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Report and Recommendation I. Recommendation
Report and Recommendation I. Recommendation
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. )
)
I. RECOMMENDATION
prejudice as frivolous and for failing to state a claim upon which relief may be granted
II. REPORT
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,
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
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
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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
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
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
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
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
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
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
his submissions in federal court. This means that the Court must liberally construe the
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
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
(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
Pursuant to 28 U.S.C. §1915(a), Plaintiff requested and has been granted leave
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
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)
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
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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,
C. Discussion
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
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
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).
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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
All of the requirements for application of claim/issue preclusion are present in the
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 &
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
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
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
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
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
Similarly, Plaintiff’s request for class action certification under Rule 23 and the
foundation. The claims which he intends to assert on behalf of the class have been
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
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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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
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
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
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
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Frederick Banks,
USMS #05711-068
Northeast Ohio Correctional Center
2240 Hubbard Road
Youngstown, OH 44505
Via First Class Mail
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