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Frederick Banks v. Cessan

United States District Court, M.D. Pennsylvania

June 11, 2014

FREDERICK BANKS, Plaintiff,
v.
AWA ROBERT CESSAN, et al., Defendants.

ORDER

CHRISTOPHER C. CONNER, Chief District Judge.

AND NOW, this 11th day of June, 2014, upon preliminary consideration of plaintiff's Bivens[1] complaint, [2] in which plaintiff alleges that the named defendants entered into a civil conspiracy to prevent him from litigating a mortgage foreclosure matter in Pennsylvania, (Doc. 1 at 2), and it appearing that he seeks to proceed in forma pauperis (Docs. 2-3), pursuant to 28 U.S.C. § 1915, and it further appearing that the "three strikes" provision of the Prison Litigation Reform Act of 1996 ("PLRA"), codified at 28 U.S.C. § 1915, prohibits plaintiff from proceeding in forma pauperis because he has had at least three prior civil actions dismissed as frivolous, malicious, or for failure to state a claim for which relief may be granted, [3] and that there is no indiction that plaintiff "is under imminent serious physical injury, " 28 U.S.C. § 1915(g) (setting forth three strikes rule which provides that an inmate who has three prior actions or appeals dismissed as frivolous, malicious, or for failing to state a viable claim may not proceed in forma pauperis "unless the prisoner is under imminent danger of serious physical injury"); see also Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir. 2001) ( en banc ), and that as a direct result of the repetitive nature and sheer volume of civil actions plaintiff has filed, [4] both the district court for the Western District of Pennsylvania and this court have determined that plaintiff has abused the in forma pauperis privilege and, therefore, have restricted his ability to file future civil actions, [5] except habeas corpus petitions, without a statement certifying: "(1) that the claims he wishes to present are new claims never before raised and disposed of on the merits by any federal court, (2) that he believes the facts alleged in his complaint to be true, and (3) that he knows of no reason to believe his claims are foreclosed by controlling law, " Banks v. Director, Central Intelligence Agency, et al., No. 1:13-cv-3083, Doc. 5 (M.D. Pa. Jan. 15, 2014); see Banks, 2013 WL 5945786, at *1 (similar Western District restrictions), and that it is evident that the restrictions thus far placed on plaintiff have not deterred his filing of frivolous matters or prevented him from filing civil actions without regard to merits, jurisdiction, or venue, and that it is obvious that plaintiff is using this court as a springboard for any and all of his litigation activities, [6] and that given the burden that plaintiff is placing on the court's resources, it is apparent that a stronger sanction is both warranted and necessary, [7] and further that, in light of these considerations, the court issued a show cause order (Doc. 8) on May 28, 2014, noticing plaintiff of the court's intent to enjoin him, for a period of one year, from proceeding in forma pauperis in this action and any future matter filed in this district, except petitions for writs of habeas corpus and cases over which the court arguably has subject matter jurisdiction in matters implicating the imminent danger exception to the three strikes rule, [8] and affording plaintiff an opportunity to show cause why said injunction should not issue, and the court observing that plaintiff has exercised this opportunity, but that his responsive filing (Doc. 9) fails to set forth a meaningful or compelling opposition to the proposed injunction, and thus concluding that said injunction is appropriate and necessary, and serves the dual interests of promoting justice and conserving judicial resources, and will allow the court to devote its limited resources to the claims of those who have not abused its process, In re Sassower, 510 U.S. at 5-6, and that the same is narrowly tailored to discourage and ultimately prevent the future filing of frivolous matters in this court, see id., it is hereby ORDERED that:

1. Plaintiff's complaint (Doc. 1) is DISMISSED without prejudice pursuant to 28 U.S.C. § 1915(g).
2. The Clerk of Court is directed to CLOSE this case.
3. Plaintiff is hereby ENJOINED for a period of one (1) year from proceeding in forma pauperis in this court as to this matter and all future civil actions, except petitions for writ of habeas corpus and cases over which the court arguably has subject matter jurisdiction implicating the imminent danger exception to the three strikes rule.
4. The Clerk of Court is directed to REJECT any future civil action or filing received from plaintiff, except petitions for writ of habeas corpus and cases over which the federal court arguably has subject matter jurisdiction implicating the imminent danger exception to the three strikes rule that is not accompanied by the requisite statutory filing fee, and to NOTIFY plaintiff of the rejection.
5. Plaintiff is admonished that failure to comply with the injunction issued herein may result in contempt proceedings or the imposition of appropriate sanctions.

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