Brown v. USA

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

NKOSI BROWN,

Plaintiff,

21-CV-1146 (CM)

-against-

ORDER OF DISMISSAL

USA; JONATHAN HAMPTON; DWAYNE

NASH,

Defendants.

COLLEEN McMAHON, Chief United States District Judge:

Plaintiff, appearing pro se, brings this action under 28 U.S.C. § 1331, alleging that “my

brain has been hacked by remote neural monitoring.” (Compl. at 2.) By order dated February 10,

2021, the Court granted Plaintiff’s request to proceed without prepayment of fees, that is, in

forma pauperis. The Court dismisses the complaint 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, 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).

A claim is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke v.

Williams, 490 U.S. 319, 324-25 (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, 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).

DISCUSSION

Even when read with the “special solicitude” due pro se pleadings, Triestman, 470 F.3d at

474-75, Plaintiff’s claims rise to the level of the irrational, and there is no legal theory on which

Plaintiff can rely. See Denton, 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, 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.

Plaintiff is warned that further vexatious or frivolous litigation in this Court will result in

an order barring Plaintiff from filing new actions in forma pauperis unless Plaintiff receives prior

permission. See 28 U.S.C. § 1651.

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, 444-45 (1962).

SO ORDERED.

Dated: February 10, 2021 ,

New York, New York hie. Iu

Chief United States District Judge