Frederick Banks v. Wedgewood Property Co.

• Court: District Court, C.D. California
• Decided: January 29, 2020
• Docket: 2:20-cv-00665
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10

11 5 WOMEN IN OAKLAND Case No. 2:20-cv-00665-ODW (GJS) CALIFORNIA HOUSE; 12 FREDERICK BANKS, as next ORDER DISMISSING PETITION friend thereto; WITCHCRAFT 13 RIDDLER; & BLACK MAGICK BEARS CULT, 14 Petitioners 15 v. 16 WEDGWOOD PROPERTY CO., et 17 al., 18 Respondents.

19 20 21 On January 22, 2020, a putative 28 U.S.C. § 2241 habeas petition was filed in 22 this District [Dkt. 1, “Petition”]. The Petition was filed by Frederick Banks, a 23 convicted criminal incarcerated in Allegheny County Jail in Pittsburgh, 24 Pennsylvania. Banks purports to be acting as “next friend” on behalf of “5 Women 25 in Oakland California House,” “Witchcraft Riddler,” and “Black Magick Bears 26 Cult.” The only person who has signed the Petition is Banks, who mailed the 27 Petition to the Court from Allegheny County Jail and who seeks leave to proceed on 28 an in forma pauperis basis. 1 The Petition names as Respondents: Wedgwood Property Co.; the Central 2 Intelligence Agency (“CIA”); “County Sheriff” (no county specified); Gina Haspel; 3 Michael Atkinson, I.G.; and the House Intelligence Committee. The Petition raises 4 a single claim. Banks alleges that the CIA placed the Petitioners “under a FISA 5 warrant & FISA electronic surveillance using ‘Microwave Hearing’ Technology,” 6 which caused an “illegal eviction order to be lodged” against the Petitioners in 7 Oakland, California. Banks alleges that the CIA’s action violated 50 U.S.C. § 1801 8 et seq. As relief, Banks asks the Court to: “Discharge petitioners from FISA 9 electronic surveillance & restraint”; enjoin the CIA from further “manipulation of 10 petitioners”; and enjoin Respondents and unspecified “others” from evicting 11 Petitioners.1 12 Banks is not a stranger to this District, nor to District and Circuit Courts across 13 the United States. As the Court previously has noted (see, e.g., Case No. 5:19-cv- 14 00780-ODW (GJS), Dkt. 3; Case No. 2:19-cv-08514-ODW (GJS), Dkt. 3), Banks is 15 a well-known bringer of frivolous lawsuits across the country. Pursuant to Rule 201 16 of the Federal Rules of Evidence, the Court has taken judicial notice of the federal 17 court case dockets and filings available through the PACER and Westlaw systems 18 relating to Banks, which show (without a precise count) many, many hundreds (if 19 not well over 1,000) of federal court proceedings initiated by Banks over the past 20 decade. 21 While Banks has a prior criminal history that the Court will not recount here, it 22 is significant that, recently, Banks was tried by jury in the United States District 23 Court for the Western District of Pennsylvania and was found guilty of multiple 24 counts of wire fraud and one count of aggravated identity theft on November 8, 25 26 1 Banks asserts separately that the CIA recently used this same “Microwave Hearing” 27 technology to “remotely kill” the drummer for the band Rush and to down a Ukrainian airliner carrying 130 “Iranian-Canadians,” which Banks labels as an act of war against Canada. Banks, 28 however, does not appear to seek habeas relief on this basis. 1 2019. Banks is awaiting sentencing, which is scheduled for Spring 2020, and 2 remains in custody. See Docket in Case No. 2:15-cr-00168 (W.D. Pa.). Banks also 3 is “a notorious frequent filer” in the federal court system, who has had hundreds of 4 cases dismissed at the pleading stage as frivolous. Banks v. Song, No. 1:17-cv- 5 00339 (D. Haw. July 25, 2017) (Order Dismissing Action and Denying In Forma 6 Pauperis Application); see also Banks v. Cuevas, No. 4:17CV2460, 2018 WL 7 1942192, at *1 (N.D. Ohio April 25, 2018) (describing Banks as a “frequent filer of 8 frivolous actions in federal and state courts”); Banks v. Song, No. 17-00093, 2018 9 WL 3130940, at *1-*2 (D. Guam Jun. 26, 2018) (finding lawsuit filed by Banks 10 related to his Western District of Pennsylvania prosecution that essentially was the 11 same suit that he had filed in a number of other Districts in the United States to be 12 “malicious” and improperly filed in the District of Guam); Banks v. New York 13 Police Dept., No. 4:15-CV-75-RLW, 2015 WL 1414828, at *2-*3 (E.D. Mo. Mar. 14 26, 2015) (dismissing as legally frivolous and malicious mandamus action brought 15 by Banks seeking relief based upon, inter alia, the deaths of Eric Garner and 16 Michael Brown). 17 When federal courts began dismissing Banks’s civil cases under 28 U.S.C. § 18 1915(g) due to his numerous “strikes,” he began filing 28 U.S.C. § 2241 or other 19 types of petitions in an attempt to avoid the Section 1915(g) limitation on his ability 20 to file actions without prepayment of the filing fee. See Banks v. Valaluka, No. 21 1:15-cv-01935 (N.D. Ohio Nov. 18, 2015) (Order denying leave to proceed in forma 22 pauperis and dismissing purported mandamus action).) As one District Court 23 described him: 24 Banks is a well-established, multi-district, frequent filer, who has brought over 350 cases in the Northern District 25 of Ohio, the District of Massachusetts, the Southern District of Mississippi, the District of Columbia, the 26 Southern District of New York, the Western District of 27 New York, the District of Colorado, the District of Arizona, the Southern District of Florida, the Middle 28 District of Florida, the Eastern District of North Carolina, 1 Eastern District of Missouri, the Eastern District of New 2 Jersey, the Eastern District of Arkansas, the Western District of Oklahoma, the District of Utah, and the 3 District of Alaska. All of these cases were dismissed as frivolous. He has been declared to be subject to three 4 strike provision of 28 U.S.C. § 1915(g) on numerous occasions. Undeterred, Banks utilizes § 2241 to 5 circumvent the application of § 1915(g). 6 Banks v. Greene, No. 4:18-cv-0884, 2018 WL 4615938, at *1 n.1 (N.D. Ohio, Sept. 7 25, 2018).2 8 In addition to numerous courts having found Banks’s case-initiating filings to be 9 frivolous, Banks has been designated as a vexatious litigant. See, e.g., Banks v. 10 Pope Francis, No. 2:15-cv-01400 (W.D. Pa. Dec. 8, 2015) (Order designating 11 Petitioner as a vexatious litigant). That vexatious litigant designation has been 12 ordered extended to cover filings made by Banks on behalf of any other persons, 13 whether as a purported “next friend” or otherwise, unless and until he has complied 14 with the requirements of the original vexatious litigant designation order. See 15 United States v. Miller, 726 Fed. App’x 107 (June 7, 2018) (affirming district court 16 order so extending scope of vexatious litigant order entered against Banks). 17 As even the most cursory review of his cases available through the PACER 18 system shows, Banks has a history of filing delusional and meritless actions on his 19 own behalf or on behalf of others with whom he has no connection, often (as here) 20 alleging electronic surveillance by the CIA or others. See, e.g., Banks v. Crooked 21 Hilary, No. 2:16-cv-07954 (C.D. Cal. Oct. 26, 2016) (Order denying leave to 22 proceed in forma pauperis and discussing some of the prior decisions finding 23 Petitioner’s actions to be frivolous and delusional); Schlemmer v. Central 24 Intelligence Agency, No. 2:15-cv-01583 (W.D. Pa. Dec. 15, 2015) (Order dismissing 25

26 2 Banks also has filed a number of actions in this District that have been summarily dismissed as frivolous. See Case Nos.: 2:15-cv-04225-ODW (GJSx); 2:16-cv-05544-JAK (KSx); 27 2:16-cv-07398-R (JPSx); 2:16-cv-07954-ODW (GJS); 2:17-cv-05412-GW (JPRx); 5:18-cv- 00526-ODW (GJS); 5:19-cv-00780-ODW (GJS); 2:19-cv-06748-JAK (JC); 2:19-cv-07428-ODW 28 (GJS); 2:19-cv-08514-ODW (GJS); and 2:19-cv-10468-ODW (GJS). 1 with prejudice a 28 U.S.C. § 2241 habeas petition filed by Petitioner as purported 2 “next friend” on behalf of a criminal defendant with whom he had no relationship); 3 Valaluka, supra (Order at 2: “Banks has not limited his frivolous filings to cases he 4 files in his own name, but has expanded his efforts by filing cases and motions on 5 behalf of other prisoners, often without their knowledge or consent.”). The instant 6 Petition is yet one more in his ongoing series of vexatious and improper litigation. 7 The claim alleged in the Petition is facially frivolous but particularly so to the 8 extent that it purports to be raised under the guise of a habeas action.3 No 9 cognizable and viable theory of habeas relief has been stated as to anyone, much 10 less as to the named Petitioners on whose behalf this habeas petition purportedly is 11 brought, none of whom appear to be in custody in the United States.4 There is no 12 habeas relief that any federal court could provide anyone based on the allegations of 13 the Petition. The matters alleged in the Petition simply do not involve situations in 14 which 28 U.S.C. § 2241 federal habeas jurisdiction properly can be invoked. 15 An equally critical, and obvious, defect in the Petition is that Banks has no right 16 or standing to seek habeas or any other type of relief as a representative acting on 17 behalf of anyone. There is no evidence before the Court that any of the named 18 Petitioners possibly would wish to have Banks – a pro se vexatious litigant and 19 convicted criminal awaiting sentencing, with a documented longstanding history of 20 filing utterly frivolous and delusional actions – act as his or her or its legal 21 representative in seeking any relief in federal courts. Indeed, no rational or sane 22 reason exists to believe that this is the case. 23 Apart from the factually frivolous nature of Banks’s assertion that he is entitled 24 to act on behalf of the named Petitioners, his attempt to do so is legally frivolous. 25

26 3 The claim also is factually and legally frivolous within the meaning of Denton v. Hernandez, 504 U.S. 25, 32-22 (1989), and Neitzke v. Williams, 490 U.S. 319, 325 (1989). 27 4 Unlike in some of his other purported habeas actions, Banks here is appearing solely in his 28 status as an asserted “next friend” for the named Petitioners. [Petition at 1.] 1 Generally, non-lawyers may not represent other persons in court. See, e.g., Simon v. 2 Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir. 2008) (“courts have routinely 3 adhered to the general rule prohibiting pro se plaintiffs from pursuing claims on 4 behalf of others in a representative capacity”); Collinsgru v. Palmyra Bd. Of Educ., 5 161 F.3d 225, 232 (3d Cir. 1998). 28 U.S.C. § 1654 permits persons to appear on a 6 pro se basis only in their “own cases personally.” See Shephard v. Wellman, 313 7 F.3d 963, 970 (6th Cir. 2002) (Section 1654 “does not permit plaintiffs to appear 8 pro se where interests other than their own are at stake”). Local Rule 83-2.10.2 9 expressly prohibits a pro se litigant from delegating his representation to any other 10 person. Because Banks is not a lawyer authorized to practice in this Court, he may 11 not pursue relief on behalf of anyone else. See C.E. Pope Equity Trust v. United 12 States, 818 F.2d 696, 697 (9th Cir. 1987) (a layperson acting in pro per may not 13 appear or seek relief on behalf of others). Banks has been told this time and time 14 again yet persists in bringing purported, and plainly improper, habeas actions on 15 behalf of others, further proving his inappropriateness to act as a representative of 16 anyone else. 17 While Banks asserts that he is acting as the “next friend” of the named 18 Petitioners, next friend status “is by no means granted automatically to whomever 19 seeks to pursue an action on behalf of another.” Whitmore v. Arkansas, 495 U.S. 20 149, 163 (1990). There are two “‘firmly rooted prerequisites’” that must be met 21 before a next friend can be appointed: (1) the putative next friend must provide an 22 adequate explanation, such as mental incompetence or other disability, regarding 23 why the real party in interest cannot appear on his own behalf; and (2) the putative 24 next friend must be “‘truly dedicated to the best interests of the person on whose 25 behalf he seeks to litigate,’” which requires the existence of a “‘significant 26 relationship’” between the two persons. Dennis ex rel. Butko v. Budge, 378 F.3d 27 880, 888 (9th Cir. 2004) (citation omitted). The burden of establishing these two 28 requirements is on the putative next friend. Whitmore, 495 U.S. at 164. Because the 1 standing of a next friend is a jurisdictional issue, the Court lacks jurisdiction if these 2 requirements are not satisfied. Id.; see also Dennis, 378 F.3d at 888 n.5. 3 The Petition fails entirely to satisfy these requirements. Although Banks states 4 that he is entitled to act as the “next friend” for the named Petitioners, he proffers no 5 explanation of why, and none appears possible. The second Whitmore requirement 6 also plainly is not, and cannot be, satisfied. There is no declaration or other 7 evidence before the Court indicating that Banks has a “significant relationship” with 8 any of the named Petitioners, much less that Banks is truly dedicated to their 9 interests. As Banks is not a lawyer and has a long history of filing baseless and 10 nonsensical lawsuits, there is no basis for finding that he will be able to provide 11 these Petitioners – or indeed anybody – with adequate representation in a habeas 12 proceeding or any other type of proceeding, and his litigation history indicates 13 precisely the opposite, namely, summary dismissal after summary dismissal of the 14 actions he brings. Moreover, Banks is incarcerated in a Pennsylvania jail and is 15 awaiting sentencing on his federal criminal conviction, and he lacks the physical and 16 financial means to pursue this action on anyone’s behalf. Significantly, with the 17 Petition, Banks has filed an application to proceed in forma pauperis in which he 18 states that he has no money. 19 “[I]ndividuals not licensed to practice law by the state may not use the ‘next 20 friend’ device as an artifice for the unauthorized practice of law.” Weber v. Garza, 21 570 F.2d 511, 514 (5th Cir. 1978). Banks, an unlicensed, lay incarcerated person, 22 may not represent anyone else in this Court or elsewhere, nor may he sign pleadings 23 or receive court documents on behalf of anyone else. There is no basis for finding 24 that Banks may bring and pursue this habeas action on behalf of any other person, 25 whether as their “next friend” or otherwise. Plainly, he lacks standing to do so. As 26 a result, jurisdiction is lacking and the Petition must be dismissed. 27 /// 28 /// 1 Accordingly, IT IS ORDERED that: the Petition is dismissed; and Judgment 2 || shall be entered dismissing this action.

4 || DATED: _January 29, 2020 5 UNITED STATES DISTRICT JUDGE 6 7 || Submitted by: 8 9 10 || GAIL J. STANDISH 4 UNITED STATES MAGISTRATE JUDGE

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28