Pine v. FBI, 1:19-cv-02586

1:19-cv-02586 | S.D.N.Y. | May 6, 2019

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK MARK PINE,

Plaintiff, 19-CV-2586 (CM) -against- ORDER OF DISMISSAL FBI, Defendant. COLLEEN McMAHON, Chief United States District Judge: Plaintiff, appearing pro se , brings this action against the Federal Bureau of Investigation (FBI). By order dated April 26, 2019, the Court granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma pauperis . The Court dismisses this action for the reasons set forth below.

STANDARD OF REVIEW The Court must dismiss a complaint, or portion thereof, that is frivolous or malicious, fails to state a claim upon 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), 1915A(b); see Abbas v. Dixon , 480 F.3d 636, 639 (2d Cir. 2007). 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" date_filed="2009-07-09" court="2d Cir." case_name="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" date_filed="2006-12-05" court="2d Cir." case_name="Ben Gary Triestman v. Federal Bureau of Prisons, United States of America">470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original).

A claim is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams , 490 U.S. 319" date_filed="1989-05-01" court="SCOTUS" case_name="Neitzke v. Williams">490 U.S. 319, 324-25 (1989), abrogated on other grounds by Bell Atl. Corp. v. Twombly , 550 U.S. 544" date_filed="2007-05-21" court="SCOTUS" case_name="Bell Atlantic Corp. v. Twombly">550 U.S. 544 (2007); see also Denton v. Hernandez , 504 U.S. 25" date_filed="1992-05-04" court="SCOTUS" case_name="Denton v. Hernandez">504 U.S. 25, 32-33 (1992) (holding that “finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible”); Livingston v. Adirondack Beverage Co. , 141 F.3d 434, 437 (2d Cir. 1998) (“[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 omitted).

BACKGROUND

Plaintiff brings this action against the FBI, alleging that “it is not upholding the law on purpose in [his] humble opinion.” (ECF No. 2, at 8.) Plaintiff makes the following allegations: Unspecified people with whom he grew up, and whom he refers to as his “civilian enemies,” use their connections with law enforcement in New York, Florida, and elsewhere to “professionally sabotage people” including Plaintiff. ( Id. ) The FBI knows about the alleged sabotage and “[they] either turn their head[s] the other way or they are actually helping” with the sabotage. ( Id. ) In support of his claims, Plaintiff refers to an article in the New York Post that allegedly describes how one of his “civilian enemies” sends drugs over state lines, drugs women, and commits financial fraud. ( Id. ) Plaintiff called and emailed the New York office of the FBI about the article, but asserts that the FBI “turn[ed] their head[s] the other way because this person is connected with law enforcement.” ( Id. ) Plaintiff seeks $510,000 in damages.

DISCUSSION

Even 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. 25" date_filed="1992-05-04" court="SCOTUS" case_name="Denton v. Hernandez">504 U.S. at 33; Livingston , 141 F.3d at 437.

District 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" date_filed="2011-09-15" court="2d Cir." case_name="Hill v. Curcione">657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo , 861 F.2d 40" date_filed="1988-11-04" court="2d Cir." case_name="Richard Salahuddin v. Mario 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.

CONCLUSION

The Clerk of Court is directed to assign this matter to my docket, mail a copy of this order to Plaintiff, and note service on the docket. Plaintiff’s complaint is dismissed as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i). The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would

not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States , 369 U.S. 438" date_filed="1962-04-30" court="SCOTUS" case_name="Coppedge v. United States">369 U.S. 438, 444-45 (1962).

The Clerk of Court is directed to docket this as a “written opinion” within the meaning of Section 205(a)(5) of the E-Government Act of 2002.

SO ORDERED.

Dated: May 6, 2019

New York, New York COLLEEN McMAHON Chief United States District Judge