IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

FREDERICK BANKS, * 

* 

*

 Plaintiff, * 

 * 

vs. * CIVIL ACTION NO.15-00281-WS-B

*

 *

TIMOTHY PIVNICHNY, et al., * 

 * 

 Defendants. *

REPORT AND RECOMMENDATION

Plaintiff, Frederick Banks, proceeding pro se, initiated

this action by filing a handwritten complaint and an application 

to proceed without prepaying fees. (Docs. 1, 2). This action 

has been referred to the undersigned for a report and 

recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local 

Rule S.D. Ala. GenLR 72.2(a)(2)(R). For the reasons set forth 

below, it is RECOMMENDED that this action be dismissed without 

prejudice, and that Bank’s application be denied as moot.

Background

Banks filed this action against seventy-eight defendants, 

including various Federal judges, Federal agencies, Federal 

officials, political figures, and a variety of other individuals 

for alleged violations of his rights under the Fifth and 

Fourteenth Amendments to the U.S. Constitution and the Sioux 

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Treaty of Fort Laramie. (Doc. 1). 1 Banks, who lists a 

Pittsburgh, Pennsylvania address, seeks declaratory judgment and 

an award of monetary damages in the amount of $500,000,000. 

(Id.). 

The allegations in Banks’ complaint concern events that are 

alleged to have occurred in 2003 and 2004, and that primarily 

involved FBI Special Agent Timothy Pivnichny. (Id.) Banks 

alleges that during an FBI interview conducted by Pivnichny, 

Pivnichny pointed a loaded gun at Banks’ fiancée in order to 

intimidate her and elicit testimony from her against Banks. 

(Id.). Banks further alleges that Pivnichny attempted to set him 

up, and that the other Defendants covered up the events, and 

failed to investigate Banks’ allegations. (Id.) Research on 

Pacer reveals that Banks has filed substantially similar 

lawsuits in District Courts across the United States, and that 

several have been rejected on a multitude of grounds, including 

for improper venue, failure to state a claim, and frivolousness. 

Banks v. Pivnichny, 2015 U.S. Dist. LEXIS 81072 (June 2, 2015); 

Banks v. Pivnichny, 2015 U.S. Dist. LEXIS 80324 (M.D. Ala. June 

22, 2015); Banks v. Pivnichny, 2015 U.S. Dist. LEXIS 110987 n. 4 

(M.D. Fla. August 21, 2015)(enumerating the identical complaints 

 1 Included among the named defendants are President Barack Obama, 

former Secretary of State Hillary Clinton, former Massachusetts 

Governor Mitt Romney, Senator Richard Burr, the Federal Bureau of 

Investigation (“FBI”), the Central Intelligence Agency (“CIA”), the 

United States Senate, the United States Congress, and a several 

federal judges from various districts. 

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filed by Banks throughout the country); Banks v. Pivnichny, 2015 

U.S. Dist. LEXIS 83594 (D. Idaho June 26, 2015).

Banks has not proffered any facts that suggest that venue 

is proper in this District. As best the court can discern, the 

facts giving rise to Banks’ claims occurred in the Western 

District of Pennsylvania, where Banks’ fiancée as well as agent 

Pivnichny are alleged to have resided. Moreover, Banks provides 

a Pennsylvania address for himself, and he gives no indication 

that any of the other seventy-eight named Defendants reside in 

Alabama. Indeed, Banks asserts that Pivnichny was transferred 

to Florida, and the Court takes judicial notice of the fact that 

many of the federal judges and other officials named as 

Defendants are assigned to locations outside of Alabama. 

Discussion

A district court may raise the issue of defective venue sua 

sponte; thus, a threshold issue before this Court is whether 

venue is proper in this district. See, e.g., Kapordelis v. 

Danzig, 387 F. App'x 905, 906-907 (11th Cir. 2010) (affirming 

sua sponte transfer, pursuant to 28 U.S.C. § 1406(a), of pro se 

prisoner's Bivens action from New York to Georgia), cert. 

denied, 562 U.S. 1250, 131 S. Ct. 1481, 179 L. Ed. 2d 361 

(2011); Berry v. Salter, 179 F. Supp. 2d 1345, 1350 (M.D. Ala. 

2001). When venue is improper, under 28 U.S.C. § 1406, a court 

"shall dismiss, or if it be in the interest of justice, transfer 

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such case to any district . . . in which it could have been 

brought." 28 U.S.C. § 1406(a). To assess venue, the Court first 

looks to the general venue provisions of 28 U.S.C. § 1391 (b)2 . 

Under that statute, a civil action may be filed “in any district 

in which a defendant resides if all defendants are residents of 

the State in which the district is located.” 28 U.S. C. § 1391. 

This provision does not establish venue in this district because 

it does not appear that any of the numerous Defendants named by 

Banks are residents of the Southern District of Alabama, let 

alone all of them. 

The venue statute also provides that a civil action may be 

brought in “a judicial district in which a substantial part of 

the events or omissions giving rise to the claim occurred.” 28 

 2 28 U.S.C. § 1391 (b) provides as follows: 

(b) Venue in general. 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 property that is 

the subject of the action is situated; or

 (3) if there is no district in which an action may 

otherwise be brought as provided in this section, any 

judicial district in which any defendant is subject to 

the court's personal jurisdiction with respect to 

such action.

28 U.S.C. § 1391 (b)

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U.S.C. § 1391 (b)(2). As noted supra, Banks does not allege that 

any of the events underlying his claims occurred in the Southern 

District of Alabama. It instead appears that a substantial 

portion of the events occurred in the Western District of 

Pennsylvania. 

Because Banks also names several federal employees and 

agencies, the Court must assess venue under 28 U.S.C. § 1391 

(e)3 , which provides that an action against officers, employees 

and agencies of the United States may be brought in a district 

in which the defendant resides, in a district where a 

substantial part of the events giving rise to the claim 

occurred, or where the plaintiff resides. 28 U.S.C. § 1391 

(e)(1). Venue does not exist under either of these provisions 

because there is nothing in the complaint that suggests that any 

of the federal officers or employees named in the complaint 

reside in this district, that any of the events underlying 

 3 Section 1391(e)(1) provides:

 A civil action in which a defendant is an officer 

or employee of the United States or any agency thereof 

acting in his official capacity or under color of legal 

authority, or an agency of the United States, or the United 

States, may, except as otherwise provided by law, be 

brought in any judicial district in which (A) a defendant 

in the action resides, (B) a substantial part of the 

events or omissions giving rise to the claim occurred, or a 

substantial part of property that is the subject of the 

action is situated, or (C) the plaintiff resides if no real 

property is involved in the action.

28 U.S.C. § 1391(e)(1).

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Banks’ claims occurred in this district, or that Banks resides 

in this district.

Once the Court determines that venue is lacking, the court 

must assess whether dismissal or transfer is appropriate. When 

a plaintiff files an action in the wrong venue, the court must 

dismiss the case unless the “interests of justice” would be 

served by transferring the action to a court where the case 

could have been brought or to dismiss the action. 28 U.S.C. § 

1406(a). The undersigned finds that while this action could have 

been filed in the Western District of Pennsylvania, it would not 

be in the interests of justice to transfer this action to that 

court4. As aptly noted by the Court in Banks v. Pivnichny, 2015 

U.S. Dist. LEXIS 85958 (S.D. Ga., June 30, 2015), given that 

 4 Another consideration is that fact that in Banks v. 

Pivnichny, 2015 U.S. Dist. LEXIS 81072 (June 2, 2015), Banks 

filed a near identical complaint in the Middle District of 

Alabama. After permitting Banks to proceed in forma pauperis, 

Magistrate Judge Walker recommended the dismissal of Banks’ 

complaint on a number of grounds, including that the court 

lacked jurisdiction to entertain some of his claims, that Banks 

failed to demonstrate standing to bring some of the claims, and 

that Banks failed to allege facts setting forth a plausible 

claim for relief against any of the defendants. The report and 

recommendation was adopted and the lawsuit dismissed. See Banks 

v. Pivnichny, 2015 U.S. Dist. LEXIS 80324 (M.D. Ala. June 22, 

2015); See also Banks v. Pivnichny, 2015 U.S. Dist. LEXIS 110987 

n. 4 (M.D. Fla. August 21, 2015)(enumerating the identical 

complaints filed by Banks throughout the country); Banks v. 

Pivnichny, 2015 U.S. Dist. LEXIS 83594 (D. Idaho June 26, 

2015)(detailing the inadequacies of Bank’s complaint, which is 

substantially similar to the complaint before this court, and 

dismissing the complaint for numerous pleading deficiencies) 

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Banks has already filed the same complaint in the Western 

District of Pennsylvania, [i]t would only frustrate the interest 

of justice to stack yet another case onto the considerable pile 

of cases [Banks] has already pending in the Western District of 

Pennsylvania. Therefore, the prudent remedy for improper venue 

in this case is dismissal, without prejudice, rather than 

transfer.” Banks v. Pivnichny, 2015 U.S. Dist. LEXIS 85958 (S.D. 

Ga., June 30, 2015)(citation omitted). Accordingly, the 

undersigned RECOMMENDS that this action be dismissed without 

prejudice and that Banks’ Application to Proceed Without Costs 

be denied as moot.

Notice of Right to File Objections

A copy of this report and recommendation shall be served on 

all parties in the manner provided by law. Any party who objects 

to this recommendation or anything in it must, within fourteen 

(14) days of the date of service of this document, file specific 

written objections with the Clerk of this Court. See 28 U.S.C. § 

636(b)(1); FED.R.CIV.P. 72(b); S.D. ALA. GenLR 72(c). The parties 

should note that under Eleventh Circuit Rule 3-1, “[a] party 

failing to object to a magistrate judge's findings or 

recommendations contained in a report and recommendation in 

accordance with the provisions of 28 U.S.C. § 636(b)(1) waives 

the right to challenge on appeal the district court's order 

based on unobjected-to factual and legal conclusions if the 

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party was informed of the time period for objecting and the 

consequences on appeal for failing to object. In the absence of 

a proper objection, however, the court may review on appeal for 

plain error if necessary in the interests of justice.” 11th 

Cir. R. 3-1. In order to be specific, an objection must 

identify the specific finding or recommendation to which 

objection is made, state the basis for the objection, and 

specify the place in the Magistrate Judge’s report and 

recommendation where the disputed determination is found. An 

objection that merely incorporates by reference or refers to the 

briefing before the Magistrate Judge is not specific. 

DONE this 27th day of October, 2015.

 /s/ Sonja F. Bivins_______ 

 UNITED STATES MAGISTRATE JUDGE

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