Frederick Banks v. NPR News ( 2020 )

BLD-102 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 19-3212
___________
FREDERICK H. BANKS,
Appellant
v.
NPR NEWS MORNING EDITION; NATIONAL PUBLIC RADIO; DIRECTOR
CENTRAL INTELLIGENCE AGENCY; CENTRAL INTELLIGENCE AGENCY;
WARDEN ALLEGHENY COUNTY JAIL
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(W.D. Pa. Civil Action No. 2:19-cv-01168)
District Judge: Honorable Cathy Bissoon
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
January 30, 2020
Before: AMBRO, GREENAWAY, Jr., and BIBAS, Circuit Judges
(Opinion filed: February 25, 2020)
_________
OPINION *
_________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Frederick Banks, proceeding pro se, appeals an order of the United States District
Court for the Western District of Pennsylvania dismissing his habeas petition pursuant to
vexatious-litigant orders. For the reasons that follow, we will summarily affirm the
judgment of the District Court.
On November 7, 2019, Banks was found guilty after a federal jury trial of wire
fraud and aggravated identity theft. He has yet to be sentenced. Prior to his conviction,
Banks filed a form petition for a writ of habeas corpus under 28 U.S.C. § 2241 on behalf
of himself and as “next friend” to the estate of Anthony Bordain. 1 Banks alleged that he
and Bourdain, who is deceased, were “under illegal FISA [Foreign Intelligence
Surveillance Act] electronic surveillance which ultimately resulted in not a ‘suicide’ but a
remote assassination under Banks’ theory.” Petition at 7. He stated that he and Bordain
had been targeted by the CIA. Banks sought disclosure of all FISA orders and claimed
violations of due process and federal law.
Banks also claimed that NPR News, which he named as a respondent, has been
falsely reporting Bourdain’s death as a suicide. In addition, he claimed that he was being
unlawfully held beyond his maximum possible sentence in pre-trial detention because of
the illegal FISA warrants and sought his release. He alleged that he has a high-pitched
tone in each ear and that he is under illegal electronic surveillance.
1
Banks filed the petition in the United States District Court for the District of Columbia
and it was transferred to the United States District Court for the Western District of
Pennsylvania.
2
The District Court dismissed the case under vexatious-litigant orders entered in
two other actions filed by Banks, W.D. Civ. Nos. 15-cv-01400 and 15-cv-01385, as
expanded by an order in a criminal case, W.D. Crim. No. 15-cr-00174, in which Banks
filed a habeas petition and motions as “next friend” of the defendant. In the civil actions,
the District Court found that Banks had abused the judicial process by filing frivolous and
duplicative lawsuits, designated him a vexatious litigant, and enjoined him from filing
any complaint, lawsuit, or mandamus petition without authorization of the Court.
In the criminal action, the District Court extended its vexatious-litigant order “to
all filings made by Mr. Banks, in his name or under his known alias(es), whether on his
behalf or on behalf of anyone else.” 10/3/17 Order. The District Court noted that the
order did not apply to filings in Banks’ active criminal case. Banks appealed and we
affirmed the District Court’s order. United States v. Miller, 726 F. App’x, 107, 108 (3d
Cir. 2018) (per curiam) (non-precedential). Banks now appeals the District Court’s order
dismissing his habeas petition pursuant to its vexatious-litigant orders.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review
over the District Court’s legal conclusions and apply a clearly erroneous standard to its
factual findings. Cradle v. U.S. ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002) (per
curiam).
Banks asserts in his notice of appeal that the District Court erred because its
vexatious-litigant orders do not apply to habeas corpus actions. He also states that the
American Indian canon of construction requires that § 2241 be liberally construed. As
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discussed above, the District Court extended its vexatious-litigant order to all filings by
Banks other than those in his active criminal case. Even if the vexatious-litigant orders
were limited to complaints, lawsuits, and mandamus petitions, we find no error in the
District Court’s application of the orders here as Banks’ claims are not cognizable under
§ 2241, see Reese v. Warden Phila. FDC, 904 F.3d 244, 247 (3d Cir. 2018) (§ 2241 is not
the proper vehicle to challenge detention pending trial); Woodall v. Fed. Bureau of
Prisons, 432 F.3d 235, 241 (3d Cir. 2005) (§ 2241 allows a federal prisoner to challenge
the execution of his sentence), and he may not circumvent the orders by filing a habeas
petition. Moreover, Banks cannot litigate on behalf of Bourdain or his estate. See
Elustra v. Mineo, 595 F.3d 699, 704 (7th Cir. 2010) (representative parties such as next
friends may not conduct litigation pro se).
Because this appeal does not raise a substantial question, we will summarily
affirm the judgment of the District Court. See 3d Cir. LAR 27.4.
4