The opinion
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
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11 USE EXCEDRIN OR GENERIC Case No. 2:20-cv-03640-ODW (GJS)
EXCEDRIN, FREDERICK BANKS,
12 next friend thereto & individually, ORDER DISMISSING PETITION
13 Petitioners
14 v.
15 CORONA VIRUS, et al.,
16 Respondents.
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19 On April 20, 2020, a putative 28 U.S.C. § 2241 habeas petition was filed in this
20 District [Dkt. 1, “Petition”]. The Petition was filed by Frederick Banks, a convicted
21 federal criminal incarcerated in Allegheny County Jail in Pittsburgh, Pennsylvania.
22 Although the case caption lists “USE EXCEDRIN OR GENERIC EXCEPTION”
23 and Banks as Petitioners, with Banks acting as “next friend” as well as seeking
24 individual relief, the pain reliever Excedrin (and its generic substitute) does not
25 actually appear to be a Petitioner here, not could it serve as a Section 2241
26 petitioner. The only person who has signed the Petition is Banks, who mailed the
27 Petition to the Court from Allegheny County Jail. Accordingly, the Court construes
28 the Petition as having been brought by Banks on his own behalf.
1 The Petition names as Respondents: “Corona Virus”; “Covied [sic] 19
2 Pandemic”; the Central Intelligence agency (“CIA”); “Warden”; the Center for
3 Disease Control (“CDC”); and the U.S. Surgeon General. The Petition states that,
4 rather than challenging a conviction, sentence, or confinement, it challenges “illegal
5 CIA Domestic activity & a FISA warrant.” Banks alleges that he contracted the
6 coronavirus in February 2020, but because he had been taking Excedrin twice daily
7 for over 20 months, the effects of his illness were lessened. He alleges that the
8 coronavirus did not originate in China alone, as has been posited but, rather,
9 originated contemporaneously in China, the U.S., Iran, and Italy at the same time
10 due to the CIA having “delivered” it to and/or “planted” it in these countries. Banks
11 also alleges that he has been kept “under illegal FISA electronic surveillance in
12 violation of Due Process and 50 USC 1801 et seq.” As relief, Banks asks the Court
13 to: order the CDC and the U.S. Surgeon General to “ramp up its study on how long
14 term use of Excedrin could stop corona virus from killing victims of the pandemic”;
15 and to order “Respondents to disclose the FISA 50 USC 1806(F) and discharge
16 Petitioner from the FISA warrant and custody.”
17 While Banks has a prior criminal history that the Court will not recount here, it
18 is significant that, late last year, Banks was tried by jury in the United States District
19 Court for the Western District of Pennsylvania and was found guilty of multiple
20 federal counts of wire fraud and one federal count of aggravated identity theft on
21 November 8, 2019. Banks is awaiting sentencing and remains in custody. See
22 Docket in Case No. 2:15-cr-00168 (W.D. Pa.).
23 Apart from his criminal status, Banks also is “a notorious frequent filer” in the
24 federal civil court system, whose cases routinely are dismissed at the pleading stage
25 as frivolous. Banks v. Song, No. 1:17-cv-00339 (D. Haw. July 25, 2017) (Order
26 Dismissing Action and Denying In Forma Pauperis Application); see also Banks v.
27 Cuevas, No. 4:17CV2460, 2018 WL 1942192, at *1 (N.D. Ohio April 25, 2018)
28 (describing Banks as a “frequent filer of frivolous actions in federal and state
1 courts”); Banks v. Song, No. 17-00093, 2018 WL 3130940, at *1-*2 (D. Guam Jun.
2 26, 2018) (finding lawsuit filed by Banks related to his Western District of
3 Pennsylvania criminal prosecution that essentially was the same suit that he had
4 filed in a number of other Districts in the United States to be “malicious” and
5 improperly filed in the District of Guam); Banks v. New York Police Dept., No.
6 4:15-CV-75-RLW, 2015 WL 1414828, at *2-*3 (E.D. Mo. Mar. 26, 2015)
7 (dismissing as legally frivolous and malicious mandamus action brought by Banks
8 seeking relief based upon, inter alia, the deaths of Eric Garner and Michael
9 Brown).1 Pursuant to Rule 201 of the Federal Rules of Evidence, the Court has
10 taken judicial notice of the federal court case dockets and filings available through
11 the PACER and Westlaw systems relating to Banks, which show hundreds and
12 hundreds (if not well over 1,000) of federal civil proceedings initiated by Banks
13 over the past decade.
14 When federal courts began dismissing Banks’s civil cases under 28 U.S.C. §
15 1915(g) due to his numerous “strikes,” he began filing 28 U.S.C. § 2241 or other
16 types of petitions in an attempt to avoid the Section 1915(g) limitation on his ability
17 to file actions without prepayment of the filing fee. See Banks v. Valaluka, No.
18 1:15-cv-01935 (N.D. Ohio Nov. 18, 2015) (Order denying leave to proceed in forma
19 pauperis and dismissing purported mandamus action).) As one District Court
20 described him:
21 Banks is a well-established, multi-district, frequent filer,
who has brought over 350 cases in the Northern District
22 of Ohio, the District of Massachusetts, the Southern
District of Mississippi, the District of Columbia, the
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Southern District of New York, the Western District of
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1 Banks also has filed a number of actions in this District that have been summarily
26 dismissed as frivolous. See Case Nos.: 2:15-cv-04225-ODW (GJSx); 2:16-cv-05544-JAK (KSx);
2:16-cv-07398-R (JPSx); 2:16-cv-07954-ODW (GJS); 2:17-cv-05412-GW (JPRx); 5:18-cv-
27 00526-ODW (GJS); 5:19-cv-00780-ODW (GJS); 2:19-cv-06748-JAK (JC); 2:19-cv-07428-ODW
(GJS); 2:19-cv-08514-ODW (GJS); 2:19-cv-10468-ODW (GJS); 2:20-cv-00665-ODW (GJS);
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2:20-cv-00680-ODW (GJS); 2:20-cv-00979-ODW (GJS); and 2:20-cv-01138-ODW (GJS).
1 Arizona, the Southern District of Florida, the Middle
2 District of Florida, the Eastern District of North Carolina,
the Middle and Western Districts of Pennsylvania, the
3 Eastern District of Missouri, the Eastern District of New
Jersey, the Eastern District of Arkansas, the Western
4 District of Oklahoma, the District of Utah, and the
District of Alaska. All of these cases were dismissed as
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frivolous. He has been declared to be subject to three
6 strike provision of 28 U.S.C. § 1915(g) on numerous
occasions. Undeterred, Banks utilizes § 2241 to
7 circumvent the application of § 1915(g).
8 Banks v. Greene, No. 4:18-cv-0884, 2018 WL 4615938, at *1 n.1 (N.D. Ohio, Sept.
9 25, 2018).
10 In addition to courts having found Banks’s case-initiating filings to be frivolous,
11 Banks has been designated as a vexatious litigant. See, e.g., Banks v. Pope Francis,
12 No. 2:15-cv-01400 (W.D. Pa. Dec. 8, 2015) (Order designating Petitioner as a
13 vexatious litigant). That vexatious litigant designation has been ordered extended to
14 cover filings made by Banks on behalf of any other persons, whether as a purported
15 “next friend” or otherwise, unless and until he has complied with the requirements
16 of the original vexatious litigant designation order. See United States v. Miller, 726
17 Fed. App’x 107 (June 7, 2018) (affirming district court order so extending scope of
18 vexatious litigant order entered against Banks).
19 As even the most cursory review of his cases available through the PACER
20 system shows, Banks has a history of filing delusional and meritless actions on his
21 own behalf or supposedly on behalf of others with whom he has no connection,
22 often (as here) alleging electronic surveillance by the CIA or others. See, e.g.,
23 Banks v. Crooked Hilary, No. 2:16-cv-07954 (C.D. Cal. Oct. 26, 2016) (Order
24 denying leave to proceed in forma pauperis and discussing some of the prior
25 decisions finding Petitioner’s actions to be frivolous and delusional); Schlemmer v.
26 Central Intelligence Agency, No. 2:15-cv-01583 (W.D. Pa. Dec. 15, 2015) (Order
27 dismissing with prejudice a 28 U.S.C. § 2241 habeas petition filed by Petitioner as
28 purported “next friend” on behalf of a criminal defendant with whom he had no
1 relationship); Valaluka, supra (Order at 2: “Banks has not limited his frivolous
2 filings to cases he files in his own name, but has expanded his efforts by filing cases
3 and motions on behalf of other prisoners, often without their knowledge or
4 consent.”). The instant Petition is yet one more in his ongoing series of vexatious
5 and improper litigation, which typically (as here) is prompted by a recent and often
6 tragic event that received substantial media coverage, upon which Banks attempts to
7 capitalize.
8 The claim alleged in the Petition plainly is meritless and frivolous but
9 particularly so to the extent that it is raised under the guise of a habeas action.2
10 Banks has no standing to attempt to force the CDC and the U.S. Surgeon General to
11 perform any particular research through the vehicle of a habeas petition. No
12 cognizable and viable theory of habeas relief has been stated as to anyone,
13 regardless of Petitioner’s vague assertions of a “FISA warrant.” Banks is in custody
14 because he has been convicted of federal crimes and is awaiting sentencing, not
15 because of any putative FISA electronic surveillance. Banks does not challenge his
16 custody pursuant to his convicted status here, nor could he, because he was not
17 convicted in this District and is not incarcerated here.3 If Banks wishes to challenge
18 his present criminal custody, there are established avenues for him to do so, but
19 none of them include bringing repeated and frivolous 28 U.S.C. § 2241 actions
20 outside the District of conviction about matters having nothing to do with his
21 present conviction. The matters alleged in the Petition simply do not involve
22 situations in which 28 U.S.C. § 2241 federal habeas jurisdiction properly can be
23 invoked.
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2 The claim also is factually and legally frivolous within the meaning of Denton v.
26 Hernandez, 504 U.S. 25, 32-22 (1989), and Neitzke v. Williams, 490 U.S. 319, 325 (1989).
27 3 Given the delusional nature of Banks’s allegations and the lack of any basis for habeas
relief, his assertions regarding being subject to a FISA warrant-based electronic surveillance do
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not suffice to state a basis for habeas venue in this District.
1 Accordingly, IT IS ORDERED that: the Petition is dismissed for lack of
2 || jurisdiction; and Judgment shall be entered dismissing this action.
4 || DATED: April 22, 2020
5 UNITED STATES DISTRICT JUDGE
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4 Submitted by:
PT
GAIL J. STANDISH
10 || UNITED STATES MAGISTRATE JUDGE
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