Frederick Banks v. Kelly Forbes

Fourth Circuit

Frederick Banks v. Kelly Forbes

707 F. App'x 771

CourtCourt of Appeals for the Fourth Circuit

DecidedDecember 28, 2017

Docket17-7207

StatusUnpublished

Cited by1 cases

This text of 707 F. App'x 771 (Frederick Banks v. Kelly Forbes) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Frederick Banks v. Kelly Forbes, 707 F. App'x 771 (4th Cir. 2017).

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Opinion

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Federal pretrial detainee Frederick Banks appeals the district court’s order dismissing without prejudice his petition seeking a writ of habeas corpus, pursuant to 28 U.S.C. § 2241 (2012), and a writ of mandamus, pursuant to 28 U.S.C. § 1861 (2012). We agree with the district court that, because a Pennsylvania District Court is in the process of determining Banks’ competency to stand trial, Banks’ request for mandamus and habeas relief is premature. See Heckler v. Ringer, 466 U.S. 602, 616, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984) (“The common-law writ of mandamus, as codified in 28 U.S.C. § 1361, is intended to provide a remedy for a plaintiff only if he has exhausted all other avenues of relief and only if the defendant owes him a clear nondiscretionary duty.”); Timms v. Johns, 627 F.3d 525, 530 (4th Cir. 2010) (“[W]e hold that Timms should have exhausted his alternative remedies in the Commitment Action before availing himself of habeas review under § 2241.”). Thus, we grant Bank’s application to proceed in forma pauperis and affirm the district court’s judgment. See Banks v. Forbes, No. 5:17-hc-02102-BO (E.D.N.C. Aug. 28, 2017). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.

AFFIRMED

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Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Federal pretrial detainee Frederick Banks appeals the district court’s order dismissing without prejudice his petition seeking a writ of habeas corpus, pursuant to 28 U.S.C. § 2241 (2012), and a writ of mandamus, pursuant to 28 U.S.C. § 1861 (2012). We agree with the district court that, because a Pennsylvania District Court is in the process of determining Banks’ competency to stand trial, Banks’ request for mandamus and habeas relief is premature. See Heckler v. Ringer, 466 U.S. 602, 616, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984) (“The common-law writ of mandamus, as codified in 28 U.S.C. § 1361, is intended to provide a remedy for a plaintiff only if he has exhausted all other avenues of relief and only if the defendant owes him a clear nondiscretionary duty.”); Timms v. Johns, 627 F.3d 525, 530 (4th Cir. 2010) (“[W]e hold that Timms should have exhausted his alternative remedies in the Commitment Action before availing himself of habeas review under § 2241.”). Thus, we grant Bank’s application to proceed in forma pauperis and affirm the district court’s judgment. See Banks v. Forbes, No. 5:17-hc-02102-BO (E.D.N.C. Aug. 28, 2017). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.

AFFIRMED

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707 F. App'x 771, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frederick-banks-v-kelly-forbes-ca4-2017.

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