Case 2:13-cv-01712-NBF-LPL Document 10 Filed 03/07/14 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

FREDERICK BANKS, )
)
Plaintiff, ) Civil Action No. 2:13-cv-1712
)
v. ) Judge Nora Barry Fischer
) Chief Magistrate Judge Lisa Pupo
DICTORATE, SCIENCE & ) Lenihan
TECHNOLOGY CENTER (CIA), et )
al., )
)
Defendants. )
)

REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is respectfully recommended that Plaintiff’s Complaint be dismissed with

prejudice as frivolous and for failing to state a claim upon which relief may be granted

pursuant to 28 U.S.C. §1915(e)(2)(B)(i) and (ii).

II. REPORT

Frederick Banks (“Plaintiff”) is a federal prisoner currently confined at the

Northeast Ohio Correctional Center in Youngstown, Ohio. Prior to his incarceration, he

initiated this action in the United States District Court for the Middle District of

Pennsylvania on October 21, 2013.1 Along with his Complaint, he submitted for filing a

1
At the time Plaintiff instituted this civil action, he was not incarcerated, having been
released sometime in May of 2013. He was arrested on October 23, 2013 for alleged
violations of the conditions of supervised release. See Docket No. 2:04-cr-176,
W.D.Pa, ECF Nos. 673, 676, 702. After several hearings, on 11/26/13, Judge Conti
entered Judgment finding Plaintiff violated a condition of supervised release and
sentenced him to 14 months imprisonment, with six months of supervised release to be
served at a community confinement center. Id., ECF No. 715.

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Motion for Leave to Proceed in forma pauperis. The case was transferred to this Court

on December 2, 2013, without ruling on the Motion for Leave to Proceed in forma

pauperis (ECF No. 2), thus leaving that motion for the transferee court to decide. This

Court subsequently granted Plaintiff’s request to proceed in forma pauperis, and now,

conducts the initial screening of the Complaint required by 28 U.S.C. §1915(e)(2).

A. Factual Background

Plaintiff is a former federal inmate who was incarcerated in the Bureau of Prisons

from June 2004 to May 2013. (Compl. ¶1, ECF No. 1.) Plaintiff asserts a claim in

excess of $300 million in damages against a litany of government officials and federal

agencies (Compl., ECF No. 1 at 5 & 17), and seeks a writ of mandamus and injunctive

relief against several of them.

In support, Plaintiff alleges, inter alia, that while he was incarcerated, Defendants

stole his Ferrari 355 and conspired to keep him from reporting it using a technology

know to the public at large as “Voice to Skull” and “Remote Neural Monitoring.” (Compl.

¶1.) Plaintiff further alleges that the Dictorate at the CIA Science and Technology

Center authorized a terror campaign in the form of electronic harassment using Voice to

Skull and MKUltra technology to harass him at work and in all aspects of his daily life,

because he filed over 800 lawsuits against the government. (Compl. Preamble, ECF

No. 1 at 3-4.) Plaintiff also alleges that the NSA director, and officials and their agents

named in the Complaint used Voice to Skull technology to harass and annoy him in his

daily life, and in the practice of his Wiccan religion, “because of their propensity as

Christians and their inherent belief that Pagans and Wiccans and practioners (sic) of

Witchcraft are ‘Evil’.” (Id., ECF No. 1 at 4.)

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In addition, Plaintiff requests that the U.S. Attorney be compelled to present

evidence of this criminal wrongdoing to a grand jury pursuant to 18 U.S.C. §3332, and

that the Secretary of the Interior be compelled to effect the arrest of these agents, so

that they can be prosecuted to the full extent of the law, citing to the Sioux Treaty of

1868, 15 Stat. 635 (1868). (Id.) Plaintiff maintains that the Defendants’ activities

violated his rights under the First, Fourth, Fifth, and Eighth Amendments, and created a

state religion—namely, Christianity—in violation of the Establishment Clause of the First

Amendment. (Id.) Plaintiff further avers that Defendants Clapper, Blair, Gompert,

Bush, and Obama did not stand idly by but participated in the day to day running of this

harassment by monitoring such activities. (Id.)

In his Complaint, Plaintiff also requests class action certification under Rule 23

and the appointment of class counsel, for a class consisting of one million persons

currently being harassed by the government and NSA using Voice to Skull and Remote

Neural Monitoring technology and individuals under the NSA’s behavioral modification

program. (Id., ECF No.1 at 5.) Plaintiff avers that class certification is necessary to

securing damages in the amount of $10,000 against the United States for the

negligence of Defendants pursuant to the Little Tucker Act because defendants had a

duty as officers of the United States to keep Plaintiff and the class from harm. As a

result of that negligence, Plaintiff alleges that he and the class were damaged in the

amount of $200 million. (Id.)

In addition, Plaintiff alleges that Defendants at SIS Davenport and the FCC

Forrest City were all aware that Voice to Skull technology was being operated against

him but did nothing to intervene or stop it. (Compl. ¶8.) Plaintiff avers that these

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Defendants also possessed actual knowledge of the agents or agencies that actually

possessed Banks’ stolen Ferrari. (Id.) Plaintiff contends that this “activity” violated the

Electronic Communications Act, as amended, the Privacy Act, his First Amendment

right to privacy, and was an unlawful invasion without probable cause in violation of the

search and seizure clause of the Fourth Amendment. (Compl. ¶9.)

As a result of the alleged acts of Defendants, Banks asserts claims for alleged

violations of his due process rights and rights under the First and Fourth Amendments;

an alleged violation of his property rights as an American Indian under the Northwest

Ordinance of 1787, as well as the “bad men” clause of the Sioux Treaty of Fort Laramie,

15 Stat. 635 (1868); negligent and intentional interference with his contractual relations

with companies with which he did business; negligent and intentional infliction of

emotional distress; negligence; wanton infliction of pain, cruel and unusual punishment;

gross negligence; strict liability; and alleged violations of the Tucker Act and Little

Tucker Act. (Compl. ¶10.)

For relief, Banks seeks a writ of mandamus ordering Congressman Mike Doyle to

further investigate the other Defendants’ use of Voice to Skull and Remote Neural

Monitoring technology to harass him, as well as an order enjoining Defendants from

employing Voice to Skull technology, harassing electronic communications and non-

lethal weapons against him. (Compl. ¶17.) In addition, Banks seeks monetary relief in

the amount of $100,000,000.00, plus $27,000.00 in actual damages for the vehicle, and

seeks an order of court directing Defendants to either return the vehicle to him or issue

a check for replacement of the Ferrari vehicle, along with interest and costs. (Compl.

¶¶10, 17.)

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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.”)

(quoting Higgins, 293 F.3d at 688). 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)(2). 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,

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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)).

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:

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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 plaintiff must show
that the allegations of his or her complaints are plausible.
See Id. at 1949-50; see also Twombly, 505 U.S. at 555, & n.
3.

Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). In making this

determination, the court must accept as true all allegations of the complaint and all

reasonable factual inferences must be viewed in the light most favorable to the plaintiff.

Angelastro v. Prudential-Bache Sec., Inc., 764 F.2d 939, 944 (3d Cir. 1985). “To the

extent that a complaint filed in forma pauperis which fails to state a claim lacks even an

arguable basis in law, Rule 12(b)(6) and §1915([e]) both counsel dismissal.” Neitzke,

490 U.S. at 328 (footnote omitted).

C. Discussion

In his Complaint, Banks is attempting to re-litigate claims which have previously

been conclusively resolved by federal courts both in this District, the Middle District of

Pennsylvania, and the Eastern District of Arkansas, within the last nine months. In

conducting the initial screening required under Section 1915(e)(2), this Court possesses

the authority to apply the doctrines of claim preclusion, also referred to as res judicata,

and issue preclusion, also referred to as collateral estoppel, sua sponte. Guider v.

Mauer, Civ. No. 1:CV-09-1915, 2009 WL 4015568, *1 (M.D.Pa. Nov. 19, 2009) (citing

Gleash v. Yuswak, 308 F.3d 758, 760 (7th Cir. 2002); Ezekoye v. Ocwen Federal Bank

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FSB, 179 F. App’x 111, 114 (3d Cir. 2006) (non-precedential)); see also Arizona v.

California, 530 U.S. 392, 412 (2000) (a court may dismiss the action sua sponte, even

though a preclusion defense has not been raised, in special circumstances such as

where “a court is on notice that it has previously decided the issue presented.”) The

Supreme Court noted that “[t]his result is fully consistent with the policies underlying res

judicata: it is not based solely on the defendant’s interest in avoiding the burdens of

twice defending a suit, but is also based on the avoidance of unnecessary judicial

waste.” Arizona, 530 U.S. at 412 (citation omitted). Indeed, in Ali v. Higgs, 892 F.2d

438, 440 (5th Cir. 1990), the court of appeals raised sua sponte the affirmative defense

of res judicata in an in forma pauperis action in which the defendants had yet to enter

their appearance or file an answer to the complaint. The Ali court explained: “Where . .

. the affirmative defenses [of limitations and res judicata] are both obvious and facially

meritorious[,]” courts “should have the latitude in the absence of the defendant, . . . to

effect the salutary principles of section 1915(d) by ending the litigation where the

plaintiff has no basis on which to succeed.” Id. at 440.2

In the case at bar, the doctrines of claim preclusion and issue preclusion apply

and compel dismissal of all of the previously litigated claims that Banks asserts in this

lawsuit. “’Claim preclusion . . . gives dispositive effect to a prior judgment if the

particular issue, albeit not litigated in the prior action, could have been raised.’” Bradley

v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1070 (3d Cir. 1990) (quoting McNasby v.

2
Ali was decided prior to the Prison Litigation Reform Act of 1995, Pub. L. 104-134, 110
Stat. 1321 (Apr. 26, 1996), which amended 28 U.S.C. §1915 by moving the pre-
screening language (i.e., court shall dismiss the case at any time if it determines that
the action is frivolous or malicious, or fails to state a claim on which relief may be

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Crown Cork & Seal Co., 888 F.2d 270, 275 (3d Cir.1989)). Claim preclusion will apply

where the following three factors have been established: “’(1) a final judgment on the

merits in a prior suit involving (2) the same claim and (3) the same parties or their

privies.’” United States v. 5 Unlabeled Boxes, 572 F.3d 169, 173 (3d Cir. 2009) (quoting

EEOC v. United States Steel Corp., 921 F.2d 489, 493 (3d Cir. 1990)).

On the other hand, issue preclusion bars re-litigation of an issue that has already

been actually litigated. Peloro v. United States, 488 F.3d 163, 174-75 (3d Cir. 2007).

As the court of appeals explained in Peloro:

“The prerequisites for the application of issue preclusion are

satisfied when: ‘(1) the issue sought to be precluded [is] the
same as that involved in the prior action; (2) that issue [was]
actually litigated; (3) it [was] determined by a final and valid
judgment; and (4) the determination [was] essential to the
prior judgment.’” Burlington Northern Railroad Co. v.
Hyundai Merch. Marine Co., 63 F.3d 1227, 1231–32 (3d
Cir.1995) (quoting In re Graham, 973 F.2d 1089, 1097 (3d
Cir.1992)); see also Parklane Hosiery Co. v. Shore, 439 U.S.
322, 326 n. 5, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979). In its
classic form, collateral estoppel also required “mutuality”—
i.e., that the parties on both sides of the current proceeding
be bound by the judgment in the prior proceeding. Parklane
Hosiery, 439 U.S. at 326–27, 99 S.Ct. 645. Under the
modern doctrine of non-mutual issue preclusion, however, a
litigant may also be estopped from advancing a position that
he or she has presented and lost in a prior proceeding
against a different adversary. See Blonder–Tongue Labs.,
Inc. v. Univ. of Ill. Found., 402 U.S. 313, 324, 91 S.Ct. 1434,
28 L.Ed.2d 788 (1971); Parklane Hosiery, 439 U.S. at 329,
99 S.Ct. 645. For defensive collateral estoppel—a form of
non-mutual issue preclusion—to apply, the party to be
precluded must have had a “full and fair” opportunity to
litigate the issue in the first action. See Parklane Hosiery,
439 U.S. at 328, 332, 99 S.Ct. 645; Blonder–Tongue Labs.,
402 U.S. at 331, 333, 91 S.Ct. 1434.

granted) to subsection (e)(2).

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Id. at 174-75 (footnote omitted). Federal common law principles of issue preclusion are

applied here since this Court is examining the preclusive effect of prior federal court

actions. Id. at 175 n. 11 (citing Paramount Aviation Corp. v. Agusta, 178 F.3d 132, 145

(3d Cir. 1999)).

All of the requirements for application of claim/issue preclusion are present in the

case at bar. Plaintiff previously filed an identical complaint in Banks v. Dictorate,

Science & Technology Center (CIA), et al., in the Middle District of Pennsylvania at

Docket No. 1:13-cv-2664 (“Middle District Complaint”), against the same defendants

and asserting the exact same facts and claims as those presented in the case at bar,

with one exception—the Complaint in the instant matter names several additional

defendants not named in the Middle District Complaint. Those defendants are “10 or

more CIA Scientist and Staff Members Monitoring Plaintiff”; “Office of the CIA Inspector

General”; and “USA Inspector General”. In the civil action filed at Docket No. 1:13-cv-

2664, the district court dismissed the Middle District Complaint with prejudice as

frivolous and for failing to state a claim upon which relief may be granted pursuant to 28

U.S.C. §1915(e)(2)(B)(i) and (ii). See Order dated 12/5/13, ECF No. 4, and Report &

Recommendation, ECF No. 3, in Docket No. 1:13-cv-2664, M.D.Pa.3

In addition, this Court previously addressed and dismissed as frivolous: (1)

Plaintiff’s claim that the government seized his Ferrari and failed to return it to him, see

Report & Recommendation at 4-5, ECF No. 7, and Memorandum Order dated 11/6/13

3
The Middle District recently dismissed as frivolous another civil action filed by Banks
asserting similar claims against different defendants. See Banks v. Director, Office of
Science & Tech., Behavioral Modification Unit, Civil No. 1:14-cv-5, 2014 U.S. Dist.
LEXIS 8914 (M.D.Pa. Jan. 6, 2014).

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(ECF No. 10), in Banks v. Unknown Named Number of U.S. Postal Inspectors, et al.,

Docket No. 2:13-cv-1198, W.D.Pa. (noting that this claim was previously addressed by

Judge Conti in his criminal case at Docket No. 2:04-cr-176, ECF Nos. 552 & 559,

W.D.Pa.); (2) Plaintiff’s claim that many of the same defendants were harassing him

through the use of Voice to Skull and Remote Neural Monitoring technology, see Report

& Recommendation at 5-7, ECF No. 7, and Memorandum Order dated 11/6/13 (ECF

No. 10), in Banks, Docket No. 2:13-cv-1198, W.D.Pa. (noting that Banks asserted

almost identical claims as those asserted in Docket No. 2:13-cv-1025, W.D.Pa. against

some of the same defendants, which this Court found to be frivolous (Report and

Recommendation, ECF No. 8)); see also Report & Recommendation at 11-12, ECF No.

7, in Banks v. State Farm, et al., Docket No. 13-1151, W.D.Pa. (noting four other district

court cases brought by Banks, three in the Western District of Pennsylvania and one in

the Eastern District of Arkansas,4 involving almost identical claims which the courts

found to be frivolous); (3) Plaintiff’s damage claims under the Sioux Treaty of Fort

Laramie and the Northwest Ordinance, see Report and Recommendation at 9-10, ECF

No. 7, in Banks v. State Farm, et al., Docket No. 13-1151, W.D.Pa.; (4) Plaintiff’s

request for an order directing the U.S. Attorney to present evidence of alleged criminal

wrongdoing to a grand jury pursuant to 18 U.S.C. §3332, see id. at 10; and (5) Plaintiff’s

request for writ of mandamus against Congressman Doyle, see id. at 8 (also noting that

dismissal was warranted for failing to allege any facts to show a plausible mandamus

action under Twombly).

4
See Order dated 7/3/13, ECF No. 7, Docket No. 4:13-cv-382-BSM, E.D.AR.

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Thus, (1) the issues/claims sought to be precluded are the same as those

involved in the prior actions; (2) the issues/claims were actually litigated; (3) the

issues/claims were determined by a final and valid judgment; and (4) the determinations

were essential to the prior judgments. Therefore, the claims against the Defendants are

barred by the doctrines of claim and issue preclusion, and therefore, should be

dismissed as frivolous and for failure to state a claim upon which relief may be granted.

As to the defendants newly named in this action—10 or more CIA Scientist and

Staff Members monitoring Plaintiff; Office of the CIA Inspector General, and USA

Inspector General—the claims against them are likewise barred by the modern doctrine

of non-mutual issue preclusion. See Peloro, 488 F.3d at 175. It is clar from the

decisions in the prior cases that Plaintiff had a full and fair opportunity to litigate

Defendants’ alleged use of Voice to Skull and Remote Neural Monitoring technology to

harass him. Even if Plaintiff’s claims against the newly added defendants were not

barred by issue preclusion, they should be dismissed as frivolous. The underpinning of

Plaintiff’s claims is that the various officials are using Voice to Skull and Remote Neural

Monitoring technology to harass him. Such allegations are frivolous as they rely on

“’fantastic or delusional scenarios.’” DeGrazia v. Fed. Bureau of Investigation, 316 F.

App’x 172, 173 (3d Cir. 2009) (quoting Neitzke, 490 U.S. at 328).5 Plaintiff fails to

5
See also Pavalone v. Bush, No. 3:11-1620, 2012 U.S. Dist. LEXIS 61974 (M.D. Pa.
March 27, 2012) (“Within the Third Circuit, courts have found that allegations which are
considered fanciful, fantastic, and delusional are to be dismissed as frivolous.”)
(numerous citations omitted); Frazier v. Southwoods State Prison, No. 06-0096, 2006
U.S. Dist. LEXIS 20832 (D. N.J. April 17, 2006) (“In accordance with the Supreme
Court’s guidance articulated in Neitzke and Denton, courts across the nation dismissed
claims based on sets of facts that were qualified as ‘fanciful, fantastic and delusional.’”)
(numerous citations omitted); Simmons v. Beard, No. 3:13-0254, 2013 U.S. Dist. LEXIS

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assert any facts to show or suggest what actions the newly named defendants allegedly

took, or when these actions allegedly occurred, but merely lumps them together in his

generic reference to “Defendants” throughout his disorganized ramblings and

conclusory allegations. As these allegations were previously determined to be frivolous

and, in any event, are insufficient under Twombly, the Court finds the claims against the

newly added defendants should also be dismissed as frivolous and for failure to state a

claim upon which relief may be granted.

Similarly, Plaintiff’s request for class action certification under Rule 23 and the

appointment of class counsel is completely lacking in an arguable factual or legal

foundation. The claims which he intends to assert on behalf of the class have been

deemed frivolous by several courts. Moreover, a purported class described as “one

million persons currently being harassed by the government and NSA using Voice to

Skull and Remote Neural Monitoring technology and individuals under the NSA’s

behavioral modification program” is delusional, and thus, frivolous.

This Court recognizes that the United States Court of Appeals for the Third

Circuit has held that, in civil rights cases, a court must give a plaintiff the opportunity to

69814 (M.D. Pa. May 16, 2013) (allegations that microchips and microchip batteries
have been implanted into plaintiff for purposes of mind control and torture were subject
to dismissal as frivolous); Noble v. Becker, No. 03-906-KAJ, 2004 U.S. Dist. LEXIS 480
(D. Del. Jan. 15, 2004) (claims that government officials and others had engaged in a
vast conspiracy to violate his constitutional rights were delusional); Williams v.
Werseter, No. 94-3839, 1994 U.S. Dist. LEXIS 8901 (E.D. Pa. June 30, 1994) (plaintiff’s
claim that he had uncovered evidence of a conspiracy by the former mayor to commit
sabotage and espionage in order to establish ecclesiastical law and in some way
interfere with U.S. commerce were fanciful, fantastic, or delusional); Robinson v. Love,
155 F.R.D. 535 (E.D. Pa. 1994) (where plaintiff alleged that he was subjected to
witchcraft and attempts to poison him with cyanide, the allegations were fanciful,
fantastic or delusional).

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amend a deficient complaint—regardless of whether the plaintiff requests to do so—

when dismissing a case for failure to state a claim, unless doing so would be inequitable

or futile. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247,

251 (3d Cir. 2007). Because this Court has determined that the claims against the

Defendants are frivolous, the Court finds it would be futile to allow Banks to amend his

Complaint, especially where, as here, he has tried on numerous occasions in various

federal courts to raise the same claims and they were dismissed each time as frivolous.

See Lopez v. Smith, 203 F.3d 1122, 1127 n. 8 (9th Cir. 2000) (“When a case may be

classified as frivolous or malicious, there is, by definition, no merit to the underlying

action and so no reason to grant leave to amend.”).

D. Conclusion

For the reasons set forth above, the Court recommends that Plaintiff’s Complaint

be dismissed with prejudice as frivolous and for failing to state a claim upon which relief

can be granted pursuant to 28 U.S.C. §1915(e)(2)(B)(i) and (ii).

In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C),

and rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days

from the date of service of a copy of this Report and Recommendation to file objections.

Any party opposing the objections shall have fourteen (14) days from the date of service

of objections to respond thereto. Failure to file timely objections will constitute a waiver

of any appellate rights.

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Dated: March 7, 2014 BY THE COURT:

LISA PUPO LENIHAN

Chief U. S. Magistrate Judge

cc: Frederick Banks

P.O. Box 42303
Pittsburgh, PA 15203
Via First Class Mail

Frederick Banks,
USMS #05711-068
Northeast Ohio Correctional Center
2240 Hubbard Road
Youngstown, OH 44505
Via First Class Mail

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