Banks v. U.S. Postal Inspection Serv.

FREDERICK H. BANKS, Plaintiff, v. UNITED STATES POSTAL INSPECTION SERVICE, et al., Defendants.

CASE NO. 4:18CV00596

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

August 31, 2018

PEARSON, J.

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION AND ORDER

[Resolving ECF Nos. 5, 6, 9]

This case was removed from the Mahoning County Court of Common Pleas by Defendant United States Postal Inspection Service and Postal Inspector David Anderchak (collectively "USPIS"). ECF No. 1. After removal, USPIS filed a motion to dismiss for failure to state a claim, ECF No. 5, and for an order requiring pro se Plaintiff Frederick H. Banks to pay the removal filing fee, ECF No. 6. Plaintiff filed a combined opposition to both motions. ECF No. 7, and USPIS replied to Plaintiff's opposition to its motion to dismiss, ECF No. 8.

Also before the Court is Plaintiff's motion to disqualify USPIS's counsel in this case, Assistant U.S. Attorney Renee A. Bacchus. ECF No. 9. USPIS did not respond to the motion. Plaintiff's motion to disqualify is denied.¹

For the reasons contained herein, this case is dismissed.

I. Background

A. Procedural Background

While incarcerated at Northeast Ohio Correctional Center ("NEOCC"), Banks filed the instant action in the Mahoning County Court of Common Pleas (Case No. 2018-CV-00267) against USPIS, Stg Officer Moore, Ms. Cox, M. Starkey, and Case Manager Jones (collectively "Defendants").² See ECF No. 1-1. USPIS removed this case pursuant to 28 U.S.C. §§ 1441 and 1442(a)(1). ECF No. 1 at PageID #: 2, ¶ 4. In the notice of removal, USPIS asserts that Banks has been declared a vexatious litigator in Ohio pursuant to Ohio Rev. Code § 2323.52, and is obligated to obtain leave of court prior to initiating proceedings in a state court in Ohio. Id. at PageID #: 1 n.1. The Mahoning County Court of Common Pleas accepted Banks's complaint forfiling and issued a summons but had not yet ruled on his motion for leave to file when the USPIS removed the case. Id.

While a prisoner, Banks has filed hundreds of actions in federal district courts across the United States. See Cook v. Fed. Bureau of Prisons, No. 5:18 CV 187, 2018 WL 2322868, at *1 (N.D. Ohio May 21, 2018) (Banks filed over 285 federal cases in nineteen different districts); Banks v. Cuevas, No. 4:17CV2460, 2018 WL 1942194, at *1 (N.D. Ohio Apr. 25, 2018) (Banks is a frequent filer of frivolous actions in federal and state courts.); see also Banks v. Cocas, No. 4:17CV1512, 2017 WL 4020376, at *3 n.1 (N.D. Ohio Sept. 13, 2017) (compiling cases filed by Banks). More than three of Banks's actions have been dismissed as frivolous, so he is barred from bringing an action in federal court in forma pauperis unless he is "under imminent danger of serious physical injury." 28 U.S.C. § 1915(g). In his state court complaint, Plaintiff does not allege that he is in imminent danger of serious physical injury.³

B. Factual Background

In his state court Complaint, Banks alleges that Defendants delayed and obstructed his mail at NEOCC. See ECF No. 1-1 at PageID #: 6. Plaintiff claims that he received a letter from "H.R.,"⁴ but Moore ordered Starkey to reject and return the letter as "inmate to inmate" correspondence. Id. at PageID #: 6. Plaintiff claims that he is not actually an inmate, but is confined at NEOCC because of "civil commitment" under 18 U.S.C. § 4241(d). Id. at PageID #: 7. On this basis, Banks claims in Count 1 that Starkey and Moore engaged in a civil conspiracy with Cox to delay and obstruct Banks's mail. Id. at PageID #: 6-7. In Count 2, Banks alleges that Moore and Starkey invaded his privacy by handling his mail as described in Count 1. Id. at PageID #: 7-8.

In Count 3, Banks raises a claim under 42 U.S.C. § 1983 claim, alleging that Moore and Starkey, acting under color of state law, violated the First and Fourteenth Amendments by delaying and obstructing his mail at NEOCC. Id. at PageID #: 8. In Count 4, Plaintiff raises a 42 U.S.C. § 1985 claim, alleging that Moore, Starkey, and Cox conspired to delay and obstruct his mail at NEOCC, and conspired to improperly classify him as "sentenced" and "black," though he is not convicted and is an American Indian. Id. at PageID #: 8-9.

In Count 5, pursuant to 28 U.S.C. § 1361, Plaintiff seeks a writ of mandamus to compel the USPIS to investigate his claims that Moore, Starkey, and Cox delayed and obstructed his mail while he was housed at NEOCC. Id. at PageID #: 8-9.

Banks asks the Court to grant his mandamus petition against USPIS, and to award him $78,000.00 in damages and $210,000.00 in punitive damages. Id. at PageID #: 9.

II. Standard of Review

Pro se pleadings are liberally construed by the Court. Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972). Nevertheless, the district court is required under 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A to review these complaints and to dismiss any such complaint that the Court determines is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. See Hill v. Lappin, 630 F.3d 468, 470 (6th Cir. 2010). Moreover, while some latitude must be extended to pro se plaintiffs with respect to their pleadings, the Court is not required to conjure unpleaded facts or construct claims against defendants on behalf of a pro se plaintiff. See Grinter v. Knight, 532 F.3d 567, 577 (6th Cir. 2008) (citation omitted); Thomas v. Brennan, No. 1:18 CV 1312, 2018 WL 3135939, at *1 (N.D. Ohio June 26, 2018) (citing Beaudett v. City of Hampton, 775 F.2d 1274, 1277 (4th Cir. 1985) and Erwin v. Edwards, 22 F. App'x. 579, 580 (6th Cir. 2001)).

In order to withstand scrutiny under § 1915(e)(2)(B)(ii) and § 1915A, "'a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Hill, 630 F.3d at 470-71 (holding that the Fed. R. Civ. P. 12(b)(6) dismissal standard articulated in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) governs dismissals for failure to state a claim under § 1915(e)(2)(B) and 1915A) (quoting Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570)). Thus, a complaint fails tostate a claim on which relief may be granted when it lacks "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Id. at 471.

In analyzing the sufficiency of Plaintiff's complaint under § 1915(e)(2)(B), § 1915A, or Rule 12(b)(6), the Court considers the requirements of Fed. R. Civ. P. Rule 8(a)(2) and Iqbal/Twombly. Rule 8 requires only that a complaint contain a "short and plain statement of the claim showing that the pleader is entitled to relief" and does not require detailed factual allegations. That said, the pleader must allege "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 677-78 (citing Rule 8; Twombly, 550 U.S. at 555). A complaint must contain more than "'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action[.]'" Id. at 678 (quoting Twombly, 550 U.S. at 570). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the Defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556).

III. Law and Analysis

Banks's claims fall into three categories: (1) violation (and conspiracy to violate) Plaintiff's rights under the federal constitution and laws by Moore, Starkey, and Cox with respect to the handling of his mail (Counts 1, 3, and 4);⁵ (2) invasion of his privacy by Moore, Starkey,and Cox (Count 2); and (3) a mandamus petition against defendant USPIS (Count 5). USPIS moves to dismiss all counts. ECF No. 5.

A. Banks Fails to Allege a Constitutional Violation (Counts 1 and 3)

Pursuant to 42 U.S.C. § 1983, Banks alleges that Moore, Starkey, and Cox, acting under color of state law, conspired to violate and indeed violated his rights under the federal constitution and federal law with respect to the handling of his mail. ECF No. 1-1 at PageID #: 8-9, ¶¶ 3, 5. Section 1983 provides a cause of action against government officials who, while acting under color of state law, deprive the claimant of rights secured by the United States Constitution or laws. Rhinehart v. Scutt, 894 F.3d 721, 735 (6th Cir. 2018) (citation omitted). To state a claim under § 1983, Banks must allege that a person acting under color of state law deprived him of rights, privileges, or immunities secured by the Constitution of the United States. West v. Atkins, 487 U.S. 42, 48 (1988) (citations omitted).

During all times relevant to Plaintiff's claims, he was housed at NEOCC. ECF No. 5-1 at PageID#: 32-33. Plaintiff claims that Moore and Starkey, apparently employees of NEOCC, are Ohio prison officials acting under color of state law. See ECF No. 1-1 at PageID #: 8, ¶ 6. Even construed liberally, however, the Complaint alleges no facts to support this allegation. See Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987) (court not required to accept unwarranted factual inferences); see also Lillard v. Shelby Cty. Bd. Of Educ., 76 F.3d 716 (6th Cir. 1996) (court not required to accept summary allegations in determining whether a complaint states a claim for relief). Instead, the Complaint flatly asserts, "As prison officials of the State of Ohio, Moore and Starkey act under color of state law and were acting as such when they rejectedand unlawfully censored plaintiff's letter in violation of the First Amendment." ECF No. 1-1 at PageID#: 8.

Banks, under criminal indictment in United States District Court, Western District of Pennsylvania (Case No. 2:15-cr-168), was housed at NEOCC in connection with that indictment as a pretrial detainee in the custody of the U.S. Marshals Service when the events at issue in this case transpired.⁶...