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Banks v. Song

United States District Court, D. Maine

August 2, 2017

SOO SONG, ET AL., Defendants



         In this action, Plaintiff Frederick Banks alleges he has been unlawfully detained in the District of Ohio, in the context of criminal proceedings pending in the District of Pennsylvania. Plaintiff has filed a pleading captioned “Complaint for a Writ of Quo Warranto, Prohibition and Mandamus” in this district and several other districts. Plaintiff also asserts a claim for defamation. The Court denied Plaintiff's motion to proceed in forma pauperis because Plaintiff did not provide the requisite financial information. (Order, ECF No. 3.)

         Plaintiff's complaint is subject to screening under the Prison Litigation Reform Act (PLRA) “before docketing, if feasible or … as soon as practicable after docketing, ” because Plaintiff is “a prisoner seek[ing] redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a).

         Following a review of Plaintiff's complaint, I recommend the Court dismiss the complaint.

         Standard of Review

         The § 1915A screening requires courts to “identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim …; or (2) seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b).

         Factual Background

         Plaintiff alleges Defendants have intentionally delayed his criminal case in the Western District of Pennsylvania, United States v. Banks, No. 2:15-cr-00168 (W.D. Pa.), such that he has now been incarcerated for a longer time than the sentence that could be imposed if he were convicted. Plaintiff has named as Defendants the presiding district court judge, the prosecuting attorneys, the FBI, the CIA, the United States Marshal Service, certain law enforcement officials, and his appointed counsel. Plaintiff requests declaratory relief, monetary relief, and an order releasing him from pretrial detention.


         The federal mandamus statute states: “The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. However, with respect to a writ of mandamus or prohibition directed toward the activity of a federal district court, such a proceeding is designed either to compel a court to act or to prevent a court from acting. In re Blodgett, 502 U.S. 236, 241 n.1 (1992); Will v. United States, 389 U.S. 90, 95 (1967); In re Recticel Foam Corp., 859 F.2d 1000, 1001 n.1 (1st Cir. 1988).[1] “Exceptional circumstances” are required to invoke such an “extraordinary remedy, ” and, significantly, one district court cannot compel another district court to act under such a writ. Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980). See also 28 U.S.C. § 1651(a) (the All Writs Act) (“The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”) (emphasis added).

         As recently observed by the District of Hawaii, in which district Plaintiff also filed:

If Banks seeks an order directing the Western District of Pennsylvania to try him forthwith, he must pursue such relief with the Court of Appeals for the Third Circuit. And the Third Circuit has already denied Banks a writ of mandamus in his pending criminal action in the Western District of Pennsylvania, finding, “[t]o the extent that Banks alleges that mandamus relief is appropriate in light of the delay in his criminal case while the question of his competency is being determined, we disagree that our intervention is warranted.” In re Banks, 670 F.App'x 54 (3d Cir. 2016) (Mem.) (citing Madden v. Myers, 102 F.3d 74, 79 (3d Cir. 1996)). The Third Circuit found that the record in Banks' criminal case, at least up to November 2016, showed that “the District Judge and the parties remain engaged in the matter, and the proceedings have remained active in recent months.” Id. The District of Hawaii is not a court “superior” to the Western District of Pennsylvania, cannot sit as a quasi-appellate court over that district court, and has no jurisdiction or duty to compel the Western District of Pennsylvania, its U.S. Attorney and Assistant U.S. Attorneys, the CIA, the FBI, or their officers to take any action in Banks' pending criminal action.

Banks v. Song, No. 1:17-cv-00339 (D. Haw. July 25, 2017) (Order Dismissing Action and Denying In Forma Pauperis Applications). Simply stated, this Court lacks the authority to provide the mandamus relief requested by Plaintiff.

         Furthermore, to the extent Plaintiff attempts to assert an action for violation of his civil rights, presumably pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 389 (1971), even if this Court has jurisdiction over the defendants, the District of Maine is ...

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