Frederick Banks v. Trump Articles of Impeachment

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 FREDERICK BANKS, Case No. 2:21-cv-01042-ODW (GJS)

12 Petitioner ORDER DISMISSING PETITION

13 v.

14 TRUMP ARTICLES OF

IMPEACHMENT INCITMENT OF

15 INSURRECTION AT U.S. CAPITOL;

U.S. HOUSE OF

16 REPRESENTATIVES; U.S. SENATE;

WARDEN SEKOU MAAT; CENTRAL

17 INTELLIGENCE AGENCY;

DESIGNATION AND SENTENCE

18 COMPUTATION CENTER, GRAND

PRAIRIE TEXAS & FEDERAL

19 BUREAU OF PRISONS,

20 Respondents.

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22 On February 1, 2021, a putative 28 U.S.C. § 2241 habeas petition was filed in

23 this District [Dkt. 1, “Petition”] by Frederick Banks, a convicted federal criminal

24 currently incarcerated in the State of Louisiana at FCI-Oakdale and a frequent

25 litigant here and elsewhere. The Petition names as Respondents the Articles of

26 Impeachment pending against former President Donald J. Trump, both houses of the

27 United States Congress, the Central Intelligence Agency (“CIA”), the apparent

28 Warden of Banks’s custodial institution, a federal sentence and computation center

1 in Texas, and the Federal Bureau of Prisons.

2 The two-page Petition does not challenge the manner in which Banks’s current

3 criminal sentence is being executed. Rather, Banks asserts that he is being illegally

4 detained, because he is in custody pursuant to an unauthorized and “illegal FISA

5 warrant” and “detainer” that emanated from this District, as well as because of the

6 CIA’s alleged use of microwave hearing technology to control people. Banks also

7 asserts that former President Trump is “in custody” for habeas purposes due to the

8 pending impeachment proceedings brought against him and that Congress lacks the

9 power to pursue impeachment, because the articles of impeachment were brought in

10 the name of the “United States of America” rather than “United States” and because

11 former President Trump supposedly is immune from impeachment and criminal

12 prosecution. Finally, Banks complains about various conditions of confinement at

13 his institution, complaining that his mail was opened before he received it and/or has

14 not been sent to outside parties and that prison staff have blocked his electronic

15 requests and placed false information in his central file. As relief, Banks asks that

16 both he and former President Trump be released from custody, that “the FISA” be

17 disclosed, and that the Court order Congress to dismiss the Articles of Impeachment

18 as void and lacking in subject matter jurisdiction. Alternatively, Banks asks the

19 Court to transfer this case to the United States District Court for the District of

20 Columbia.

21 To resolve the Petition, the Court need not recount Banks’s prior criminal

22 history other than to take judicial notice, pursuant to Fed. R. Evid. 201, that in his

23 most recent criminal case, Banks was tried by jury in the United States District

24 Court for the Western District of Pennsylvania and was found guilty of multiple

25 federal counts of wire fraud and one federal count of aggravated identity theft on

26 November 8, 2019. Banks was sentenced on June 16, 2020, to consecutive terms of

27 80 months and 24 months imprisonment, to be followed by several years of

28 supervised release. See Docket in Case No. 2:15-cr-00168 (W.D. Pa.). Banks is

1 imprisoned at present pursuant to this Pennsylvania District Court conviction and

2 sentence. His assertions that, instead, he is in custody pursuant to a FISA warrant

3 and detainer and/or due to CIA electronic harassment are patently untrue.

4 Apart from his criminal status and related time spent in the federal criminal

5 court system, Banks also is “a notorious frequent filer” in the federal civil court

6 system, whose cases routinely are dismissed at the pleading stage as frivolous.

7 Banks v. Song, No. 1:17-cv-00339 (D. Haw. July 25, 2017) (Order Dismissing

8 Action and Denying In Forma Pauperis Application); see also Banks v. Cuevas, No.

9 4:17CV2460, 2018 WL 1942192, at *1 (N.D. Ohio April 25, 2018) (describing

10 Banks as a “frequent filer of frivolous actions in federal and state courts”); Banks v.

11 Song, No. 17-00093, 2018 WL 3130940, at *1-*2 (D. Guam Jun. 26, 2018) (finding

12 lawsuit filed by Banks related to his present criminal prosecution essentially was the

13 same suit he had filed in a number of other Districts and was “malicious” and

14 improperly filed); Banks v. New York Police Dept., No. 4:15-CV-75-RLW, 2015

15 WL 1414828, at *2-*3 (E.D. Mo. Mar. 26, 2015) (dismissing as legally frivolous

16 and malicious a mandamus action brought by Banks seeking relief based upon, inter

17 alia, the deaths of Eric Garner and Michael Brown).1 Pursuant to Fed. R. Evid. 201,

18 the Court has taken judicial notice of the case dockets and filings available through

19 the PACER and Westlaw systems relating to Banks, which show well over 1,000

20 unsuccessful federal civil proceedings initiated by Banks over the past decade.

21 When federal courts began dismissing Banks’s civil cases under 28 U.S.C. §

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1 Banks also has filed a number of actions in this District that have been summarily

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dismissed as frivolous. See Case Nos.: 2:15-cv-04225-ODW (GJSx); 2:16-cv-05544-JAK (KSx);

25 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

26 (GJS); 2:19-cv-08514-ODW (GJS); 2:19-cv-10468-ODW (GJS); 2:20-cv-00665-ODW (GJS);

2:20-cv-00680-ODW (GJS); 2:20-cv-00979-ODW (GJS); 2:20-cv-01138-ODW (GJS); 2:20-cv-

27 03640-ODW (GJS); 2:20-cv-05579-ODW (GJS); 2:20-cv-06288-ODW (GJS); 2:20-cv-06919-

ODW (GJS); 2:20-cv-07554-ODW (GJS); 2:20-cv-08191-ODW (GJS); 2:20-cv-08541-ODW

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(GJS); 2:20-cv-10769-ODW (GJS); and 2:21-00126-ODW (GJS).

1 1915(g) due to his numerous “strikes,” he turned to filing 28 U.S.C. § 2241 or other

2 types of petitions or motions in an attempt to avoid the Section 1915(g) limitation on

3 filing actions without paying the filing fee. See Banks v. Valaluka, No. 1:15-cv-

4 01935 (N.D. Ohio Nov. 18, 2015) (denying leave to proceed in forma pauperis and

5 dismissing purported mandamus action).) As he has been described:

6 Banks is a well-established, multi-district, frequent filer,

who has brought over 350 cases in the Northern District

7 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

9 New York, the District of Colorado, the District of

Arizona, the Southern District of Florida, the Middle

10 District of Florida, the Eastern District of North Carolina,

the Middle and Western Districts of Pennsylvania, the

11 Eastern District of Missouri, the Eastern District of New

Jersey, the Eastern District of Arkansas, the Western

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District of Oklahoma, the District of Utah, and the

13 District of Alaska. All of these cases were dismissed as

frivolous. He has been declared to be subject to three

14 strike provision of 28 U.S.C. § 1915(g) on numerous

occasions. Undeterred, Banks utilizes § 2241 to

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circumvent the application of § 1915(g).

16 Banks v. Greene, No. 4:18-cv-0884, 2018 WL 4615938, at *1 n.1 (N.D. Ohio, Sept.

17 25, 2018).

18 In addition to the numerous findings that Banks’s case-initiating filings are

19 frivolous, Banks has been designated as a vexatious litigant. See, e.g., Banks v.

20 Pope Francis, No. 2:15-cv-01400 (W.D. Pa. Dec. 8, 2015) (Order designating

21 Petitioner as a vexatious litigant). That vexatious litigant designation has been

22 ordered extended to cover filings made by Banks on behalf of any other persons,

23 whether as a purported “next friend” or otherwise, unless and until he has complied

24 with the requirements of the original vexatious litigant designation order. See

25 United States v. Miller, 726 Fed. App’x 107 (June 7, 2018) (affirming district court

26 order so extending scope of vexatious litigant order entered against Banks).

27 As any review, no matter how cursory, of cases available through the PACER

28 system shows, Banks has a long history of filing delusional and meritless actions on

1 his own behalf or supposedly on behalf of others with whom he has no connection,

2 often alleging some sort of mysterious electronic surveillance or, as here, use of

3 “microwave” technology by the CIA. See, e.g., Banks v. United States, No. 19-CV-

4 8829 (CM), 2019 WL 4933424, at *1 (S.D.N.Y. Oct. 7, 2019) (“Banks has a history

5 of filing actions on behalf of others without their permission, either by using the

6 ‘next friend’ device or by naming another individual as a co-plaintiff without that

7 individual’s authorization”; and finding that Section 2241 petition brought by Banks

8 on the purported behalf of climate activist Greta Thunberg was a “continuation of

9 [his] pattern of vexatious, frivolous, and nonmeritorious litigation” that warranted

10 summary dismissal); Banks v. Crooked Hilary, No. 2:16-cv-07954 (C.D. Cal. Oct.

11 26, 2016) (Order denying leave to proceed in forma pauperis and discussing some

12 of the prior decisions finding Petitioner’s actions to be frivolous and delusional);

13 Schlemmer v. Central Intelligence Agency, No. 2:15-cv-01583 (W.D. Pa. Dec. 15,

14 2015) (Order dismissing with prejudice a Section 2241 habeas petition filed by

15 Banks as a purported “next friend” on behalf of a criminal defendant with whom he

16 had no relationship); Valaluka, supra (Order at 2: “Banks has not limited his

17 frivolous filings to cases he files in his own name, but has expanded his efforts by

18 filing cases and motions on behalf of other prisoners, often without their knowledge

19 or consent.”).

20 There is and can be no viable claim for habeas relief alleged in the Petition

21 based on its subject matter. To the extent that Banks seeks habeas relief on his own

22 behalf, his assertions that he is in custody due to the CIA’s use of microwave

23 hearing technology and/or a FISA warrant or detainer are factually and legally

24 frivolous within the meaning of Denton v. Hernandez, 504 U.S. 25, 32-22 (1989),

25 and Neitzke v. Williams, 490 U.S. 319, 325 (1989). Banks is in custody because he

26 has been convicted in a different federal District of multiple federal crimes and is

27 serving his related sentence in yet another different District, not because of any

28 putative FISA warrant and/or electronic surveillance by the CIA. Banks is not in

1 custody in this District for habeas or any other purposes. Jurisdiction over a Section

2 2241 petition “lies in only one district: the district of confinement.” Rumsfield v.

3 Padilla, 542 U.S. 426, 443 (2004). Banks is not in custody in this District; he is

4 imprisoned in Louisiana. His allegations as to custody in this District based on

5 putative CIA signal transmissions and/or a warrant emanating from this District are

6 factually specious and legally unavailing. See Banks v. Canada, No. 9:20-CV-0064

7 (LEK), 2020 WL 1689859, at *2 (N.D.N.Y. April 7, 2020) (dismissing Section 2241

8 petition brought by Banks raising the same allegations he has made in prior cases

9 brought here and finding his allegation that the CIA’s alleged electronic signal

10 originated in the district insufficient to confer jurisdiction in the district, given that

11 his district of confinement was elsewhere).

12 Banks’s assertion that he may seek habeas relief on behalf of former President

13 Trump related to the pending impeachment proceedings is equally frivolous. Banks

14 has been told time after time that his various “habeas” actions motivated by news

15 events involving others do not belong in this District. Moreover, as Banks also has

16 been told over and over again, he has no right to purport to represent anyone else in

17 legal proceedings. Generally, non-lawyers may not represent other persons in court.

18 See, e.g., Simon v. Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir. 2008) (“courts

19 have routinely adhered to the general rule prohibiting pro se plaintiffs from pursuing

20 claims on behalf of others in a representative capacity”); Collinsgru v. Palmyra Bd.

21 Of Educ., 161 F.3d 225, 232 (3rd Cir. 1998). 28 U.S.C. § 1654 permits persons to

22 appear on a pro se basis only in their “own cases personally.” See Shephard v.

23 Wellman, 313 F.3d 963, 970 (6th Cir. 2002). Local Rule 83-2.10.2 expressly

24 prohibits a pro se litigant from delegating his representation to any other person.

25 Because Banks is not a lawyer authorized to practice in this Court, he may not

26 pursue relief on behalf of anyone else. See C.E. Pope Equity Trust v. United States,

27 818 F.2d 696, 697 (9th Cir. 1987) (a layperson acting in pro per may not appear or

28 seek relief on behalf of others); see also Banks as next friend of Waymer v. Eddy,

1 801 Fed. App’x 50 (3rd Cir. April 14, 2020) (affirming dismissal of Section 2241

2 petition brought by Banks on behalf of others and finding that not only did Banks

3 lack standing to seek relief on behalf of others as a next friend, but that “as a

4 layperson, Banks cannot represent other parties,” even if he is purporting to act as a

5 next friend); Banks v. NPR New Morning Edition, 795 Fed. App’x 92 (3rd Cir. Feb.

6 25, 2020) (affirming dismissal of Section 2241 petition brought by Bank on behalf

7 of Anthony Bourdain and finding that “Banks cannot litigate on behalf of Bourdain

8 or his estate”).

9 If Banks wishes to challenge his present criminal custody, there are established

10 avenues for him to do so, but none of them include bringing repeated and frivolous

11 28 U.S.C. § 2241 habeas actions outside of the District of conviction based on

12 matters having nothing to do with his present conviction and/or sentence.2 The

13 matters alleged in the Petition simply do not involve situations in which Section

14 2241 federal habeas jurisdiction or any other basis for federal jurisdiction properly

15 can be invoked,3 much less in a District having nothing to do with him or the

16 matters of which he complains.4

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2 Banks’s bald assertion that the 28 U.S.C. § 2255 remedy is inadequate and ineffective, and

19 he therefore may seek release under Section 2241, is unpersuasive, to say the least. Banks’s

appeal of his criminal conviction remains pending in the United States Court of Appeals for the

20 Third Circuit (No. 20-2235), and thus, his Section 2255 remedy remains available. In any event,

as Banks is not confined in this District, he cannot pursue Section 2241 relief here on the theory

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that Section 2255 has become inadequate and ineffective.

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3 Banks’s complaints about his mail and other alleged actions taken by prison staff are

23 complaints about the conditions of his confinement and not cognizable in federal habeas review.

See Preiser v. Rodriguez, 411 U.S. 475, 487-88 (1973). His assertion that success on these

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conditions of confinement claims would lead to a speedier release, and that the claims thus may be

25 heard under Section 2241, is frivolous.

26 4 The Court notes that Banks contemporaneously filed an identical Section 2241 petition in

the District in which he actually is in custody, namely, the Western District of Louisiana. See

27 Case No. 2:21-cv-00245-JDC-KK, Dkt. 1. Banks’s tactic of submitting the same petition to two

different courts at the same time – one of which has nothing to do with him – is rank forum

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shopping and is improper.

1 In addition, the Court declines Banks’s request that it transfer this action to the

2 || United States District Court for the District of Columbia. If Banks believed that this

3 || Petition properly can be heard in that District, he should have submitted it there in

4 || the first instance. As it stands, however, there is no apparent basis for transferring

5 || this case to yet another District that has nothing to do with his present criminal

6 || conviction and custody.

7 Accordingly, IT IS ORDERED that: the Petition is dismissed for lack of

8 || jurisdiction; and Judgment shall be entered dismissing this action.

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10 || DATED: February 11, 2021

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12 UNITED STATES DISTRICT JUDGE

13 || Submitted by:

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16 || GAIL J. STANDISH

7 UNITED STATES MAGISTRATE JUDGE

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