Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Banks v. Asbell

United States District Court, E.D. North Carolina, Western Division

January 31, 2019

Ricky Banks, Plaintiff,
v.
Thomas E. Asbell, II, et al., Defendants.

          ORDER AND MEMORANDUM & RECOMMENDATION

          Robert T. Numbers, II United States Magistrate Judge

         Plaintiff Ricky Banks, a state inmate proceeding pro se, filed a complaint (D.E. 1) alleging violations of the Americans with Disabilities Act (ADA) and the First and Eighth Amendments to the United States Constitution. This matter is currently before the court for the screening required by the Prison Litigation Reform Act (“PLRA”). Also before the court are Banks's motions to amend (D.E. 22, 23, 26) and motions for a writ of mandamus (D.E. 30, 31, 32). For the following reasons, Banks's motions are DENIED, and the court recommends that this action be dismissed as duplicative.

         I. Motions to Amend

         Since filing his original complaint, Banks supplemented his allegations many times. He also filed many motions to amend, see (D.E. 7, 10, 17, 20, 21), three of which are still pending (D.E. 22, 23, 26). Because Banks allegations and proposed amendments were strewn across several pleadings on the docket and difficult to follow, the court instructed Banks to consolidate his claims in one amended complaint (D.E. 25). Banks filed his amended complaint in October 2018. His amended complaint was filed after his pending motions to amend. Because the court granted Banks leave to consolidate all of his claims into one amended pleading, his pending motions to amend (D.E. 22, 23, 26) are DENIED as moot.

         II. Motions for a Writ of Mandamus

         Banks filed three motions seeking a writ of mandamus directing defendants to discontinue the violations Banks alleges in his complaint. Banks's motion does not establish that he is entitled to mandamus relief. See Heckler v. Ringer, 466 U.S. 602, 616-17 (1984) (holding mandamus relief is only available where plaintiff has “exhausted all other avenues of relief and only if the defendant owes him a clear nondiscretionary duty”). As a result, these motions (D.E. 30, 31, 32) are DENIED.

         III. PLRA Screening

         The PLRA requires courts to review, prior to docketing, actions filed by prisoners against governmental entities or officials. 28 U.S.C. § 1915A(a). The purpose of this review is to eliminate those claims that unnecessarily impede judicial efficiency and the administration of justice. The court must examine the pleadings, identify cognizable claims, and dismiss any portion of the complaint that is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. Id. § 1915A(b). A similar standard applies to cases brought by parties proceeding in forma pauperis. Id. § 1915(e).

         A complaint fails to state a claim upon which relief may be granted if it does not “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Supreme Court has explained that “[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.” Id. Williams's status as a pro se party relaxes, but does not eliminate, the requirement that her complaint contain facially plausible claims. The court must liberally construe a pro se plaintiff's allegations, but it “cannot ignore a clear failure to allege facts” that set forth a cognizable claim. Johnson v. BAC Home Loans Servicing, LP, 867 F.Supp.2d 766, 776 (E.D. N.C. 2011).

         Since April 2018, Banks has filed 12 civil rights actions in this district. See Banks v. Hooks, No. 5:18-CT-3076-BO (E.D. N.C. filed Apr. 13, 2018); Banks v. Asbell, No. 5:18-CT-3144-FL (E.D. N.C. filed June 15, 2018); Banks v. Hooks, No. 5:18-CT-3208-FL (E.D. N.C. filed Aug. 8, 2018); Banks v. Asbell, No. 5:18-CT-3236-D (E.D. N.C. filed Aug. 29, 2018); Banks v. Page, No. 5:18-CT-3243-BO (E.D. N.C. filed Aug. 31, 2018); Banks v. Page, No. 5:18-CT-3249-BO (E.D. N.C. filed Sept. 12, 2018); Banks v. May, No. 5:18-CT-3283-FL (E.D. N.C. filed Oct. 16, 2018); Banks v. Raleigh Police Dep't, No. 5:18-CT-3295-D (E.D. N.C. filed Oct. 26, 2018); Banks v. Richardson, No. 5:18-CT-3299-D (E.D. N.C. filed Oct. 30, 2018); Banks v. Williams, No. 5:18-CT-3318-BO (E.D. N.C. filed Nov. 15, 2018); Banks v. Huddleson, No. 5:18-3342-BO (E.D. N.C. filed Dec. 11, 2018). Several of these actions are extremely similar, alleging misconduct by officials at Greene Correctional since November 2017. These cases are still pending frivolity review, and on at least three occasions the court has instructed Banks has to particularize his claims. Banks has also filed several motions to amend in virtually all of his cases. And Banks routinely files identical motions in his various actions. For example, Banks filed a similar motion for a writ of mandamus in each of his pending cases.

         Here, even as amended, plaintiff's claims are still difficult to understand, and it is still not clear what each specific defendant did to him. Banks names over 30 defendants, and, in many cases, he describes their actions in boilerplate language. Thus, even after the court allowed him to amend his claims, Banks's amended complaint still does not comply with Rule 8 of the Federal Rules of Civil Procedure. His complaint should be dismissed for that reason alone.

         Moreover, the crux of Banks's action is that, since November 2017, prison officials at Greene improperly exposed him to second hand smoke. Banks has already raised this claim, and several other related claims in an earlier action. See Banks v. Hooks, No. 5:18-CT-3076-BO (filed April 13, 2018). Thus, this case is duplicative. “Because district courts are not required to entertain duplicative or redundant lawsuits, they may dismiss such suits as frivolous pursuant to § 1915(e). Generally, a lawsuit is duplicative of another one if the parties, issues and available relief do not significantly differ between the two.” Cottle v. Bell, 229 F.3d 1142, 2000 WL 1144623, at *1 (4th Cir. Aug. 14, 2000) (unpublished table opinion) (citations omitted); see I.A. Durbin, Inc. v. Jefferson Nat'l Bank, 793 F.2d 1541, 1551-52 (11th Cir. 1986) (collecting cases); Richardson v. Thompson, No. 4:04-1256-27, 2004 WL 3316381, *3-4 (D.S.C. Oct. 7, 2004), aff'd, 124 Fed.Appx. 795 (4th Cir. Mar. 30, 2005). Moreover, the doctrine of res judicata would preclude this court from reaching a different legal decision from the original action. Allen v. McCurry, 449 U.S. 90, 94 (1980). So this action should be dismissed as duplicative.

         IV. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.