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Banks v. Duquesne Light Co.

United States District Court, Third Circuit

November 4, 2013

FREDERICK BANKS, Plaintiff,
v.
DUQUESNE LIGHT COMPANY, et al., Defendants.

REPORT AND RECOMMENDATION

LISA PUPO LENIHAN, Magistrate Judge.

I. RECOMMENDATION

For the following reasons, it is respectfully recommended that Plaintiff's Complaint for Writ of Mandamus and Complaint for damages under the Sioux Treaty of Fort Laramie and the Northwest Ordinance be dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) & (ii).

II. REPORT

A. Background

Plaintiff, Frederick Banks, commenced this lawsuit in the Middle District of Pennsylvania on July 26, 2013. He submitted for filing a Complaint for Writ of Mandamus and damages under the Sioux Treaty of Fort Laramie and the Northwest Ordinance, accompanied by a Motion for Leave to Proceed in forma pauperis . That motion was granted and this matter was transferred to the Western District of Pennsylvania, pursuant to 28 U.S.C. § 1406, on September 16, 2013.

In the Complaint, Plaintiff names as Defendants, two utility companies-Duquesne Light Company and Equitable Gas Company, along with 14 officers and/or employees of these companies, and EQT Plaza.[1] Also named as a Defendant in this matter is Mike Doyle, U.S. Congressman, as a Defendant.

Plaintiff alleges that at some undetermined date and time and continuing to the time he commenced this action, Defendants, without his consent, disrupted his power and gas service, "simpl[y] because of his class based status as an American Indian. (Compl. ¶ 2.) Banks further alleges that he contacted the Defendants who told him that he does not owe them anything but that to restore service he must file a reconnect order with the City of Pittsburgh. ( Id. at ¶ 3.) Banks contends he never consented to having his service disrupted and therefore requests a writ of mandamus from the Court compelling Defendants to restore his service at 52 South 8th Street, Pittsburgh, PA 15203 immediately. ( Id. ) As to Congressman Doyle, Banks merely alleges that this Court should compel Doyle to "intervene on his behalf and investigate the allegations" set forth in his Complaint. (Compl., Intro. para.)

In addition, Banks claims that as an American Indian, he may recover damages against a person subject to the authority of the United States under the Sioux Treaty of Fort Laramie of 1868. ( Id. at ¶ 4.) Banks further alleges that Defendants are disturbing his property rights in violation of the Northwest Ordinance of 1787. He seeks compensatory damages in the amount of $500, 000, as well as punitive damages of $1, 000, 000.00, for a total of $1, 500, 000.00.

B. LEGAL STANDARD

Plaintiff is proceeding pro se and as such, he is entitled to liberal construction of his submissions in federal court. This means that the Court must liberally construe the factual allegations of the complaint because pro se pleadings, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erikson v. Pardus , 551 U.S. 89, 94 (2007) (internal quotation omitted); Haines v. Kerner , 404 U.S. 519, 520 (1972). In addition, the court should "apply the applicable law, irrespective of whether a pro se litigant has mentioned it by name.'" Higgins v. Beyer , 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep't of Veterans Affairs , 165 F.3d 244, 247-48 (3d Cir. 1999)). See also Nami v. Fauver , 82 F.3d 63, 65 (3d Cir. 1996) ("Since this is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their complaint sufficiently alleges deprivation of any right secured by the Constitution.") (citing Holder v. City of Allentown , 987 F.2d 188, 194 (3d Cir. 1993)). However, pro se litigants are not free to ignore the Federal Rules of Civil Procedure. Pruden v. Long, Civ. A. No. 3:CV-06-2007, 2006 WL 3325439, *1 (M.D.Pa. Oct. 24, 2006).

Pursuant to 28 U.S.C. § 1915(a), Plaintiff requested and has been granted leave to proceed in forma pauperis . Thus, his allegations must be reviewed in accordance with the directives provided in 28 U.S.C. § 1915(e). Section 1915(e)(2), as amended, requires the federal courts to review complaints filed by persons who are proceeding in forma pauperis and to dismiss, at any time, any action that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). "[A] complaint... is frivolous where it lacks an arguable basis either in law or in fact." Neitzke v. Williams , 490 U.S. 319, 325 (1989); Hawkins v. Coleman Hall, C.C.F. , No. 11-3467, 2011 WL 5970977, at *2 (3d Cir. Nov. 30, 2011) ("An appeal is frivolous when it lacks an arguable basis either in law or fact." (citing Neitzke, supra ). Thus, under § 1915(e)(2)(B), courts are "authorized to dismiss a claim as frivolous where it is based on an indisputable meritless legal theory or where the factual contentions are clearly baseless.'" O'Neal v. Remus , No. 09-14661, 2010 WL 1463011, at *1 (E.D.Mich. Mar. 17, 2010) (quoting Price v. Heyrman , No. 06-C-632, 2007 WL 188971, at *1 (E.D.Wis. Jan. 22, 2007) (citing Neitzke , 490 U.S. at 327)).[2]

In determining whether a claim fails to state a claim upon which relief may be granted for purposes of Section 1915(e)(2)(B), courts apply the same standard applied to motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. D'Agostino v. CECOM RDEC , 436 F.App'x 70, 72 (3d Cir. 2011) (citing Tourscher v. McCullough , 184 F.3d 236, 240 (3d Cir. 1999)). A complaint must be dismissed pursuant to Rule 12(b)(6) if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly , 550 U.S. 554, 556 (2007) (rejecting the traditional 12(b)(6) standard set forth in Conley v. Gibson , 355 U.S. 41, 45-46 (1957)); Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (citing Twombly ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Twombly , 550 U.S. at 556). The court of appeals has expounded on this standard in light of its decision in Phillips v. County of Allegheny, 515 F.3d 224 (3d Cir. 2008) (construing Twombly in a civil rights context), and the Supreme Court's decision in Iqbal :

After Iqbal, it is clear that conclusory or "bare-bones" allegations will no longer survive a motion to dismiss: "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S.Ct. at 1949. To prevent dismissal, all civil complaints must now set out "sufficient factual matter" to show that the claim is facially plausible. This then "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 1948. The Supreme Court's ruling in Iqbal emphasizes that a ...

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