# Story v. Central Intelligence Agency

> District Court, N.D. New York · October 10, 2024

URL: https://www.frixlaw.com/law-library/cases/10660123

## Case

- **Court:** District Court, N.D. New York
- **Decided:** October 10, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10660123

## How later opinions describe it (automated extraction)

- holding that “§ 1915(d)’s term ‘frivolous,’ when applied to a complaint, embraces not only the inarguable legal conclusion, but also the fanciful factual allegation.”
- explaining that the Universal Declaration is not a treaty or international o agreement that imposes any legal obligations or rights enforceable in federal court

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

MICHAEL BRANDON STORY,
Plaintiff,
V.
No. 1:24-CV-00631
5 CENTRAL INTELLIGENCE AGENCY, (MAD/CFH)

Defendant.

APPEARANCES:
MICHAEL BRANDON STORY
56 Shelterwood Road
Apartment A
East Greenbush, New York 12061
Plaintiff pro se

CHRISTIAN F. HUMMEL
U.S. Magistrate Judge
REPORT-RECOMMENDATION & ORDER
Il. In Forma Pauperis
Plaintiff pro se Michael Brandon Story (“plaintiff’?) commenced this action (No.
1:24-CV-00623) on May 7, 2024, by filing a complaint. See Dkt. No. 1 (“Compl.”). 7 In
ry

Plaintiff has also filed several other actions in this Court, all of which he filed on May 6, 2024, and May
2024. Some of these actions are still pending review by this Court. See Story v. Federal
Communications Commissions, No. 1:24-CV-00625 (MAD/CFH) (Report-Recommendation
recommending dismissal without leave to amend pending review); Story v. Fort Gordon, United States
Military, No. 1:24-CV-00626 (MAD/CFRH) (Report-Recommendation recommending dismissal without
leave to amend pending review); Story v. National Security Agency, 1:24-CV-00626 (MAD/CFH) (Report-
Recommendation recommending dismissal without leave to amend pending review). The following cases
have been deemed related by the Court: 1:24-CV-00623, 1:24-CV-00625, 1:24-CV-00626, 124-CV-
00627, 1:24-CV-631, 1:24-CV-632. See Dkt. No. 5. On August 5, 2024, plaintiff filed a notice of
voluntary dismissal in 1:24-CV-623, Story v. Federal Bureau of Investigation, and 1:24-CV-632 and Story
v. Federal Bureau of Investigation. See Dkt. No. 6 (both cases). On August 8, 2024, the Court entered
orders voluntarily dismissing both cases. See Dkt. No. 7 (both cases).

lieu of paying this Court’s filing fee, he submitted an application for leave to proceed in
forma pauperis (“IFP”). See Dkt. No. 2. The undersigned has reviewed plaintiff's IFP
application and determines that he financially qualifies to proceed IFP.2 Thus, the
Court proceeds to its review of the complaint pursuant to 28 U.S.C. § 1915.
ll. Initial Review
A. Legal Standards
Section 1915 of Title 28 of the United States Code directs that, when a plaintiff
seeks to proceed IFP, “the court shall dismiss the case at any time if the court
determines that . . . the action or appeal (i) is 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). Thus, it is a court's

| Fesponsibility to determine that a plaintiff may properly maintain his complaint before
permitting him to proceed with his action.
Where, as here, the plaintiff proceeds pro se, “the court must construe his
submissions liberally and interpret them to raise the strongest arguments that they
suggest.” Kirkland v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014) (per curiam)
(internal quotation marks omitted); see also Hernandez v. Coughlin, 18 F.3d 133, 136

| (2d Cir. 1994). As the Second Circuit stated,
There are many cases in which we have said that a pro
se litigant is entitled to “special solicitude,” that a pro
se litigant’s submissions must be construed “liberally,” and
that such submissions must be read to raise the strongest
arguments that they “suggest[.]” At the same time, our cases
have also indicated that we cannot read intopro se
submissions claims that are not “consistent” with the pro
? Plaintiff is advised that, although he has been granted IFP status, he is still required to pay any fees and
costs he may incur in this action, including, but not limited to, copying fees, transcript fees, and witness
fees.

se litigant’s allegations, or arguments that the submissions
themselves do not “suggest,” that we should not “excuse
frivolous or vexatious filings by pro se litigants,” and that pro
se status “does not exempt a party from compliance with
relevant rules of procedural and substantive law[.]”
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (citations and
footnote omitted); see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191-92
(2d Cir. 2008).
“The [Second Circuit]’s ‘special solicitude’ for pro se pleadings has its limits,
because pro se pleadings still must comply with . . . the Federal Rules of Civil
Procedure [(‘Fed. R. Civ. P.’)].” Kastner v. Tri State Eye, No. 19-CV-10668 (CM), 2019
WL 6841952, at *2 (S.D.N.Y. Dec. 13, 2019) (quoting Ruotolo v. IRS, 28 F.3d 6, 8 (2d
Cir. 1994)). Pleading guidelines are provided in the Federal Rules of Civil Procedure.
Specifically, Rule 8 requires the pleading to include:
(1) a short and plain statement of the grounds for the court's
jurisdiction . . .;
(2) a short and plain statement of the claim showing that the
pleader is entitled to relief; and
(3) a demand for the relief sought. . .
FeD. R. Civ. P. 8(a). Although “[nJo technical form is required,” the Federal Rules make
clear that each allegation contained in the pleading “must be simple, concise, and
m| direct.” Id. at 8(d). “The purpose . . . is to give fair notice of the claim being asserted so
as to permit the adverse party the opportunity to file a responsive answer, prepare an
adequate defense and determine whether the doctrine of res judicata is applicable.”
Flores v. Graphtex, 189 F.R.D. 54, 54 (N.D.N.Y. 1999) (internal quotation marks and
citations omitted). Allegations that “are so vague as to fail to give the defendants

adequate notice of the claims against them” are subject to dismissal. Sheehy v. Brown,
335 F. App'x 102, 104 (2d Cir. 2009) (summary order).
Further, Fed. R. Civ. P. 10 provides:
[a] party must state its claims or defenses in numbered
paragraphs, each limited as far as practicable to a single set
of circumstances. A later pleading may refer by number to a
paragraph in an earlier pleading. If doing so would promote
° clarity, each claim founded on a separate transaction or
occurrence — and each defense other than a denial — must
be stated in a separate count or defense.
FED. R. Civ. P. 10(b). This serves the purpose of “provid[ing] an easy mode of
identification for referring to a particular paragraph in a prior pleading[.]” Flores, 189
F.R.D. at 54 (internal quotation marks and citations omitted). A complaint that fails to
comply with the pleading requirements “presents far too a heavy burden in terms of a
defendant’s duty to shape a comprehensive defense and provides no meaningful basis
for the Court to assess the sufficiency of their claims.” Gonzales v. Wing, 167 F.R.D.
352, 355 (N.D.N.Y. 1996). As the Second Circuit has held, “[w]hen a complaint does
not comply with the requirement that it be short and plain, the court has the power, on
its own initiative .. . to dismiss the complaint.” Salahuddin v. Cuomo, 861 F.2d 40, 42
(2d Cir. 1988) (citations omitted). However, “[d]ismissal . . . is usually reserved for
| those cases in which the complaint is so confused, ambiguous, vague, or otherwise
unintelligible that its true substance, if any, is well disguised.” Id. (citations omitted).
This Court also has an overarching obligation to determine that a claim is not
legally frivolous before permitting a pro se plaintiff's complaint to proceed. See, e.g.,
Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000).
“Legal frivolity . . . occurs where ‘the claim is based on an indisputably meritless legal

theory [such as] when either the claim lacks an arguable basis in law, or a dispositive
defense clearly exists on the face of the complaint.” Aguilar v. United States, Nos. 99-
MC-0304, 99-MC-0408, 1999 WL 1067841, at *2 (D.Conn. Nov. 8, 1999)? (quoting
Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir.1998)); see also
Neitzke v. Williams, 490 U.S. 319, 325 (1989) (“[D]ismissal is proper only if the legal
o theory ... or factual contentions lack an arguable basis.”).
C. Complaint
Using a civil form complaint for claims pursuant to 42 U.S.C. § 1983,
plaintiff's complaint indicates in the caption and on the second page that he seeks to
sue the Central Intelligence Agency. See Compl. at 2. Elsewhere in the complaint,
when asking if the defendant is a corporation, he states that the defendant is the
Federal Bureau of Investigation. See id. at 4. He indicates that the basis for this
Court’s jurisdiction is federal question and “entrapment under privacy laws article 3.” Id.
at 3. Plaintiff demands $250,000,000. See id. at 4. Plaintiff's statement of the claim
states, “Encroached from civilians reading data from global satellite system.” Id.
Plaintiff's civil cover sheet checks a box that indicates that his matter involves “other
civil rights” and in the section asking for the U.S. civil statute under which he is filing, he
Writes, “Encroachment privacy laws Article 12, 18” and where it asks him to provide a
“brief description of the case, plaintiff indicated, “Global Surveillance satellite system.”
Dkt. No. 1-1 at 1.

3 Any unpublished cases cited within this Report-Recommendation & Order have been provided to
plaintiff.

D. Analysis*
Plaintiff's statement of the claim closely mirrors those made in his related case,
Story v. National Security Agency, 1:24-CV-00626 (MAD/CFH).° As in that case,
plaintiff's complaint here offers no factual support or context for his claim that civilians
are “encroach[ing]’ and “reading data from global satellite system” or how that is
| connected to any valid claims he may have against the Central Intelligence Agency or
Federal Bureau of Investigation. He does not explain what “privacy laws,” “article 3,” or
“Encroachment privacy laws Article 12, 18” is referring to. Compl., Dkt. No. 1-1.
As a threshold issue, plaintiff's complaint fails to meet the requirements of Fed.
R. Civ. P. 8 and 10. It does not set forth claims in numbered paragraphs and, more
significantly, does not set forth claims with sufficient detail to give defendant notice of
the claim against it. See Sheehy, 335 F. App'x at 104; Compl. The complaint provides
no detail, context, or time frame for the alleged surveillance. Plaintiff also does not
provide a “short and plain statement of the grounds for the court’s jurisdiction.” FED. R.
Civ. P. 8; Lamothe v. Brown, 5:22-CV-161 (TJM/CFH), 2023 WL 316013, at *8 (D. Vt.
Jan. 19, 2023) (“The lack of factual support, context, or clear statements of the claims

| * Although the Court generally provides copies of unpublished decisions to pro se plaintiffs, copies of
some cases cited herein will not be provided to plaintiff because the Court sent plaintiff these cases in
connection with another of his cases filed a few weeks earlier. See Story v. Federal Communications
Commissions, No. 1:24-CV-00625 (MAD/CFH). Thus, to provide another set of copies of these cases
would be a waste of resources and is unnecessary. Plaintiff is directed to the unpublished cases
provided with the Report-Recommendation & Order in Story v. Federal Communications Commissions,
No. 1:24-CV-00625 (MAD/CFH). Only those cases cited within this Report-Recommendation & Order
that were not provided along with plaintiff's prior recent cases will be sent to plaintiff at this time.
5 Although these matters could likely be consolidated, because the undersigned recommended dismissal
of both cases, without leave to amend and the consolidation may cause confusion for the pro se plaintiff,
the undersigned is not recommending consolidation here. See Fed. R. Civ. P. 42(a); Johnson v. Celotex
Corp., 899 F.2d 1281, 1284-85 (2d Cir. 1990), cert. denied, 498 U.S. 920 (1990) (noting that district
courts have broad discretion in assessing whether consolidation is appropriate).
8 Plaintiff lists the Federal Bureau of Investigation on the civil cover sheet, but that defendant is not listed
anywhere in the complaint. See Dkt. No. 1-1.

and explanations as to how each defendant is personally involved in the alleged
violation of each area of law or right asserted renders plaintiff's complaint plainly
violative of Rule 8[.]’). It is further unclear how the Central Intelligence Agency is
involved in any surveillance of plaintiff, let alone surveillance done by “civilians.” Compl.
Although plaintiff does not cite the United States’ Constitution, out of special
solicitude, the undersigned has considered whether plaintiff may be attempting to raise
a claim pursuant to the Fourth Amendment right against unreasonable searches.
However, even if plaintiff did seek to proceed under the Fourth Amendment, plaintiff
does not specify whether he contends that he is being surveilled in his home, when he
is driving his vehicle, or operating in public spaces. There is no reasonable expectation
of privacy in public areas and “[a] person travelling [sic] in an automobile on public
thoroughfares has no reasonable expectation of privacy in his movements from one
place to another.” United States v. Knotts, 460 U.S. 276, 281, 103 S.Ct. 1081, 75
L.Ed.2d 55 (1983); see also Katz, 389 U.S. at 351, 88 S.Ct. 507 (“What a person
Knowingly exposes to the public . . . is not a subject of Fourth Amendment protection.”).
Arial surveillance of a residence is also not a violation of the Fourth Amendment. See
California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625 (1988); California v. Ciraolo, 476
m| U.S. 207, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986).
The undersigned is unable to determine to what plaintiff is referring when he cites
“entrapment under privacy laws article 3.” Compl. Generally, to the extent that plaintiff
is alleging that the Central Intelligence Agency somehow entrapped him, entrapment is
an affirmative defense under New York State penal law. “[A] claim of entrapment
cannot be a basis for a section 1983 claim.” Almonte v. Florio, No. 02 CIV. 6722 (SAS),

2004 WL 60306, at *3 (S.D.N.Y. Jan. 13, 2004). “[A]n investigative officer's
participation in an entrapment does not violate the target's constitutional rights, even
though entrapment might be established as a defense to the criminal charge.” Id.
(quoting Smith v. Garretto, 147 F.3d 91, 94 (2d Cir. 1998)). Thus, to the extent plaintiff
claims the Central Intelligence Agency’ engaged in entrapment, he cannot proceed on
any such claim under section 1983. See id.
Further, to the extent plaintiff's complaint makes reference to civilian conduct,
any misconduct that civilians may have committed does not amount to a violation of
plaintiff's constitutional rights as they are not state actors. Compl. at 4. “Because the
United States Constitution regulates only the Government, not private parties, [with
respect to a claim brought under § 1983,] a litigant claiming that his constitutional rights
m| have been violated must first establish that the challenged conduct constitutes ‘state
action.” Flagg v. Yonkers Sav. & Loan Ass'n, 396 F.3d 178, 186 (2d Cir. 2005) (quoting
United States v. Int'l Brotherhood of Teamsters, 941 F.2d 1292, 1295 (2d Cir. 1991)).
“Private parties generally are not state actors and therefore are not usually liable under
[§] 1983.” Yi Sun v. Saslovsky, No. 1:19-CV-10858 (LTS), 2020 WL 6828666, at *7
(S.D.N.Y. Aug. 6, 2020) (citing Sykes v. Bank of America, 723 F.3d 399, 406 (2d Cir.
2013)); see Basile v. Connolly, 538 F. App’x 5, 7 (2d Cir. 2013) (summary order)
(“[P]rivate individuals . . . cannot be sued under 42 U.S.C. § 1983 absent a plausible
allegation that they acted under color of state law.”).8

? The undersigned again notes that plaintiff has not named any individuals who participated in this
alleged entrapment.
8 While private parties generally are not state actors, their conduct can be attributed to
the state for Section 1983 purposes if “(1) the State compelled the conduct [the
“compulsion test’], (2) there is a sufficiently close nexus between the State and the
private conduct [the “joint action test” or “close nexus test”], or (3) the private conduct
consisted of activity that has traditionally been the exclusive prerogative of the state [the

Although not certain, it is possible that plaintiff is attempting to cite the United
Nations Universal Declaration of Human Rights? “which is a non-binding declaration that
provides no private rights of action.” United States v. Chatman, 351 F. App'x 740, 741
(3d Cir. 2009) (summary order) (citing Sosa v. Alvarez—Machain, 542 U.S. 692, 734
(2004) (explaining that the Universal Declaration is not a treaty or international
o agreement that imposes any legal obligations or rights enforceable in federal court)).
Thus, even if it is relevant to the issue of privacy, its alleged violation is not subject to
review before this Court. See id.
Alternatively, he may be referring to the General Data Protection Regulation, a
set of European Union privacy laws that do not apply to the United States. See
Commission Regulation 2016/679, of General Data Protection Regulation, 2018 O.J.,
m| available at https://gdpr-info.eu/ (last visited Oct. 9, 2024). Thus, even if this is the basis
for plaintiffs claims, he cannot seek any relief in this Court for any alleged violations.
Even if the Court could ascertain the basis or bases of plaintiff's claims, the
claims almost certainly would also fail because plaintiff seeks to sue the Central
Intelligence Agency, which, as an agency of the United States government, is subject to
sovereign immunity absent a waiver. “To begin with, the doctrine of sovereign immunity
rr!

“public function test’].” Hogan v. A.O. Fox Mem'l Hosp., 346 F. App'x 627, 629 (2d Cir.
2009) (summary order) (citing Sybalski v. Indep. Grp. Home Living Program, Inc., 546
F.3d 255, 257 (2d Cir. 2008)).
Jeanty v. Sciortino, 669 F. Supp. 3d 96, 112-13 (N.D.N.Y. 2023), reconsideration denied sub nom. Jeanty
v. Bagley, No. 6:22-CV-319 (BKS/TWD), 2023 WL 5175832 (N.D.N.Y. Aug. 11, 2023). Opportunity to
amend to permit plaintiff the chance to name individual civilians and attempt to demonstrate one of these
exceptions — something that is not even hinted at in the current pleading — is not recommended as the
undersigned concludes that the underlying claims are fanciful and frivolous.
® This document has an article 3, but it does not appear to relate to privacy or “entrapment.” See United
Nations Universal Declaration of Human Rights. https:/Awww.un.org/en/about-us/universal-declaration-of-
human-rights (last visited Oct.9, 2024).

bars federal courts from hearing all suits against the federal government, including suits
against federal agencies, unless sovereign immunity has been waived.” Cox v. New
York State, No. 1:23-CV-0060 (MAD/CFH), 2023 WL 2770368, at *5 (N.D.N.Y. Apr. 4,
2023), report and recommendation adopted, No. 1:23-CV-00060 (MAD/CFH), 2023 WL
6862505 (N.D.N.Y. Oct. 18, 2023) (citation omitted).
° To the extent plaintiff seeks to sue the United States or federal agencies
for... violations of his constitutional rights, regardless of the form of relief
requested, plaintiff cannot proceed under Bivens. See, e.g., Perez v.
Hawk, 302 F. Supp. 2d 9, 18 (E.D.N.Y. 2004) (“[T]he United States is
immune from constitutional tort claims against the United States, its
agencies, or federal employees sued in their official capacities.”); Bivens
v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).
Further, even if plaintiff had properly named individual federal officers as
defendants — which he has not — very few constitutional claims can
proceed under Bivens. The Supreme Court has held that Bivens allows
claims with respect to two additional and specific constitutional claims:
pursuant to the Fifth Amendment relating to sex discrimination in
employment and the Eighth Amendment Cruel and Unusual Punishments
Clause for failure to provide adequate medical treatment to a federal
prisoner.
Cox, 2023 WL 2770368, at “6. Here, plaintiff has not named any individual federal
officers. Even if he could amend to identify individual officers, it is clear that even under
the most liberal interpretations, he has not raised claims that would fall into these
narrow Bivens exceptions to sovereign immunity. See Compl.
in The Supreme Court of the United States has held that a claim is frivolous “when
the facts alleged arise to the level of the irrational or the wholly incredible, whether or
not there are judicially noticeable facts available to contradict them.” Denton v.
Hernandez, 504 U.S. 25, 33 (1992); see also Neitzke v. Williams, 490 U.S. 319, 325
(1989) (holding that “§ 1915(d)’s term ‘frivolous,’ when applied to a complaint, embraces
not only the inarguable legal conclusion, but also the fanciful factual allegation.”). Many

10

Courts, including those in this Circuit, have dismissed satellite surveillance claims by the
government as frivolous. See, e.g., Quarles v. Murphy, 17-CV-76 (AMD), 2017 WL
5558644 (E.D.N.Y. Mar. 6, 2017) (holding that the plaintiffs claims of FBI surveillance,
including allegations of audio and video surveillance, “rise to the level of the irrational or
the wholly incredible.”). The undersigned concludes that plaintiffs assertions of
| encroachment due to the “reading [of] data” from a “global satellite system” by the
Central Intelligence Agency or the Federal Bureau of Investigation or “civilians” “rise[s]
to the level of irrational or the wholly incredible.” Id. Accordingly, it is recommended
that the action be dismissed as “frivolous or malicious” pursuant to 28 U.S.C.
1915(e)(2)(B)(i).
Although the district court generally affords a pro se plaintiff at least one
| Opportunity to amend prior to outright dismissal, this is not required when, as where, it is
clear that any attempt to amend would be futile. See Cuoco v. Moritsugu, 222 F.3d 99,
112 (2d Cir. 2000); Dolan v. Connolly, 794 F.3d 290, 295 (2d Cir. 2015). Plaintiff has
failed to meet the pleading requirements and his claims are “essentially fictitious[.]”
Hines v. United States, No. 6:19-CV-06837 (MAT), 2020 WL 570605, at *2 (W.D.N.Y.
Feb. 5, 2020). Plaintiffs complaint is “so attenuated and unsubstantial as to be
absolutely devoid of merit[.]” Hines,2020 WL 570605, at *2. As no better pleading
would cure these defects, the undersigned recommends dismissal without leave to
amend. See, e.g., Sherven v. United States, No. 1:23-CV-02912 (UNA), 2023 WL
7128466, at *1 (E.D.Ca. Oct. 27, 2023) (dismissing a case following initial review when
“the facts alleged rise to the level of the irrational or the wholly incredible, or postulat[e]
events and circumstances of a wholly fanciful kind[.]’) (internal quotation marks and

11

citations omitted). Firstly, plaintiff claims that defendant engaged in entrapment, and
even if plaintiff could amend to provide detail or name an individual federal officer, there
is no basis for a section 1983 claim based on entrapment. See Almonte, 2004 WL
60306, at *3.
Plaintiff's complaint, which refers, like his earlier cases, to satellite monitoring or
o reading of “data” by government agencies or “civilians” through a “global satellite
system,” is clearly “a case[] in which the complaint[s are] so confused, ambiguous,
vague, or otherwise unintelligible that its true substance, if any, is well disguised.”
Lamothe, 2023 WL 316013, at *7 (quoting Salahuddin, 861 F.2d at 42 (citations
omitted)); Hatser, 2018 WL 816846, at *3 (“Even in light of the special solicitude to be
accorded to pro se plaintiffs’ complaints, ‘courts cannot read into pro se submissions
Claims that are not consistent with the pro se litigant's allegations[.]””) (quoting
Giamattista v. Am. Airlines, Inc., 584 F. App’x. 23, 25 (2d Cir. 2010) (summary order)).

lll. Leave to Amend
Generally, “[a] pro se complaint should not be dismissed without the Court
granting leave to amend at least once when a liberal reading of the complaint gives any
indication that a valid claim might be stated.” Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir.
2014) (citation omitted). “However, if the problems with a complaint are ‘substantive’
rather than the result of an ‘inadequately or inartfully pleaded’ complaint, an opportunity
to re-plead would be ‘futile’ and ‘should be denied.” Edwards v. Penix, 388 F. Supp. 3d
135, 144-45 (N.D.N.Y. 2019) (quoting Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.
2000)). “When the basis for dismissal is a defendant's entitlement to immunity, for

12

example, the pleading defects are ‘substantive rather than formal and [] leave to amend
would be futile.”” Mahmood, 2020 WL 3965125, at *2 (N.D.N.Y. Mar. 17, 2020) (quoting
Jackson v. Pfau, 523 F. App’x 736, 737 (2d Cir. 2013) (summary order)).
An opportunity to amend is not required when, as where, it is clear that any
attempt to amend would be futile. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.
° 2000); Dolan v. Connolly, 794 F.3d 290, 295 (2d Cir. 2015). Plaintiff has failed to meet
the pleading requirements under Rules 8 and 10, but beyond that, his claims are
“essentially fictitious[.]'° See supra. Plaintiff's complaint is “so attenuated and
unsubstantial as to be absolutely devoid of merit[.]” Hines, 2020 WL 570605, at *2.
Plaintiff has filed several actions in this District, over a period of two days, with closely
related or nearly identical claims about surveillance monitoring by various government
m| entities, and in all of the cases that are still open, recommendations for dismissal are
pending District Court review. See supra n.1. Plaintiffs allegations are clearly “‘a case[]
in which the complaint[s are] so confused, ambiguous, vague, or otherwise unintelligible
that its true substance, if any, is well disguised.”” Lamothe, 2023 WL 316013, at *7
(quoting Salahuddin, 861 F.2d at 42 (citations omitted)); Hatser, 2018 WL 816846, at *3
(“Even in light of the special solicitude to be accorded to pro se plaintiffs’ complaints,
| Courts cannot read into pro se submissions claims that are not consistent with the pro
se litigant's allegations[.]”) (quoting Giamattista v. Am. Airlines, Inc., 584 F. App’x. 23,
25 (2d Cir. 2010) (summary order)). Review of this complaint, especially in
consideration with those actions, reveals that no better pleading would cure these

10 As to the alternate recommendation for dismissal due to sovereign immunity, the undersigned notes
that it is not recommended that leave to amend be permitted to clarify whether he first sought to proceed
wan an FTCA claim via the appropriate agency because it is clear that there is no substance to his

13

defects. Thus, the undersigned recommends dismissal without leave to amend. See,
e.g., Sherven v. United States, No. 1:23-CV-02912 (UNA), 2023 WL 7128466, at *1
(E.D.Ca. Oct. 27, 2023) (dismissing a case without leave to amend following initial
review when “the facts alleged rise to the level of the irrational or the wholly incredible,
or postulat[e] events and circumstances of a wholly fanciful kind[.]’) (internal quotation
marks and citations omitted). Accordingly, it is recommended the matter be dismissed
without prejudice’ and without opportunity to amend.

IV. Conclusion
WHEREFORE, for the reasons stated herein, it is hereby
ORDERED, that plaintiff's motion to proceed IFP (Dkt. No. 2) be GRANTED; and
mit is
RECOMMENDED, that plaintiff's complaint (Dkt. No. 1) be DISMISSED without
prejudice and without leave to amend, and it is
ORDERED, that the Clerk serve a copy of this Report-Recommendation & Order
on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
m Pursuant to 28 U.S.C. 636(b)(1) and Local Rule 72.1(c), the parties have
fourteen days within which to file written objections to the foregoing report. Such
objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS

11 “A dismissal for lack of subject matter jurisdiction must be without prejudice, because ‘without
jurisdiction, the district court lacks the power to adjudicate the merits of the case.” McKie v. Kornegay,
No. 21-1943, 2022 WL 4241355, at *2 (2d Cir. Sept. 15, 2022) (summary order) (quoting Carter v.
HealthPort Techs., LLC, 822 F.3d 47, 54-55 (2d Cir. 2016)).
14

REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW.
See Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of
Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); FED. R.
Civ. P. 72, 6(a).
Dated: October 10, 2024
Albany, New York
° CSburka- Kern)
Christian F. Hummel
U.S. Magistrate Judge

I

tr!

15

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10660123. Public record. Not legal advice.