornak, No.
16-6981, 2017 WL 2788587 (4th Cir. June 27, 2017); Banks
v. Merit Sys. Prot. Bd. U.S. Dept. of Justice, No.
16-61, 2016 WL 693135 (W.D. Pa. Feb. 22, 2016); Banks v.
Pope Francis, No. CV 15-1385, 2015 WL 8207532 (W.D. Pa.
Dec. 8, 2015); Banks v. Roberts, No. 16-CV-720, 2016
WL 3963000 (E.D. Wis. July 21, 2016).
over 200 cases dismissed by other federal district courts
under 28 U.S.C. § 1915(e) or § 1915(g), there is
ample basis for dismissing Banks's instant action by
applying § 1915(g)'s three-strikes
rule. For simplicity and brevity, this court
will rely on but a small percentage of these cases in finding
a violation of the directives of § 1915(g) here. The
court relies on the following cases, selected through no
particular methodology, filed by Banks while incarcerated or
detained and dismissed as frivolous or malicious or for
failing to state a claim on which relief may be granted: (1)
Banks v. Vio Software, 275 F. App'x. 800 (10th
Cir. 2008) (assessing Banks two strikes); (2) Banks v.
U.S. Marshal, 274 F. App'x 631 (10th Cir. 2008)
(assessing Banks four strikes); (3) Banks v. An Unknown
Named Number of Federal Judges and United States Covert
Government Agents, No. 1:13 CV 1763 (N.D. Ohio Oct. 10,
2013) (dismissed under § 1915(e)); (4) Banks v. U.S.
Marshal, No. 4:13 CV 490 (N.D. Ohio June 19, 2013)
(dismissed under § 1915(e)); (5) Banks v.
Scarsborough, No. 4:13 CV 170 (N.D. Ohio Mar. 29, 2013)
(dismissed under three-strikes provision of § 1915(g));
(6) Banks v. Action Software, No. 1:07 CV 930 (N.D.
Ohio July 9, 2007) (dismissed under § 1915(e)); (7)
Banks v. County of Allegheny, 568 F.Supp.2d 579, 586
n.1 (W.D. Pa. 2008) (noting that Banks “has accumulated
more than three strikes”); (8) Banks v. Dove, et
al., Civil No. 1:06-CV-02289 (M.D. Pa. Jan. 16, 2007)
(dismissed under § 1915(e)); (9) Banks v. PNC
Bank, No. C06-1109JLR, 2007 WL 2363064 (W.D. Wash. Aug.
14, 2007) (counting three strikes against Banks based upon
two suits filed in the Western District and one suit filed in
the Middle District of Pennsylvania); (10) Banks v.
Williams, No. 5:07-CV-226, 2008 WL 544946 (S.D.Miss.
Feb. 21, 2008) (denying Banks IFP status because he had at
least three strikes).
allegations made the basis of Bank's complaint fail to
demonstrate that he was “under imminent danger of
serious physical injury” when he filed this complaint,
as required to meet the imminent danger exception to
application of 28 U.S.C. § 1915(g). Medberry v.
Butler, 185 F.3d 1189, 1193 (11th Cir. 1999) (a prisoner
who has filed three or more frivolous lawsuits and seeks to
proceed in forma pauperis must allege a present
“imminent danger” to circumvent application of
the “three strikes” provision of 28 U.S.C. §
court therefore concludes that Banks's motion for leave
to proceed in forma pauperis should be denied and
this case dismissed without prejudice for Banks's failure
to pay the requisite $350.00 filing fee upon initiating this
cause of action. Dupree v. Palmer, 284 F.3d 1234,
1236 (11th Cir. 2002) (emphasis in original) (“[T]he
proper procedure is for the district court to dismiss the
complaint without prejudice when it denies the prisoner leave
to proceed in forma pauperis pursuant to the
provisions of § 1915(g)” because the prisoner
“must pay the filing fee at the time he initiates the
it is ORDERED that the motion for leave to proceed in
forma pauperis filed by Banks (Doc. No. 2) is DENIED.
Additionally, it is the RECOMMENDATION of the Magistrate
Judge that this case be DISMISSED without prejudice for
Banks's failure to pay the full filing fee upon
initiating this case.
further ORDERED that the parties shall file any objections to
this Recommendation or before October 31, 2017. A party must
specifically identify the factual findings and legal
conclusions in the Recommendation to which objection is made;
frivolous, conclusive, or general objections will not be
considered. Failure to file written objections to the
Magistrate Judge's findings and recommendations under the
provisions of 28 U.S.C. § 636(b)(1) will bar a party
from a de novo determination by the District Court
of legal and factual issues covered in the Recommendation and
waives the right of the party to challenge on appeal the
District Court's order based on unobjected-to factual and
legal conclusions accepted or adopted by the District Court
except upon grounds of plain error or manifest injustice.
Nettles v. Wainwright, 677 F.2d ...