CLD-108                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 19-3467
                                       ___________

                                FREDERICK H. BANKS,
                                              Appellant

                                             v.


     ED LEA; JIM BUCKLEY; KIMBERLY GREWAY; ORLANDO L. HARPER;
                  JUDGE CATHY BISSOON; JIM HIMHOLF
                   ____________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                         (D.C. Civil Action No. 2-19-cv-00942)
                       District Judge: Honorable Nora B. Fischer
                      ____________________________________

      Submitted for Possible Summary Action Pursuant to Third Circuit LAR 27.4 and
    I.O.P. 10.6 and Consideration of Whether a Certificate of Appealability is Required
                                     February 6, 2020

                Before: JORDAN, KRAUSE and MATEY, Circuit Judges

                            (Opinion filed: February 11, 2020)
                                        _________

                                        OPINION *
                                        _________

PER CURIAM



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Frederick H. Banks appeals from the September 30, 2019 order of the United

States District Court for the Western District of Pennsylvania, which dismissed his

petition filed under 28 U.S.C. § 2241; he also appeals from the order denying his motion

to vacate the September 30 order. Because no substantial question is presented by this

appeal, we will summarily affirm the District Court’s judgment. 1 See Third Circuit LAR

27.4 and I.O.P. 10.6.

       Banks, who was a pretrial detainee at the time, filed his petition in the United

States District Court for the Middle District of Pennsylvania. In the petition, he raised

two claims: (1) certain prison officials violated his constitutional rights by not allowing

delivery of religious (wicca) books or magazines that he had ordered; and (2) the prison

chaplain’s office discriminated against him by failing to confirm a wicca religious meal

for Banks and by raising barriers to a religious visit from a wicca volunteer.

       The Magistrate Judge recommended that the petition be dismissed because Banks

is subject to vexatious-litigant orders (“VLO”) and he had not obtained authorization

from the District Court to file the petition. 2 The District Court adopted the


1
 Because Banks’ § 2241 petition was not a true habeas petition, no certificate of
appealability is required for this appeal.
2
 The VLOs were entered in two of Banks’ other actions, W.D. Civ. Nos. 15-cv-01400
and 15-cv-01385, as expanded by an order in a criminal case, W.D. Crim. No. 15-cr-
00174, in which Banks filed a habeas petition and motions as “next friend” of the
defendant. In the civil actions, the District Court enjoined Banks from filing any
complaint, lawsuit, or mandamus petition without authorization of the District Court.
Banks’ appeal from that order was dismissed for failing to pay the filing fee. C.A. No.
15-3989. In the criminal action, the District Court extended its VLO “to all filings made
                                               2
recommendation and dismissed the petition on September 30. Banks filed a “Notice of

Appeal and Motion to Vacate Memorandum Order.” Banks argued that the September 30

order should be vacated because he never received the Report and Recommendation and

thus did not have a chance to object. He also indicated that he was appealing the

September 30 dismissal.

       On October 9, 2019, the District Court denied the motion to the extent that Banks

sought reconsideration of the September 30 order, declined to take any action to the

extent that Banks had already appealed to this Court, and furnished Banks with a copy of

the Report and Recommendation. Banks then filed an amended notice of appeal,

appealing the October 9 order.

       We have jurisdiction under 28 U.S.C. § 1291. “[T]his Court has made clear that a

pattern of groundless and vexatious litigation will justify an order prohibiting further

filings without permission of the court.” Chipps v. U.S. Dist. Court for the Middle Dist.

of Pa., 

, 73 (3d Cir. 1989) (citing Gagliardi v. McWilliams, 

(3d

Cir. 1987); In re: Oliver, 

(3d Cir. 1982)). Having reviewed the record, we

conclude that the District Court correctly held that Banks’ § 2241 petition was barred in

its entirety by the District Court’s VLOs.




by Mr. Banks, in his name or under his known alias(es), whether on his behalf or on
behalf of anyone else.” Oct. 3, 2017 Order, W.D. Crim. No. 15-cr-00174. The District
Court noted that the order did not apply to filings in Banks’ active criminal case. Banks
appealed and we affirmed the District Court’s order. United States v. Miller, 726 F.
App’x, 107, 108 (3d Cir. 2018) (per curiam) (non-precedential).
                                              3
       Banks claims that the VLOs do not apply to habeas petitions. But Banks sought to

challenge the conditions of his pretrial confinement; his petition did not “qualify as

attacking the fact, duration, or execution of a sentence.” See Velazquez v. Sup’t Fayette

SCI, 

, 158 (3d Cir. 2019). Thus, Banks did not properly bring his claims in

a habeas petition rather than a civil rights complaint. Cf. Cardona v. Bledsoe, 

, 537-38 (3d Cir. 2012) (affirming District Court’s dismissal for lack of jurisdiction of

§ 2241 petition that failed to raise claims challenging the execution of the petitioner’s

sentence). Of course, Banks would need to have advance authorization from the District

Court before filing a civil rights complaint. His petition here is a clear attempt to

circumvent the VLO.

       The District Court properly dismissed Banks’ petition as violating the VLO. We

also agree that Banks’ Motion to Vacate raised no valid reasons for vacating the

September 30 order. For these reasons, we will affirm the District Court’s orders.




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