Opinion
Civil Action No. 13 - 1615
12-02-2013
FREDERICK BANKS, Plaintiff, v. UNITED STATES OF AMERICA, Defendants.
District Judge Nora Barry Fischer
Chief Magistrate Judge Lisa Pupo Lenihan
MEMORANDUM ORDER
Pending before the Court is a Report and Recommendation issued by Chief Magistrate Judge Lisa Pupo Lenihan on November 13, 2013. (ECF No. 6.) Because Plaintiff has three "strikes" and is barred from bringing a civil action in forma pauperis, the magistrate judge recommended that Plaintiff's Motion for Leave to Proceed in forma pauperis be denied in accordance with 28 U.S.C. § 1915(g) and that this action be dismissed without prejudice to Plaintiff's right to reopen it by paying the full $400.00 filing fee. Plaintiff was served with the Report and Recommendation and informed that he had until December 2, 2013, to file written objections. Plaintiff filed objections on November 25, 2013.
As previously noted, the magistrate judge recommended that Plaintiff's request for in forma pauperis status be denied in accordance with 28 U.S.C. § 1915(g) because Plaintiff is a prisoner who has had at least three prior civil actions dismissed that count as "strikes," or, in other words, that have been dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted. See Banks v. Commonwealth of Pennsylvania, Third Circuit No. 10-1597 (Order dated April 8, 2010, and ultimately denying Plaintiff leave to appeal in forma pauperis because he has three strikes: Banks v. Hayward, W.D. Pa. Civ. No. 06-cv-509; Banks v. Hayward, W.D. Pa. Civ. No. 06-cv-1572; In Re: Banks, C.A. No. 06-1828)). Therefore, according to the statute, Plaintiff may not bring a civil action in forma paupers unless he is under "imminent danger of serious physical injury." See 28 U.S.C. § 1915(g). Plaintiff objects to this recommendation on the basis that he is not a "prisoner" within the meaning of section 1915(g), but rather a "holdover awaiting a probation violation hearing," and, therefore, the statute is inapplicable as to him. (ECF No. 7.) Plaintiff is mistaken. Contrary to his assertion, section 1915(g) specifically applies to those "accused of" violating the terms and conditions of their probation or parole. See 28 U.S.C. § 1915(h). Therefore, Plaintiff's objection is without merit.
Plaintiff also objects stating that he under imminent danger of serious physical injury because the CIA Office of Science and Technology Behavioral Modification Unit is harassing him using voice to skull technology, which is known to cause cancer and other forms of lethal diseases. It appears as though Plaintiff is attempting to invoke the exception to section 1915(g)'s three strike rule, which allows a prisoner to proceed in forma pauperis if he is under "imminent danger of serious physical injury." However, Plaintiff has made almost identical allegations in other complaints he has brought before this Court, and, of which the Court has found to be frivolous. See Banks v. Realty Counseling Company, W.D. Pa. Civ. No. 2:13-1025 (claiming that defendants used "Remote Neural Monitoring" technology to harass and steal from him). These allegations are clearly insufficient to overcome section 1915(g)'s three strike bar.
Therefore, after de novo review of the pleadings and documents in the case, together with the Report and Recommendation, and the Objections thereto, the following order is entered.
AND NOW, this 2nd day of December, 2013,
IT IS HEREBY ORDERED that Plaintiff's Motion for Leave to Proceed in forma pauperis (ECF No. 2) is DENIED in accordance with 28 U.S.C.§ 1915(g).
IT IS FURTHER ORDERED that the magistrate judge's Report and Recommendation (ECF No. 6) dated November 13, 2013, is ADOPTED as the Opinion of this Court.
IT IS FURTHER ORDERED that this action is DISMISSED without prejudice and that Plaintiff may reopen this action within sixty (60) days by paying the full $400.00 filing fee.
IT IS FURTHER ORDERED that the Clerk of Court mark this case CLOSED.
AND IT IS FURTHER ORDERED that pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure, Petitioner has thirty (30) days to file a notice of appeal as provided by Rule 3 of the Federal Rules of Appellate Procedure.
By the Court:
________________
Nora Barry Fischer
United States District Judge
cc: Frederick Banks
#05711-068
NEOCC
2240 Hubbard Road
Youngstown, OH 44505
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