Frederick Banks v. Mark Hornak

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-6981

FREDERICK BANKS,

Plaintiff – Appellant,

v.

MARK HORNAK; TIMOTHY PIVNICHNY; SEAN LANGFORD; ROBERT
WERNER; ADRIAN ROE; DAVID HICKTON; ROBERT CESSAR;
JEFFERSON B. SESSIONS III; SCOTT SMITH; FEDERAL BUREAU OF
INVESTIGATION; JAMES COMEY; MIKE POMPEO; CENTRAL
INTELLIGENCE AGENCY; UNITED STATES ATTORNEY FOR THE
EASTERN DISTRICT OF NORTH CAROLINA; UNITED STATES DISTRICT
COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA; FOREIGN
INTELLIGENCE SURVEILLANCE COURT; ASSISTANT ATTORNEY
GENERAL ON COUNTERTERRORISM; MERIT SYSTEMS PROTECTION
BOARD; UNITED STATES MARSHALS SERVICE,

Defendants – Appellees.

Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Terrence W. Boyle, District Judge. (5:16–ct–03160–BO)

Argued: May 9, 2017 Decided: June 27, 2017

Before NIEMEYER, WYNN, and HARRIS, Circuit Judges.

Application to proceed in forma pauperis denied by unpublished opinion. Judge Wynn
wrote the opinion, in which Judge Niemeyer and Judge Harris joined.
ARGUED: Robert Matthew Bernstein, KIRKLAND & ELLIS LLP, Washington, D.C.,
for Appellant. Edward Himmelfarb, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellees. ON BRIEF: Erin E. Murphy, KIRKLAND & ELLIS
LLP, Washington, D.C., for Appellant. Chad A. Readler, Acting Assistant Attorney
General, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C.; John Stuart Bruce, Acting United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

2
WYNN, Circuit Judge:

This case asks us to determine whether 28 U.S.C. § 1915(g) bars Petitioner

Frederick Banks from proceeding in forma pauperis on appeal of the dismissal of his

purported mandamus action under 28 U.S.C. § 1361. Section 1915(g), commonly

referred to as the “three-strikes rule,” prohibits a prisoner, like Petitioner, from

proceeding in forma pauperis if “on 3 or more prior occasions, while incarcerated or

detained in any facility, [the prisoner] brought an action or appeal in a court of the United

States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a

claim upon which relief may be granted.” Petitioner argues that he is not subject to the

three-strikes rule because (1) he is not a “prisoner” within the meaning of Section 1915;

and (2) his appeal arises from the district court’s dismissal of his petition for mandamus

relief, which, Petitioner maintains, is not a “civil action” for purposes of Section 1915(g).

We reject Petitioner’s first argument and find that Petitioner falls within the plain

language of the statute’s definition of a “prisoner” because, at the time he filed his

petition, Petitioner was in custody under 18 U.S.C. § 3142(e), which authorizes the

pretrial detention of certain criminal defendants. We also reject Petitioner’s attempt to

characterize his petition as seeking relief in the preexisting criminal proceedings against

him and, instead, conclude that his petition is a “civil action” within the meaning of

Section 1915(g). Accordingly, we hold that Petitioner is subject to the three-strikes rule,

and we deny Petitioner’s application to proceed in forma pauperis on appeal.

3
 I.

On August 5, 2015, a federal grand jury empaneled by the United States District

Court for the Western District of Pennsylvania (the “Pennsylvania district court”)

indicted Petitioner on one count of interstate stalking, in violation of 18 U.S.C.

§ 2261A(2). 1 Petitioner pleaded not guilty, and the government moved that Petitioner be

detained pretrial pursuant to 18 U.S.C. § 3142(e), which requires that a district court

detain a criminal defendant pretrial if the court “finds that no condition or combination of

conditions will reasonably assure the appearance of the person as required and the safety

of any other person and the community.” After holding a detention hearing, the

Pennsylvania district court found that Petitioner presented a risk of danger to his alleged

interstate stalking victim, individuals against whom he had filed lawsuits, and possibly

others and, thus, ordered that Petitioner be detained pending trial.

Soon thereafter, Petitioner’s counsel moved the court to order an examination of

Petitioner’s “competence to understand the nature and consequences of the charges

pending against him and to effectively participate in his defense.” J.A. 94. The

Pennsylvania district court granted the motion, and on October 9, 2015, ordered that

Petitioner be “committed to the custody of the Attorney General for the conduct of” a

psychiatric or psychological examination and the preparation of a report setting forth

findings from that examination, citing 18 U.S.C. §§ 4241 and 4247. J.A. 96. The

1
The government later procured a superseding indictment further charging
Petitioner with wire fraud, aggravated identity theft, and making false statements.

4
Pennsylvania district court conducted its first competency hearing on December 30,

2015, and, based on evidence adduced during that hearing, ordered that Petitioner

undergo further examination.

On April 22, 2016, the Pennsylvania district court again concluded that there was

“reasonable cause to believe that [Petitioner] may presently be suffering from a mental

disease or defect rendering him mentally incompetent to the extent that he is unable to

understand the nature and consequences of the proceedings against him or to assist

properly in his defense.” J.A. 133 (internal quotation marks omitted) (quoting 18 U.S.C.

§ 4241(a)). As a result, the court ordered Petitioner to undergo additional evaluation

while remaining in the custody of the Attorney General pursuant to 18 U.S.C. § 4241.

The court also ordered that Petitioner be transferred to Federal Medical Center Butner

(“Butner”) in Butner, North Carolina, to undergo such further evaluations and

examinations. In the same order, the Pennsylvania district court also reaffirmed its

finding that Petitioner “poses a danger (both economic and physical) to the community

and others in it if released before trial” and found that Petitioner presented “a genuine and

very real flight risk.” J.A. 133. Accordingly, the court found an additional, independent

basis for Petitioner’s detention and ordered that Petitioner “remain in custody and . . . not

be released on bond,” J.A. 133, consistent with the requirements of 18 U.S.C. § 3142(e).

Pursuant to the Pennsylvania district court’s order, the Federal Bureau of Prisons

transferred Petitioner to Butner on May 18, 2016.

On July 1, 2016, during his confinement at Butner, Petitioner filed a document

titled “Indictment Complaint; and Petition for a Writ of Mandamus 28 USC 1361; and

5
Motion to Disclose Electronic Surveillance 50 USC 1806(f)” in the United States District

Court for the Eastern District of North Carolina (the “district court”). J.A. 5. The

petition named several defendants, including the FBI and former Director James Comey;

the CIA and former Director John Brennan; and former Attorney General Loretta Lynch.

In the petition, Petitioner recited several “counts” against the named defendants, claiming

that these defendants unlawfully surveilled Petitioner without his consent;

misappropriated public funds by requiring Petitioner to undergo mental health

evaluations that they knew or had reason to know Petitioner did not need; and traveled in

interstate commerce with the intent to harass and intimidate Petitioner by placing him

under unlawful surveillance. The petition requested two forms of relief. First, the

petition asked the district court “to compel the U.S. Attorney for this district to perform

their official duty” and “to present evidence against the [named defendants] related to the

charges above” in an evidentiary hearing. J.A. 5. Second, the petition requested that the

government disclose all electronic surveillance related to Petitioner. In addition to filing

the petition, Petitioner also sought leave to proceed in forma pauperis.

Because Petitioner applied to proceed in forma pauperis, the district court

undertook a frivolity determination pursuant to 28 U.S.C. § 1915(e)(2), a subsection of

the in forma pauperis statute that requires the court to “dismiss the case at any time if the

court determines that . . . the action . . . is frivolous or malicious; fails to state a claim on

which relief may be granted; or seeks monetary relief against a defendant who is immune

from such relief.” Additionally, the court discussed Section 1915(g)—the three-strikes

rule—and its application to Petitioner’s case. In particular, the district court incorrectly

6
stated that the three-strikes rule allows a court to dismiss a prisoner’s civil action if the

prisoner previously has had three or more prior actions or appeals, filed while the

prisoner was “incarcerated or detained in any facility,” 28 U.S.C. § 1915(g), dismissed as

frivolous or malicious or for failure to state a claim. 2

The district court then concluded that Petitioner, a “frequent filer” in the federal

courts, fell “within the three strikes provision” and did not allege any imminent danger

that would warrant excepting him from that provision’s application. J.A. 11–13.

Accordingly, the district court denied Petitioner’s application to proceed in forma

pauperis. And, based on its misunderstanding of Section 1915(g)’s operation, the court

dismissed Petitioner’s action without prejudice, citing Section 1915(g) for support.

Petitioner later filed a motion for reconsideration, which the district court denied. Still

detained at Butner, Petitioner timely appealed the district court’s dismissal of his petition,

as well as its denial of his application to proceed in forma pauperis. Petitioner then

sought leave to proceed in forma pauperis on appeal.

In sum, Petitioner was detained pursuant to 18 U.S.C. § 3142(e) and 18 U.S.C.

§ 4241 at the time he filed (1) the underlying petition; (2) the notice of appeal; and (3) the

2
Notably, Section 1915(g) is not a basis for dismissing a claim. On the contrary,
Section 1915(g) operates only to bar certain specified prisoners from proceeding in forma
pauperis. 28 U.S.C. § 1915(g) (barring three-strikers from “bring[ing] a civil action or
appeal[ing] a judgment in a civil action or proceeding under this section” (emphasis
added)); id. § 1915 (governing “[p]roceedings in forma pauperis”); see also Blakely v.
Wards, 738 F.3d 607, 609 (4th Cir. 2013) (en banc) (explaining that a “prisoner generally
may not proceed in forma pauperis but rather must pay up-front all filing fees for his
subsequent suits” when the prisoner “has already had three cases dismissed as frivolous,
malicious, or for failure to state a claim for which relief may be granted”).

7
application to proceed in forma pauperis before this Court. See United States v. Banks,

No. 2:15–cr–00168–MRH–1, ECF No. 349 (W.D. Pa. May 10, 2017) (regarding

Petitioner’s continued detention pursuant to 18 U.S.C. § 3142(e)); id. ECF No. 361 (W.D.

Pa. May 31, 2017) (regarding Petitioner’s continued detention pursuant to 18 U.S.C.

§ 4241).

II.

28 U.S.C. § 1915 governs applications to proceed in forma pauperis, including

applications filed by prisoners. The Prison Litigation Reform Act of 1995 (“PLRA”)

significantly amended the application of the in forma pauperis statute to federal prisoners

by adding the three-strikes rule. This rule provides that “[i]n no event shall a prisoner

bring a civil action or appeal a judgment in a civil action or proceeding under this section

if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any

facility, brought an action or appeal in a court of the United States that was dismissed on

the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may

be granted, unless the prisoner is under imminent danger of serious physical injury.” 28

U.S.C. § 1915(g). The question now before this Court is whether Section 1915(g) bars

Petitioner’s application to proceed in forma pauperis on appeal.

Petitioner argues that his application is not barred by Section 1915(g) for two

reasons: (1) he is not a “prisoner” as Section 1915 defines that term; and (2) his petition

for writ of mandamus pursuant to 28 U.S.C. § 1361 is neither a “civil action” nor an

8
“appeal [from] a judgment in a civil action or proceeding” subject to Section 1915(g). 3

We reject both arguments.

A.

Petitioner first argues that he is not a “prisoner” and, therefore, that the three-

strikes rule cannot preclude him from proceeding in forma pauperis on appeal. For

purposes of Section 1915(g), “the term ‘prisoner’ means any person incarcerated or

detained in any facility who is accused of, convicted of, [or] sentenced for . . . violations

of criminal law.” 28 U.S.C. § 1915(h). Accordingly, we must decide whether, at the

relevant times, Petitioner was “incarcerated or detained in any facility,” id., as “the result

of a violation of criminal law,” Michau v. Charleston County, 434 F.3d 725, 727 (4th Cir.

2006).

Although Petitioner acknowledges that “ordinary pretrial detainees who have been

charged with, but not yet convicted of or sentenced for, crimes” are “prisoners” within

the meaning of Section 1915(h), he asserts that he “is not an ordinary pretrial detainee but

a person in federal custody under the civil-commitment program for the mentally ill,”

3
Petitioner does not dispute that—if the three-strikes rule otherwise applies—he is
barred from proceeding in forma pauperis because he previously has filed numerous
claims “while incarcerated or detained,” 28 U.S.C. § 1915(g), that have been dismissed as
frivolous or malicious or for failing to state a claim on which relief may be granted, see
Banks v. U.S. Marshal, 274 F. App’x 631, 635 (10th Cir. 2008) (assessing Petitioner four
strikes); Banks v. County of Allegheny, 568 F. Supp. 2d 579, 586 n.1 (W.D. Pa. 2008)
(adopting magistrate’s report and recommendation, which explained that Petitioner “has
accumulated many more than three strikes”). Nor does Petitioner argue that he “is under
imminent danger of serious physical injury,” 28 U.S.C. § 1915(g), such that the statutory
exception to the three-strikes rule should apply.

9
citing his confinement pursuant to 18 U.S.C. § 4241. Pet’r’s Opening Br. at 17–18. The

Pennsylvania district court, however, originally detained Petitioner not based on cause to

believe that Petitioner may have been incompetent to stand trial under 18 U.S.C. § 4241,

but based on its finding that Petitioner presented a threat to the safety of certain

individuals in the community, requiring that Petitioner be detained pretrial pursuant to 18

U.S.C. § 3142(e). As recently as April 22, 2016, the Pennsylvania district court

concluded that Petitioner continues to merit pretrial detention under Section 3142(e)

because he “poses a danger (both economic and physical) to the community and others in

it if released before trial” and because “he would be a genuine and very real flight risk” if

released prior to trial on his pending criminal charges. J.A. 133.

Accordingly, at the time Petitioner filed the petition and at the time he filed his

notice of appeal and application to proceed in forma pauperis before this Court, Petitioner

was detained on two, independent bases: (1) to undergo competency evaluations to

“determine whether there is a substantial probability that in the foreseeable future he will

attain the capacity to permit the [criminal] proceedings to go forward,” 18 U.S.C.

§ 4241(d)(1); and (2) to “reasonably assure [his] appearance . . . and the safety of any . . .

person and the community,” id. § 3142(e)(1). Because of this dual basis for Petitioner’s

detention, at all relevant times Petitioner was detained pending trial on the criminal

charges against him pursuant to 18 U.S.C. § 3142(e)—the statute governing “ordinary

pretrial detainees who have been charged with, but not yet convicted of or sentenced for,

crimes.” Pet’r’s Opening Br. at 18. In other words, Petitioner was at all relevant times a

“person incarcerated or detained in any facility who [wa]s accused of . . . violations of

10
criminal law.” 28 U.S.C. § 1915(h). Thus, Petitioner falls squarely within Section

1915(h)’s definition of a “prisoner.” See Kalinowski v. Bond, 358 F.3d 978, 979 (7th Cir.

2004) (“Pretrial detainees are ‘prisoners’ for purposes of the PLRA because they are in

custody while ‘accused of . . . violations of criminal law.’” (quoting 28 U.S.C.

§ 1915(h))). Therefore, we reject Petitioner’s contention that he is not a “prisoner” as

defined in Section 1915(h). 4

B.

Petitioner also argues that Section 1915(g) does not apply to him because his

petition was a petition for writ of mandamus, not a “civil action,” and his pending appeal

is, accordingly, not an “appeal [from] a judgment in a civil action.” 5 28 U.S.C.

4
We note, however, that if the basis for Petitioner’s detention changes, Petitioner
may not qualify as a “prisoner” for purposes of Section 1915(g). For instance, if the
Pennsylvania district court were to determine that Petitioner’s “mental condition has not
so improved as to permit the proceedings to go forward,” 18 U.S.C. § 4241(d), and to
civilly commit Petitioner pursuant to the procedures set forth in 18 U.S.C. § 4246,
Petitioner would no longer be detained as “the result of a violation of criminal law,”
Michau, 434 F.3d at 727. Instead, Petitioner would be detained as the result of a
determination that he “is presently suffering from a mental disease or defect as a result of
which his release would create a substantial risk of bodily injury to another person or
serious damage to property of another.” 18 U.S.C. § 4246(d). In such circumstances,
Petitioner would not be a “prisoner” for purposes of the in forma pauperis statute. Cf.
Kolocotronis v. Morgan, 247 F.3d 726, 728 (8th Cir. 2001) (holding that an inmate
detained at a mental health facility after being found not guilty by reason of insanity was
a patient receiving mental health treatment and was not a “prisoner” under Section
1915(h)); Michau, 434 F.3d at 727–28 (holding that an individual detained under the
South Carolina Sexually Violent Predator Act was not a “prisoner” within the meaning of
Section 1915(h) because he was detained pursuant to a nonpunitive, civil detention
statute).
5
In the alternative, Petitioner asserts that his petition sought habeas corpus relief
by requesting that the government “release him from federal custody.” Pet’r’s Opening
(Continued)
11
§ 1915(g). According to Petitioner, petitions for writs of mandamus are, categorically,

not “civil actions” and, therefore, are not subject to the three-strikes rule.

Federal courts’ power to issue writs of mandamus springs from two statutory

sources. First, the All Writs Act, 28 U.S.C. § 1651, authorizes federal courts of appeals

to “issue all writs necessary or appropriate in aid of their respective jurisdictions and

agreeable to the usages and principles of law.” 6 28 U.S.C.§ 1651(a). A writ of

mandamus issued pursuant to Section 1651 is an “extraordinary remedy” and “has

traditionally been used in the federal courts only ‘to confine an inferior court to a lawful

exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its

duty to do so.’” Will v. United States, 389 U.S. 90, 95 (1967) (quoting Roche v.

Br. at 34–35. No fair reading of the petition supports this argument. This is particularly
true given that Petitioner has demonstrated an ability to request his release from custody
should he desire to do so. See, e.g., In re Banks, No. 16-3933, 2017 WL 383369, at *1
(3d Cir. Jan. 27, 2017) (summarizing a petition in which Petitioner alleged that the
Pennsylvania district court judge was “keeping him committed for an unreasonable
period of time” and sought “an order . . . directing the Respondents to . . . release him
from custody”). Accordingly, we decline to consider this argument.
6
Federal Rule of Civil Procedure 81(b) abolished the common law writ of
mandamus, precluding federal district courts from issuing writs of mandamus under
Section 1651. See 12 Charles Alan Wright & Arthur R. Miller, Federal Practice &
Procedure § 3134 (3d ed. 2014). Rule 81(b) has no effect on appellate courts’ power to
issue writs of mandamus pursuant to Section 1651. Id.; see also Armour & Co. v. Kloeb,
109 F.2d 72, 74 (6th Cir. 1939) (stating that Rule 81(b) “cannot be construed to apply to
Circuit Courts of Appeals, since so construed it would be in the exercise of a power not
conferred upon the Supreme Court”), judgment rev’d on other grounds by Kloeb v.
Armour & Co., 311 U.S. 199 (1940). And despite Rule 81(b), Congress has granted
district courts original jurisdiction over certain “action[s] in the nature of mandamus.” 28
U.S.C. § 1361.

12
Evaporated Milk Ass’n, 319 U.S. 21, 26 (1943)). Second, 28 U.S.C. § 1361 accords to

federal district courts “original jurisdiction of any action in the nature of mandamus to

compel an officer or employee of the United States or any agency thereof to perform a

duty owed to the plaintiff.” Writs of mandamus issued pursuant to Section 1361 are

“intended to provide a remedy for a plaintiff only if he has exhausted all other avenues of

relief and only if the defendant owes him a clear nondiscretionary duty.” Heckler v.

Ringer, 466 U.S. 602, 616–17 (1984).

In support of the argument that his petition—which seeks relief pursuant to

Section 1361—is not a “civil action” within the meaning of Section 1915(g), Petitioner

relies on several out-of-circuit cases holding that certain petitions for writs of mandamus

filed pursuant to Section 1651 are not “civil actions” and, thus, are not subject to Section

1915(g). Petitioner principally relies on Madden v. Myers, 102 F.3d 74 (3d Cir. 1996),

superseded in part by 3d Cir. R. 24.1(c), a case in which the Third Circuit considered

“whether the filing fee payment requirements of the [in forma pauperis statute] apply to

mandamus petitions” filed by prisoners. 102 F.3d at 76. In Madden, the petitioner

sought a Section 1651 writ of mandamus compelling the district court to act promptly on

his petition for habeas corpus relief. Id.

The Madden Court found that a writ of mandamus “is not an ‘action,’ and, a

fortiori, not a ‘civil action.’” Id. Instead, the court concluded that a Section 1651 writ of

mandamus is “a procedural mechanism through which a court of appeals reviews a

carefully circumscribed and discrete category of district court orders,” id. at 77,

observing that the writ “has traditionally been available to a court of appeals only ‘to

13
confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it

to exercise its authority when it is its duty to do so,’” id. at 77 n.3 (quoting Will, 389 U.S.

at 95). The Madden Court also concluded that a writ of mandamus is not an “appeal”—

that is, an “appeal of a civil action”—but “is different in kind from an appeal” and, in

fact, “may not issue if a petitioner can obtain relief by appeal.” Id. at 77.

Because it found that a writ of mandamus did not fall within the plain meaning of

either a “civil action” or an “appeal” as those terms are used in Section 1915, the court

concluded that its decision was “not controlled by the plain meaning of the text.” Id.

Accordingly, the court moved on to determining whether treating a petition for writ of

mandamus as a “civil action” would further or, alternatively, “frustrate[] congressional

intent.” Id. The Madden Court explained that “[t]he clear import of the PLRA is to

curtail frivolous prison litigation, namely that brought under 42 U.S.C. § 1983 and the

Federal Torts Claims Act.” Id. (citing H.R. Conf. Rep. No. 104-378, 104th Cong., 2d

Sess. (1996)). The court described Section 1651 writs of mandamus as securing types of

relief that are fundamentally different from the kinds of relief afforded pursuant to causes

of action that are subject to the PLRA. In particular, the court stated that the writ

provides relief “for prisoners who may have no other relief in a criminal action in which a

court has exceeded its judicial power or failed to use its power where there is a duty to do

so.” Id. (internal quotation marks omitted). And, additionally, the court described

Section 1651 petitions as “often the only way a litigant can obtain review of certain

orders or can compel a district judge to act,” e.g., when the district court has “unduly

delayed” proceedings in the petitioner’s case or when the district judge has “refus[ed] to

14
recuse . . . [and] the judge’s impartiality might reasonably be questioned.” Id. at 78.

Concluding, then, that Section 1651 petitions are not representative of the type of

“frivolous prison litigation” Congress intended to curtail through the PLRA, the Third

Circuit held that “where the underlying litigation is criminal, or otherwise of the type that

Congress did not intend to curtail, the petition for mandamus need not comply with the

PLRA.” Id. at 77.

Other courts have reached similar conclusions regarding whether Section 1651

petitions for writs of mandamus are subject to the PLRA. See In re Stone, 118 F.3d 1032,

1034 & n.2 (5th Cir. 1997) (holding that, “[i]n a mandamus proceeding, . . . the nature of

the underlying action will determine the applicability of the PLRA,” such that petitions

filed in underlying civil proceedings are “civil actions” but those filed in underlying

criminal proceedings are not); Martin v. United States, 96 F.3d 853, 854–55 (7th Cir.

1996) (Posner, C.J.) (finding that, although Section 1651 petitions arising from

underlying civil litigation are “civil actions,” petitions arising from criminal proceedings

are “not a form of prisoner litigation” that Congress intended to curtail and, thus, are not

“civil actions”); In re Nagy, 89 F.3d 115, 117 & n.1 (2d Cir. 1996) (holding that “if a

prisoner seeks a writ of mandamus directed to a judge conducting a criminal trial, the

application is not within the category of lawsuits to which the PLRA was aimed” and is

not a “civil action” subject to the PLRA, but noting that a petition arising from civil

proceedings may be a “civil action” if it is “an alternative device for obtaining the relief

sought in civil actions that are covered by the PLRA”). But see Green v. Nottingham, 90

F.3d 415, 418 (10th Cir. 1996) (holding that “petitions for a writ of mandamus are

15
included within the meaning of the term ‘civil action’ as used in § 1915”). Similarly, the

Fourth Circuit has adopted a rule requiring only prisoners who file a petition for writ of

mandamus “in a matter arising out of a civil case” to comply with Section 1915’s

requirement that prisoners proceeding in forma pauperis pay filing fees in full. 4th Cir.

R. 21(c)(1), (3) (emphasis added); see also 28 U.S.C. § 1915(b)(1).

Petitioner argues that his petition for writ of mandamus, filed pursuant to Section

1361 rather than Section 1651, falls outside the definition of a “civil action” and, thus,

that Section 1915(g) does not bar him from proceeding in forma pauperis on appeal. No

circuit court has squarely addressed, in a published opinion, whether petitions for writs of

mandamus filed pursuant to Section 1361 are, or are not, “civil actions” within the

meaning of Section 1915. 7 Nor do we resolve that question in this case. Instead, we

assume, without deciding, that Section 1361 and Section 1651 petitions are treated

equivalently for purposes of Section 1915. Applying this assumption, certain Section

1361 petitions would fall squarely within the definition of a “civil action” for purposes of

Section 1915—such as petitions that serve merely as “alternative device[s] for obtaining

the relief sought in civil actions that are covered by the PLRA,” In re Nagy, 89 F.3d at

117 n.1—while other Section 1361 petitions would not be “civil actions” subject to the

7
The Third Circuit has noted, however, that “the same considerations” that govern
the determination of whether a Section 1651 petition is a “civil action” within the
meaning of the PLRA “may apply” when determining whether a petition for writ of
mandamus filed pursuant to Section 1361 is a “civil action” for purposes of the PLRA.
Madden, 102 F.3d at 76 n.2.

16
three-strikes rule—such as petitions that seek relief in preexisting criminal proceedings,

see id. at 117; Martin, 96 F.3d at 854.

Petitioner attempts to characterize his Section 1361 petition as seeking relief in his

preexisting criminal proceedings before the Western District of Pennsylvania and, thus,

as falling outside the definition of a “civil action.” In particular, Petitioner’s counsel

suggests that Petitioner “may have harbored concern about his speedy-trial rights” and

“may have also felt that his mental-competency proceedings were unjustly drawn out.”

Pet’r’s Opening Br. at 32. Based on these conjectures, Petitioner’s counsel argues that

we should read Petitioner’s Section 1361 petition as seeking to compel the Pennsylvania

district court to act on the criminal charges pending against Petitioner in that district or,

similarly, to move forward with Petitioner’s competency proceedings in that district. But

no fair reading of the petition supports this characterization. 8 Indeed, rather than seeking

relief in Petitioner’s criminal proceedings before the Pennsylvania district court, the

petition in question seeks to compel the institution of new proceedings by requesting that

a grand jury be empaneled to investigate Petitioner’s separate allegations against a group

of government officials and, additionally, to initiate separate proceedings for disclosure

of certain electronic surveillance allegedly related to Petitioner.

8
This is especially true given that Petitioner previously has filed a mandamus
petition seeking to compel just such action in the Pennsylvania district court. See, e.g., In
re Banks, 2017 WL 383369, at *1 (summarizing a petition in which Petitioner alleged
that the Pennsylvania district court judge was “violat[ing] his right to a speedy trial” and
“keeping him committed for an unreasonable period of time” and sought “an order . . .
directing the Respondents to perform their duties”).

17
 As such, even assuming that Section 1361 petitions seeking relief in preexisting

criminal proceedings are, like their Section 1651 counterparts, not “civil actions” for

purposes of the PLRA, Petitioner’s Section 1361 petition does not benefit from this

principle. Accordingly, we conclude that Petitioner’s Section 1361 petition is a “civil

action” within the meaning of Section 1915(g) and, thus, that Petitioner is barred from

proceeding in forma pauperis on appeal by operation of the three-strikes rule.

III.

For the reasons set forth herein, we conclude that Petitioner is barred from

proceeding in forma pauperis on appeal by operation of Section 1915(g). Accordingly,

we deny Petitioner’s application to proceed in forma pauperis.

APPLICATION DENIED

18