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Banks v. Song

United States District Court, D. Kansas

February 23, 2018

FREDERICK BANKS, Plaintiff,
v.
SOO SONG, et al., Defendants.

          MEMORANDUM AND ORDER

          SAM A. CROW U.S. SENIOR DISTRICT JUDGE

         This matter is a civil rights action filed against several defendants including federal officials and agencies. Plaintiff, an Ohio prisoner, proceeds pro se and seeks leave to proceed in forma pauperis.

         Background

         Plaintiff commenced this action on July 20, 2017, against two United States attorneys, a federal judge, a federal court, three agents of the Federal Bureau of Investigation (FBI), the FBI, the Central Intelligence Agency (CIA), the director of the CIA, the United States Marshals Service, a private attorney, and two correctional officers. He claims the defendant judge defamed him in a July 2017 hearing and misstated facts in order to keep him confined. He also claims the attorneys and judge caused him to be placed in a mental hospital so that he would be forced from his home. Finally, he claims that the defendant corrections officers prepared frivolous reports against him, and that they took this action at the request of the government and the FBI. He seeks damages, release from confinement, and the dismissal of criminal charges against him.

         On August 8, 2017, the Court entered an order denying leave to proceed in forma pauperis and directing plaintiff to submit the full filing fee within thirty days. This was based upon plaintiff's filing history in the federal courts and a determination that he is subject to the provisions of 28 U.S.C. § 1915(g).

         On August 21, 2017, plaintiff filed a motion to vacate, stating that he is not subject to the provisions of 28 U.S.C. § 1915(g) because he is civilly committed. The Court granted the motion to vacate on November 15, 2017. Accordingly, plaintiff's objection to the initial partial filing fee is sustained and no collection action will be ordered.

         Screening

         A federal court must conduct a preliminary review of any case in which a prisoner seeks relief against a governmental entity or an officer or employee of such an entity. See 28 U.S.C. §1915A(a). Following this review, the court must dismiss any portion of the complaint that is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary damages from a defendant who is immune from that relief. See 28 U.S.C. § 1915A(b).

         In screening, a court liberally construes pleadings filed by a party proceeding pro se and applies “less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007).

         To avoid a dismissal for failure to state a claim, a complaint must set out factual allegations that “raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The court accepts the well-pleaded allegations in the complaint as true and construes them in the light most favorable to the plaintiff. Id. However, “when the allegations in a complaint, however true, could not raise a [plausible] claim of entitlement to relief, ” the matter should be dismissed. Id. at 558. A court need not accept “[t]hreadbare recitals of the elements of a cause of action supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rather, “to state a claim in federal court, a complaint must explain what each defendant did to [the pro se plaintiff]; when the defendant did it; how the defendant's action harmed [the plaintiff]; and what specific legal right the plaintiff believes the defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007).

         The Tenth Circuit has observed that the U.S. Supreme Court's decisions in Twombley and Erickson set out a new standard of review for dismissals under 28 U.S.C. § 1915(e)(2)(B)(ii) dismissals. See Key v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007)(citations omitted). Following those decisions, courts “look to the specific allegations in the complaint to determine whether they plausibly support a legal claim for relief.” Kay, 500 F.3d at 1218 (quotation marks and internal citations omitted). A plaintiff “must nudge his claims across the line from conceivable to plausible.” Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009). In this context, “plausible” refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct much of it innocent, ” then the plaintiff has not “nudged [the] claims across the line from conceivable to plausible.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (citing Twombly at 1974).

         The Court has reviewed the complaint and finds no basis to allow this matter to proceed. First, it does not appear that venue is proper in the District of Kansas. Whether venue is proper in a federal district is governed by 28 U.S.C. § 1391, which provides that a civil action may be brought in:

(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the ...

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