Frederick Banks v. Kelly Forbes , 707 F. App'x 771 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-7207
FREDERICK BANKS,
Petitioner - Appellant,
v.
KELLY FORBES, FMC Butner; U.S. MARSHAL’S SERVICE; MARK
HORNAK; D. DREW, Warden, USP Atlanta; J.C. HOLLAND, Warden, FMC
Butner; S.A. SEAN LANGFORD; CHRISTOPHER ASHER WRAY; MIKE
POMPEO, Central Intelligence Agency; ROBERT CESSAR, Asst. US Attorney;
SOO SONG, US Attorney; FEDERAL BUREAU OF PRISONS; THOMAS
KANE, Acting Director, Federal BOP,
Respondents - Appellees.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Terrence W. Boyle, District Judge. (5:17-hc-02102-BO)
Submitted: December 21, 2017 Decided: December 28, 2017
Before WILKINSON and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Frederick Hamilton Banks, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Federal pretrial detainee Frederick Banks appeals the district court’s order
dismissing without prejudice his petition seeking a writ of habeas corpus, pursuant to 28
U.S.C. § 2241 (2012), and a writ of mandamus, pursuant to 28 U.S.C. § 1361 (2012). We
agree with the district court that, because a Pennsylvania District Court is in the process
of determining Banks’ competency to stand trial, Banks’ request for mandamus and
habeas relief is premature. See Heckler v. Ringer, 466 U.S. 602, 616 (1984) (“The
common-law writ of mandamus, as codified in 28 U.S.C. § 1361, is 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.”); Timms v. Johns, 627 F.3d 525, 530
(4th Cir. 2010) (“[W]e hold that Timms should have exhausted his alternative remedies in
the Commitment Action before availing himself of habeas review under § 2241.”). Thus,
we grant Bank’s application to proceed in forma pauperis and affirm the district court’s
judgment. See Banks v. Forbes, No. 5:17-hc-02102-BO (E.D.N.C. Aug. 28, 2017). We
dispense with oral argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would not aid the decisional
process.
AFFIRMED
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