United States District Court, N.D. New York
RAMIC ELDIN, Plaintiff, pro se.
ORDER and REPORT-RECOMMENDATION
ANDREW T. BAXTER, Magistrate Judge.
The Clerk has sent to the Court a civil rights complaint filed by pro se plaintiff Ramic Eldin. (Dkt. No. 1) Plaintiff Eldin has also filed an application to proceed in forma pauperis ("IFP") and a motion for appointment of counsel. (Dkt. Nos. 3, 4). For the following reasons, this court will grant plaintiff's IFP application, but will recommend dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(ii).
I. In Forma Pauperis ("IFP") Application
A review of plaintiff's IFP application shows that he declares he is unable to pay the filing fee. (Dkt. No. 2). The court finds for purposes of this recommendation, that plaintiff meets the financial criteria for IFP status.
In addition to determining whether plaintiff meets the financial criteria to proceed IFP, the court must also consider the sufficiency of the allegations set forth in the complaint in light of 28 U.S.C. § 1915, which provides that the court shall dismiss the case at any time if the court determines that the action is (i) frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
In determining whether an action is frivolous, the court must consider whether the complaint lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Dismissal of frivolous actions is appropriate to prevent abuses of court process as well as to discourage the waste of judicial resources. Neitzke, 490 U.S. at 327; Harkins v. Eldridge, 505 F.2d 802, 804 (8th Cir. 1974). Although the court has a duty to show liberality toward pro se litigants, and must use extreme caution in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and has had an opportunity to respond, the court still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed. Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (finding that a district court may dismiss a frivolous complaint sua sponte even when plaintiff has paid the filing fee).
To survive dismissal for failure to state a claim, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is "plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Bell Atl. Corp., 550 U.S. at 555). The court will now turn to a consideration of the plaintiff's complaint under the above standards.
The complaint is very short, but almost impossible to read, and it is difficult to determine what plaintiff is asking from the court. (Complaint ("Compl.") (Dkt. No. 1). There is no relief requested in the form-complaint. (Compl. at ¶ 6). Plaintiff has attached a thirty-eight page exhibit to his complaint, and the court will attempt to read all plaintiff's submissions together to determine whether there is any possibility that a claim may be stated. Essentially, plaintiff complains that someone at the Veldin Barber Shop in Utica, New York, perhaps the barber's son,  is implanting surveillance equipment into plaintiff's head. Plaintiff claims that he has been the "victim" of "psychotronic weapons" for fifteen years, and is likely a "microwave victim." (Compl. at ¶ 5).
The court notes that the first page of plaintiff's exhibit contains one line in addition to his signature: "I want to reopen 6:04-CV-241." (Dkt. No. 1-1 at 1). In 04-CV-241, plaintiff sued L.B. Security Company and the Utica Police Department. On June 4, 2004, U.S. District Court Judge David N. Hurd dismissed plaintiff's amended complaint because it did not state a claim for relief. (Dkt. No. 8 in 04-CV-241). Judge Hurd had given plaintiff the opportunity to file an amended complaint when the original failed to comply with the Federal Rules. (Dkt. No. 4 in 04-CV-241).
The amended complaint did not cure the defects outlined by Judge Hurd. The amended complaint contained no specific allegations of fact, but was filled with "sweeping allegations that various parties and institutions were placing hidden surveillance equipment in his residence and the posting the acquired information on the internet." (Id. at 2) (footnote omitted). Notwithstanding the dismissal, plaintiff continued to file documents that were stricken by the court in 2005. (Dkt. Nos. 17-20). On April 6, 2015, plaintiff filed a letter/motion to "reopen" the case. (Dkt. No. 22). On April 10, 2015, Judge Hurd denied the plaintiff's motion and ordered that plaintiff was precluded from filing any additional papers in 04-CV-241 without prior approval of the court. On April 13, 2015, plaintiff filed this new action.
Several of the documents contained in plaintiff's current exhibit are documents that were filed in 04-CV-241. (Dkt. No. 1-1 at CM/ECF pp. 7, 10-12). Plaintiff apparently believes that he has acquired information since his case was dismissed in 2004 that would substantiate plaintiff's claims. He has included two type-written documents that detail his belief about the barber shop and its owner (neither of whom are named Veldin). (Dkt. No. 1-1 at 2-4). In the first memorandum, plaintiff states that the father of the "current" owner of a barbershop, a "deranged elderly man... cuts hear [sic] wau above the ears that opens him a space to cut in a skin and implant electrodes, microchips behind the ears...." ( Id. at 2). Plaintiff later mentions that there is likely an implant in his arm, one in his eye that was removed, and gas that is activated by a device within his nose. ( Id. at 3).
Plaintiff alleges that when he attempted to bring this information to the federal court, he was ignored. ( Id. at 3). Plaintiff states that there is "something shady going on" because instead of meeting him in court, "they" threatened him through microwaves that if he went to court, he would never be able to find a job again. ( Id. at 4). Plaintiff is very concerned about mind control attempts. He attempted to move to Europe, but he was told through microwaves to return to the United States. He hoped that the torture would stop after he came back to the United States, but this "mental water boarding" has continued to the present time. ( Id. )
Plaintiff has also included a memorandum that is dated January 14, 2005. (Dkt. No. 1-1 at 5). This memorandum may have been written by an attorney, because plaintiff is referred to as "client" throughout the document. This document begins by stating that "Client had previously started a lawsuit in Federal Court and that law suit was dismissed." ( Id. ) The memorandum states that the "client" feels that a chip has been implanted in his eyes, so that "he has a sort of tracking device so that they will know where he is at all times." ( Id. ) The chip was implanted in 2002 when plaintiff went to Sangertown Mall for a Glaucoma test. ( Id. ) Plaintiff believed that LB Security of Utica (a defendant in 04-CV-241); the Utica Police Department; the FBI; and potentially Mohawk Valley Community College ("MVCC") were involved in the surveillance. He thought that MVCC may have been using him as a research object for approximately three years. ( Id. )
In this action, plaintiff's exhibit also contains a series of pages that appear to be printed from the Internet. (Dkt. No. 1-1 at 14-38). The pages list articles which relate to many different subjects, but many deal with mind control; human robotization; the CIA; psychotronic government mind control; and remote neural monitoring. Plaintiff also includes a series of excerpts from "Mind Control News Articles." ( Id. at 27-38). Plaintiff alleges that these problems are destroying his employment and his life. ...