United States District Court, E.D. Wisconsin
ORDER DENYING PLAINTIFF'S MOTION TO VACATE (DKT.
PAMELA PEPPER United States District Judge.
Frederick Banks is confined at the Butner Federal Medical
Center in Butner, North Carolina. He filed this lawsuit
alleging violations of his constitutional rights. Dkt. No. 1.
On July 21, 2016, Judge Rudolph T. Randadenied the
plaintiff's motion for leave to proceed without
prepayment of the filing fee (in forma pauperis)
pursuant to 28 U.S.C. §1915(g), and dismissed the case
as frivolous and malicious under 28 U.S.C. §1915A. Dkt.
No. 8 at 4. Based on the fact that the plaintiff had an
extensive history of filing cases that had been dismissed as
frivolous, malicious, or for failure to state a claim, the
order directed the Clerk of Court to return unfiled any
pleading filed by or on behalf of the plaintiff, until he had
paid in full all outstanding fees and sanctions in all civil
actions in any federal court. Id. at 1-2, 4-5. The
court entered judgment on July 21, 2016. Dkt. No. 9.
February 2, 2017, the plaintiff filed a motion to vacate that
judgment Federal Rule of Civil Procedure 60(b)(4). Dkt. No.
10. The case was transferred to this court on February 2,
Plaintiff's Motion to Vacate
motion, the plaintiff argues that at the time he filed the
complaint he was not a prisoner, but a mental patient
committed to a mental institution. Dkt. No. 10. The plaintiff
asserts that because he was not a prisoner when he filed the
complaint, the Prison Litigation Reform Act (PLRA) did not
apply to him, and that he was “not subject to the
filing fee as a pauper.” Id. According to the
plaintiff, he has been continually committed since April 22,
2017 (presumably, he means 2016). Dkt. No. 10. He states that
he currently is committed for restoration under 18 U.S.C.
§4241(d), and that previously he was committed under 18
U.S.C. §4241(b). Id. The plaintiff also states
that his complaint contained an “obvious typo;”
it says that forty FBI agents arrested him on August 7,
“2016, ” but the plaintiff meant to say
plaintiff brings his motion under Rule 60(b)(4). Dkt. No. 10.
That rule allows a court to relieve a party of a final
judgment if the judgment “is void.” A judgment is
void only if the court that rendered judgment lacked
jurisdiction of the subject matter or the parties, or if the
court acted in a manner inconsistent with due process of law.
21 Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 2682, Westlaw (database
updated 2017). The plaintiff has not argued that the court
had no jurisdiction over his complaint (it did, because he
alleged that his civil rights were violated under federal
law). Nor has he argued that Judge Randa acted in a way that
was inconsistent with due process. The court has no basis for
granting a Rule 60(b)(4) motion.
60(b) also allows a court to relieve a party from a final
judgment or order for the following reasons: (a) mistake,
inadvertence, surprise, or excusable neglect; (b) newly
discovered evidence; (c) fraud, misrepresentation, or
misconduct by an opposing party; (d) the judgment has been
satisfied, released or discharged; or (e) for any other
reason that justifies relief. Fed.R.Civ.P. 60(b).
order dismissing the petitioner's case, Judge Randa
identified the plaintiff as “a pro se prisoner
housed in FCI Butner in North Carolina.” Dkt. No. 8 at
1. He also pointed out that the petitioner had filed
“an in forma pauperis petition.”
Id. at 3. In fact, the plaintiff filed along with
his petition an application to proceed in district court
without prepaying the filing fee-an in forma
pauperis application. Dkt. No. 2. For these reasons,
Judge Randa applied the provisions the PLRA to the plaintiff,
including the “three-strikes” provision of the
in forma pauperis statute, 28 U.S.C.
§1915(g). The court denied the plaintiff's
application to proceed in forma pauperis because he
had accumulated dozens of “strikes, ” and because
he did not allege that he was under imminent danger of
serious physical injury. Dkt. No. 8 at 1, 3.
plaintiff contends that he was not a prisoner when he filed
the complaint because he was committed to a mental
institution on April 16, 2017 (he presumably means 2016-the
court received his complaint on June 13, 2016). If, when he
filed the complaint, the plaintiff was an inmate committed to
a mental institution after a finding that he was not guilty
of criminal charges by reason of insanity, then he probably
would not meet the definition of “prisoner” under
the PLRA, and the PLRA's three-strikes provision,
§1915(g), would not apply to him. See Kolocotronis
v. Morgan, 247 F.3d 726, 728 (8th Cir. 2011) (inmate
held in state mental institution after being found not guilty
by reason of insanity not a prisoner under PLRA).
court has reviewed the docket for the plaintiff's
criminal case. United States v. Banks, Case No.
15-CR-168 (W.D. PA.). On August 11, 2015, the court in the
plaintiff's criminal case issued an Order of Detention
Pending Trial. Banks, 15-CR-168, Dkt. No. 20. At
that time, he was a “prisoner” as defined by the
in forma pauperis statute. See 28 U.S.C.
§1915(h) (a “prisoner” means “any
person incarcerated or detained in any facility who is
accused of, convicted of, sentenced for, or adjudicated
delinquent for, violation of criminal law or the terms and
conditions of parole, probation, pretrial release, or
April 22, 2016, the court in the petitioner's criminal
case ordered a competency hearing under 18 U.S.C.
§4241(a), to determine whether he was competent to stand
trial and to represent himself at that trial. Banks,
15-CR-168, Dkt. No. 129 at 5. In this order, the court
determined that the plaintiff should remain in custody and
not be released on bond before trial pending an examination
because “he poses a danger (both economic and physical)
to the community and others in it if released before trial,
and given the nature and content of his wide array of
filings, the Court concludes that if released, he would be a
genuine and very real flight risk.” Id. at 4.
The Pennsylvania court held a competency hearing on September
29, 2016; on October 3, 2016, the court ordered the plaintiff
committed to the custody of the Attorney General pursuant to
28 U.S.C. §4241(d) “to determine whether there is
a substantial probability that in the foreseeable future [the
plaintiff] will attain the capacity to permit these
proceedings to go forward.” Banks, 15-CR-168,
Dkt. No. 206, at 1-2.
plaintiff appears to be arguing that he no longer met the
definition of a “prisoner” under the PLRA as of
April 22, 2016, because on that date, the Pennsylvania court
ordered a mental examination. But at that time, the plaintiff
remained confined pending trial on his criminal
charges, just as he was when he filed this federal complaint
on June 13, 2016. The court concludes that the plaintiff was
a prisoner as defined by the PLRA. See 28 U.S.C.
§1915(h); see also Kalinowski v. Bond, 358 F.3d
978, 979 (7th Cir. 2004) (person ...