United States District Court, S.D. New York
ORDER OF DISMISSAL
COLLEEN McMAHON, CHIEF UNITED STATES DISTRICT JUDGE
brings this action pro se. He invokes the Court's federal
question jurisdiction. By order dated January 3, 2020, the
Court granted Plaintiff's request to proceed without
prepayment of fees, that is, in forma pauperis
(“IFP”). The Court dismisses this action for the
reasons set forth below.
Court must dismiss an IFP complaint, or portion thereof, that
is frivolous or malicious, fails to state a claim on which
relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
1915(e)(2)(B); see Livingston v. Adirondack Beverage
Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must
also dismiss a complaint, or portion thereof, when the Court
lacks subject matter jurisdiction. See Fed.R.Civ.P. 12(h)(3).
While the law mandates dismissal on any of these grounds, the
Court is obliged to construe pro se pleadings liberally,
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and
interpret them to raise the “strongest [claims] that
they suggest, ” Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal
quotation marks and citations omitted, emphasis in original).
is frivolous when it “lacks an arguable basis either in
law or in fact.” Neitzke v. Williams, 490 U.S.
319, 325 (1989), abrogated on other grounds by Bell Atl.
Corp. v. Twombly, 550 U.S. 544 (2007); see also
Denton v. Hernandez, 504 U.S. 25, 33 (1992) (holding
that “a finding of factual frivolousness is appropriate
when the facts alleged rise to the level of the irrational or
the wholly incredible”); Livingston, 141 F.3d
at 437 (“[A]n action is ‘frivolous' when
either: (1) the factual contentions are clearly baseless . .
.; or (2) the claim is based on an indisputably meritless
legal theory.”) (internal quotation marks and citation
asserts that the federal constitutional or statutory basis
for this action is “electronic spying, electronic
misleading me and other, fraud, electronic theft, electronic
[conspiracy] of explo[i]tation and other.” (ECF 2, at
makes the following allegations: “I been electronic spy
by [anonymous] people with electronic this people are
respons[i]ble for part of the electronic theft threats,
stolen information, mislead by electronic the F.B.I. can tell
and prove this people are respo[n]sible.” (Id.
at 5.) He asserts that he has suffered “mental damage,
emotional distress, los[s] of pace.” (Id. at
6.) He seeks as relief “money estimate value pending
justice, my asset back.” (Id.)
when read with the “special solicitude” due pro
se pleadings, Triestman, 470 F.3d at 475,
Plaintiff's claims rise to the level of the irrational,
and there is no legal theory on which he can rely. See
Denton, 504 U.S. at 33; Livingston, 141 F.3d at
courts generally grant a pro se plaintiff an opportunity to
amend a complaint to cure its defects, but leave to amend is
not required where it would be futile. See Hill v.
Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011);
Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988).
Because the defects in Plaintiff's complaint cannot be
cured with an amendment, the Court declines to grant
Plaintiff leave to amend and dismisses this action as
frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i).
has filed numerous actions in December 2019, some of which
have already been dismissed as frivolous. See, e.g.,
Calvino v. Jones, ECF 1:19-CV-11601 (S.D.N.Y. Dec.
23, 2019). And Plaintiff has already been warned that further
vexatious or frivolous litigation in this Court will result
in an order barring him under 28 U.S.C. § 1651 from
filing new civil actions in this Court IFP unless he receives
prior permission. (Id.) The Court reiterates that
Clerk of Court is directed to assign this matter to may
docket, mail a copy of this order to ...