Banks, Larry M. v. People State IL ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 19, 2007*
Decided December 26, 2007
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 07-3049
LARRY M. BANKS, Appeal from the United States
Petitioner-Appellant, District Court for the Northern
District of Illinois, Eastern Division
v.
No. 07 C 0547
PEOPLE OF THE STATE OF
ILLINOIS, Ronald A. Guzman,
Defendant-Appellee. Judge.
ORDER
In November 2006 Larry Banks was indicted in Illinois state court on
fourteen different charges, including four counts of attempted first-degree murder.
While being held at the Elgin Mental Health Center awaiting trial, Banks filed
what he styled as a petition for a writ of mandamus, see 28 U.S.C. §§ 1361, 1651, in
*
The State of Illinois notified this court that it was never served with process in the
district court and would not be filing a brief or otherwise participating in this appeal. After
examining the appellant’s brief and the record, we have concluded that oral argument is
unnecessary. Accordingly, the appeal is submitted on the appellant’s brief and the record.
See FED. R. APP. P. 34(a)(2).
No. 07-3049 Page 2
federal district court. He argued only that the state prosecution violates his rights
under the Illinois constitution, and that accordingly the federal court should
intervene and stop the ongoing state proceedings. The district court allowed Banks
to proceed in forma pauperis but then dismissed the action sua sponte for failure to
state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2). The
court reasoned that it did not have jurisdiction to issue a writ of mandamus against
state officials for violations of state law. Our review is de novo, see Hoskins v.
Lenear, 395 F.3d 372, 375 (7th Cir. 2005), and we agree that the district court
lacked “jurisdiction to issue a mandamus against state officials for violating their
duties under state law,” Coniston Corp. v. Vill. of Hoffman Estates, 844 F.2d 461,
469 (7th Cir. 1988); see also In re Campbell, 264 F.3d 730, 731 (7th Cir. 2001).
The district court warned Banks that if a “prisoner has had a total of three
federal cases or appeals dismissed as frivolous, malicious or failing to state a claim,
he may not file suit in federal court without prepaying the filing fee unless he is in
imminent danger of serious physical injury.” See 28 U.S.C. § 1915(g); see also
Martin v. United States, 96 F.3d 853, 854 (7th Cir. 1996) (holding that Prisoner
Litigation Reform Act applies to civil mandamus actions). Despite this warning,
Banks brought this appeal. Banks incurred one of his allotted three “strikes” for his
petition in the district court, and this appeal counts as a second.
AFFIRMED.