Floyd v. United States

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No. 15-793C FILED

(Filed: February 24, 2016)

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U.S, COURT OF

HERBERT R. FLOYD, ,I.

FEDERAL CLAIMS

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Plaintiff, * Pro Se Plaintiff; Lack ofJurisdiction;

* Failure to State a Claim; Patent;

+ Statute of Limitations; Application to

-, * Proceed In Forma Pauperis;

i 28 U.S.C. $ 1498; RCFC 12(bX1);

THE LINITED STATES, RCFC 12(bX6)

Defendant. *

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Herbert R. Flovd, Uniondale Long Island, NY, plq se.

William J. Nichols, United States Depai:tment of Justice, Washington, DC, for defendant.

OPINION AND ORDER

SWEENEY, Judge

On July 27, 2015, Herbert R. Floyd ("plaintiff'), appearing p1q se, filed a complaint and

an application to proceed in forma pauperis. In his complaint, plaintiff alleges that the New

York City Police Department ("NYPD") infringed his patent for keyless vehicle entry fingerprint

technology and seeks monetary damages pursuant to 35 U.S.C. S 271 (2012). Defendant filed a

motion to dismiss plaintiff s amended complaint and an opposition to plaintiff s application.

Because the court lacks jurisdiction over plaintiff s complaint, it is dismissed ln addition,

plaintiffs application to proceed in forma paUpqfs is denied because his complaint is frivolous.

I. BACKGROUND

Plaintiffs one-page complaint, with attachments,r includes a copy ofhis September 2,

2003 patent for a "GOD Fingerprint - Computer Entry technology," an "[i]nvention" that he

IPlaintiff attaches 3l pages to the complaint, which are not consecutively numbered.

Although two pages purport to be "Exhibit B" and "Exhibit C," there is no "Exhibit A," and

plaintiffhas not identified any other exhibits among the remaining pages, including among the

pages that follow "Exhibit C." The court will assign chronological numbers "l" through "31" to

the attachments in the order in which they appear. Some of the altached pages appear to be

randomly attached, as they are not useful in this proceeding, and plaintiffdoes not explain their

relevance. Specifically, one page features the results of a Google.com search, listing links to

alleges "will provide keyJess entry into condominiums, housing Developments, homes,

apartment houses, and Businesses, such as Police Precincts for: fingerprinting criminals, thus,

using devices that violate Plaintiffs U.S. patent."2 Compl. 1. The '920 patent includes two

independent claims, both of which purport to describe the subject matter ofthe invention and that

require, among other things, a frngerprint-operated system that "unlock[s]" or "start[s]" a

vehicle. Id. at 14. The abstract for the '920 patent explains that it is:

A fingerprint entry and engine starting system, including a computerized video

recorder, and transmitter installed in a driver's door ofa vehicle housing a

transparent shield. The recorder is perpendicular via position under this transparent

shield. Since this shield is installed in the vehicle's door handle, a legal user will

press the shield upon its left side portion, such as to start the vehicle's engine. As a

result, whenever the righthand portion upon the shield is pushed by a legal user, the

vehicle's doorlocks are freed. This is done when the recorder is actuated whereas a

fingerprint of a user is transformed from optical information to computer data when

the shield is pressed. This data is transmitted and compared with preset data, such

that when this preset data stored in a memory matches with transformed data, coils

via actuators for releasing the vehicle's door-locks are actuated. An ignition switch

actuates a motor ofan engine starter also, as a match is defrned, which drives the

starter and starts the engine of the vehicle. This is accomplished, when an activating

signal is outputted from a CPU. This CPU defines the memory whereby outputting

the activating signal only, whenever the shield is pushed by a legal user lor actuating

two pushbutton switches. Four fingerprint input pushbutton switches outwardly

upon the door causes one power window, a heater, a trunk and a hood to be operated

also, before entering the vehicle without a key.

Id. at 13. Further, the '920 patent encompasses:

[a] keyless fingerprint operated lock and ignition on a vehicle door, comprising:

websites regarding precincts in New York City. Moreover, another page, labeled 'Technology,'

appears to be a printed version ofa Wikipedia page describing a "Live scan" device "used for

scanning live fingerprints into [an] AFIS [Automated Fingerprint Identification System]" to

"match a print." Compl. 12. Still another page is a press release that describes the sale and

delivery of a "ClearlD2000(TM) electronic fingerprint scanning/capture system to the Campbell

County Coroner's office in Gillette, Wyoming" by a company named BSI2000, Inc. Id. at 15. in

addition, thee pages ofthe attachment are identical copies ofa Rule 7.1 of the Rules ofthe

United States Court of Federal Claims ("RCFC") Disclosure Statement. Because plaintiff is an

individual, not a corporation, a RCFC 7.1 disclosure statement is inapplicable. Plaintiff also

attaches the charging documents from the Criminal Court ofthe City ofNew York for his anest.

The only pertincnt pages attached to the complaint are pages 13-3 1, which appear to comprise

plaintiff s patent, Patent Number US 6,614,920 B2 (the "'920 patent"), issued on September 2,

2003.

2 In evaluating a motion to dismiss a plaintiff s complaint, the court will consider the

allegations in the complaint and any documents attached thereto. See Musuneayi v. United

states. 86 Fed. Cl. 121. 122 n.2 (2009\.

a fingerprint sensor mounted on the exterior side ofsaid door for placement ofa

person's finger; said sensor having a first finger placement surface for unlocking a

door, a second finger placement surface for starting said vehicle, an image sensor

capturing a fingerprint image when a finger is placed on either ofsaid surfaces, and a

transmitter for transmitting said fingerprint image; a vehicle mounted controller

receiving said transmitted fingerprint image, comparing said image with a previously

stored fingerprint ofa person authorized to use said vehicle, and when the

comparison yields a match, said controller activating an actuator for unlocking said

door when said first finger placement surface is pressed, and activating an actuator

for starting said vehicle when said second fingerprint placement surface is pressed.

Id. at 14.

Plaintiff alleges that on June 3,2007, he had a dispute with an acquaintance, which

awakened her cat, causing the cat to scratch her [eg. Further, plaintiff avers, his acquaintance

called the police, and an NYPD police officer subsequently photographed her leg and anested

plaintiff for assault in the third degree. According to plaintiff, when the police department took

his fingerprints, he observed that it used a "computer fingerprinting apparatus embodying

[p]laintiffs [p]atented [i]nvention." Id. at l . Plaintiff further alleges that the Federal Bureau of

Investigation ("FBI") operates 56 field offices in major cities throughout the United States, and

in San Juan Puerto Rico." Id. He argues that the "U[niled] S[tates]," through such agencies as

the FBI, was infringing" his patent, and seeks monetary damages pursuant to 35 U.S.C. $ 271.

rd.

Defendant filed a motion to dismiss plaintiff s complaint pursuant to Rule 12(b)(l) of the

Rules of the United States Court of Federal Claims C'RCFC') for lack of subject matter

jurisdiction, and pursuant to RCFC l2(bX6) for failure to state a claim. The motion is fully

briefed, and the court deems oral argument unnecessary.

II. STANDARD OF REVIEW

When considering a motion to dismiss for lack of subject matter jurisdiction pursuant to

RCFC 12(bxl), as with a motion to dismiss pursuant to RCFC 12(bX6), the court accepts as true

all undisputed factual allegations made by the nonmoving party, and draws ali reasonable

inferences from those facts in the nonmoving party's favor. Westlands Water Dist. v. United

srares, 109 Fed. cl. 177, 190 (2013).

A. RCFC 12(bxl)

Whether the court has jurisdiction to decide the merits of a case is a threshold matter.

See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83,94-95 (1998). "Without jurisdiction the

court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it

ceases to exist, the only function remaining to the court is that of announcing the fact and

dismissing the cause." Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868). The parties, or

the court, sua sponte, may challenge the existence of subject matter jurisdiction at any time.

Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006).

A pro se plaintiffs complaint, "'however inartfully pleaded,' must be held to 'less

stringent standards than formal pleadings drafted by lawyers' . . . ." Hughes v. Rowe,449 U.S.

5, 10n.7(1980) (quoting Haines v. Kemer,404 U.S.519,520-21 (1972)). However, aprs!9

plaintiff is not excused from meeting basic jurisdictional requirements. See Henke, 60 F.3d at

799 ("The fact that [the plaintifl] acted pro se in the drafting ofhis complaint may explain its

ambiguities, but it does not excuse its failures, if such there be."). In other words, a plq se

plaintiff is not excused from his burden ofproving, by a preponderance ofthe evidence, that the

court possesses jurisdiction. See McNutt v. Gen. Motors Acceptance Com., 298 U.S. 178, 189

(1936); Reynolds v. Army & Air Force Exch. Serv.,846F.2d,746,748 (Fed. Cir. 1988). The

plaintiff cannot rely solely on allegations in the complaint, but must bring forth relevant,

adequate proof to establish jurisdiction. See McNutt, 298 U.S. at 189. Ultimately, if the court

finds that it lacks subject matter jurisdiction, then it must dismiss the claim. Matthews v. United

States, 72 Fed. C|.274,278 (2006); see also RCFC 12(hX3) ("Ifthe courr determines at any time

that it lacks subject-matter jurisdiction, the court must dismiss the action.").

B. RCFC l2(bx6)

A claim that survives a jurisdictional challenge remains subject to dismissal under RCFC

l2(bX6) if it does not provide a basis for the court to grant relief. Lindsav v. United States, 295

F.3d 1252,1257 (Fed. Cir.2002) ("A motion to dismiss . . . for failure to state a claim upon

which relief can be granted is appropriate when the facts asserted by the claimant do not entitle

him to a legal remedy."). A motion to dismiss for failure to state a claim upon which relief can

be granted pursuant to RCFC 12(bX6) tests the sufficiency ofthe complaint. Bell Atl. Com. v.

Twombly, 550 U.S. 544, 555-56 (2007); see also RhinoComs Ltd. Co. v. United States, 87 Fed.

Cl. 481 , 492 (2009) C'A molion made under Rule 12(b)(6) challenges the legal theory of the

complaint, not the sufficiency of any evidence that might be adduced."). The United States

Supreme Court ("Supreme Court") explained in Twombly the degree of specificity with which a

plaintiff must plead facts sufficient to survive such a motion, stating that "a plaintiffs obligation

to provide the 'grounds' of his 'entitle[ment] to relief requires more than labels and conclusions,

and a formulaic recitation of the elements of a cause of action will not do." 550 U.S. at 555

(citation omitted). Although a complaint need not contain "detailed factual allegations," id. at

555, it should contain "enough facts to state a claim to reliefthat is plausible on its face," id. at

570; see also id. at 555 (noting that "factual allegations must be enough to raise a right to relief

above the speculative level"). "A claim has facial plausibility when the plaintiff pleads factuai

content that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Com., 550

U.S. at 556). "[O]nce a claim has been stated adequately, it may be supported by showing any

set of facts consistent with the allegations in the complaint." Bell Atl. Com., 550 U.S. at 546.

Indeed, "[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is

entitled to offer evidence to support the claims." Scheuerv. Rhodes,4i6 U.S.232,236(1974),

ovemrled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 814- 19 (1982).

C. Tucker Act

The ability of the United States Court of Federal Claims ("Cow of Federal Claims") to

entertain suits against the United States is limited. "The United States, as sovereign, is immune

from suit save as it consents to be sued." United States v. Sherwood,3i2 U.S. 534, 536 (1941).

A waiver of immunity "cannot be implied but must be unequivocally expressed." United Slates

v. King, 395 U.S. l, 4 (1969). The Tucker Act, the principal statute goveming the jurisdiction of

this court, waives sovereign immurity for claims against the United States not sounding in tort

that are founded upon the Constitution, a federal statute or regulation, or an express or implied

contract with the United States. 28 U.S.C. g 1a91(aXl). However, the Tucker Act is merely a

jurisdictional statute and "does not create any substantive right enforceable against the United

States for money damages." United States v. Testan,424U.5.392,398 (1976). Instead, the

substantive right must appear in another source of law, such as a "money-mandating

constitutional provision, statute or regulation that has been violated, or an express or implied

contract with the United States." Loveladies Harbor. Inc. v. United States. 27 F.3d 1545. 1554

(Fed. Cir. 1994) (en banc).

D. Patent Infringement Under 28 U.S.C. S 1498

As described in 28 U.S.C. $ 1498, the United States has waived sovereign immunity and

granted this court exclusive jurisdiction to adjudicate patent infringement claims against the

federal govemment "[w]henever an invention described in and covered by a patent ofthe United

States is used or manufactured by or for the United States without license ofthe owner thereofor

lawful right to use or manufacture the same." 28 U.S.C. $ 1a98(a) (2012); see also Martin v.

United States,99 Fed. Cl. 627,632-33 (2011) (noting that Section 1498, rather than the Tucker

Act, 28 U.S.C. $ 1a91(a), grants this court jurisdiction over patent infringement claims against

the United States). The statute further states that "the use or manufacture of an invention

described in and covered by a patent of the United States by a contractor, a subcontractor, or any

person, firm, or corporation for the Govemment and with the authorization or consent of the

Govemment, shall be construed as use or manufacture for the United States." 28 U.S.C. $

1498(a). The unauthorized "use or manufacture ofan invention" under Section 1498(a) is

analogous to a taking ofproperty under the Fifth Amendment ofthe United States Constitution.

See Motorola. Inc. v. United States,729F.2d765,768 (Fed. Cir. 1984); see also Huehes Aircraft

Co. v. United States,29 Fed. Cl. 197 ,208 (1993). In this respect, the govemment "takes" a non-

exclusive and compulsory license to any United States patent "as of the instant the invention is

first used or manufactured by [or for] the [g]overnment." Decca Ltd. v. United States , 640 F .2d

1156, 1166 (Ct. Cl. 1980).

E. Statute of Limitations

A cause of action under 28 U.S.C. $ 1498 accrues "when the accused [instrumentality] is

first available for use." Unitrac. LLC v. United States, 113 Fed. Cl. 156, 160 (2013) (intemal

quotation marks omitted), aff d, 589 Fed. App'x 990 (Fed. Cir. 2015) (unpublished). Section

1498(a) "authorizes the Government to take, through exercise of its power of eminent domain, a

license in any United States patent." De Graffenried v. United States,228 CI. CI.780,783

(1981) (intemal quotation marks omitted). The United States Court of Claims, whose precedent

is binding on this court, has held that "each individual member of the universe of infringing

devices . . . can be taken only once in its lifetime, and if that taking occurs prior to the six-year

period which immediately precedes the filing of the lawsuit in the Court of Claims, then recovery

as to that pafiicular device is barred forever by 28 U.S.C. $ 2501." Starobin v. United States,

662F.2d747,749-50 (Ct. Cl., 1981) (footnote omitted). Any "ongoing infringement is

inelevant to this Court's jurisdiction in the context ofthe statute of limitations . . . [as] the

Govemment's alleged ongoing infringement cannot justify jurisdiction simply because at least

one act of infringement has occurred within the statute of limitations period." Unitrac, 113 Fed.

Cl. at 160-61.

III. DISCUSSION

The court lacks subject matter jurisdiction in this case because plaintiffs claims are

outside of the applicable statute of limitations. In addition, plaintiff alleges that he is entitled to

damages under 35 U.S.C. $ 271, a statfie not within this court's jurisdiction. To the contrary,

that statute addresses a private actor's liability for patent infringement. Indeed, in order to

invoke this court's jurisdiction for patent infringement against the United States, the appropriate

statute is 28 U.S.C. $ 1498, which specifically provides a remedy in this court "when the United

States infringes a patent, or when another person infringes a patent acting on behalfofthe United

States." Sheridan,20l5 WL5845301,at*2; see also FastShip LLC v. United States,l22Fed.

C|.71,78 (2015) (holding that "[g]iven that the govemment has waived sovereign immunity

only for the compulsory taking of a non-exclusive patent license, government liability under 28

U.S.C. $ 1498 diverges from private liability under 35 U.S.C. $ 271).

Here, plaintilf admits that he leamed of the alleged infringement on June 3, 2007,

subsequent to his anest and fingerprinting by the NYPD, when he observed that the NYPD's

fingerprinting technology purportedly violated his patent. However, plaintiff did not file a

complaint in this court until J:uly 27,2015, more than six years later. If the United States had

infringed his patent between July 27,2009 and July 27 ,2015----or the six-year period before he

Itled his complaint-a claim for infringement would be timely. Yet because the NYPD's

"apparatus" that plaintiff alleges "embod[ied]" his invention was first available for use by at least

June 3, 2007, the day that he leamed of it, his patent was purportedly infringed on that date.

Compl. I . Consequently, because the '920 patent was allegedly infringed before July 27, 2009-

or in other words, before the six-year period immediately preceding the filing of his complaint in

this court-his claims are barred by the statute of limitations. Accordingly, because plaintiff s

cause ofaction falls outside ofthe six-year statute of limitations, the court lacks subject matter

jurisdiction over plaintiff s claims and they must be dismissed.

Altematively, this court lacks subject matter jurisdiction to entertain plaintiff s claims

because he alleges harm arising from the NYPD's alleged violation of his patent. The NYPD is

separate and distinct from the federal govemment, and plaintiff cannot maintain an action in the

Court of Federal Claims against a non-federal defendant. The NYPD operates under the

administration of the City of New York, which, in tum, is part of the State of New York. State

and local agencies and police departments are separate from the United States federal

government. Although plaintiff asserts that the "U.S. infringed" his patent, he does not provide

any allegations that indicate that any aspect ofthe federal govemment replicated his invention or

injured him in any other way. While he notes that the FBI is one type of federal agency, he does

not aver that the FBI used or directed the use of a device that infringed his patent. Accordingly,

plaintiff s failure to properly allege that he was harmed by the United States precludes this court

from exercising subject matter jurisdiction over his claims. See Parker v. United States, 93 Fed.

Cl. 159, 163 (2010) (holding that the "United States cannot be held liable" in the Court of

Federal Claims for the "action of a state or local govemment entity").

Further, to the extent that plaintiffdoes allege that the FBI infringed his patent, his

complaint fails to state a claim. Plaintiff relies upon 35 U.S.C. g 271, which, as described above,

does not apply to the federal govemment. Moreover, plaintiff does not provide any allegations

indicating how the FBI infringed his patent, or that the NYPD was authorized by or was

otherwise acting for the federal govemment. See Sheridan v. United States, No.2015-5073,

2015 WL 5845301, at *2 (Fed. Cir. Oct. 8, 2015) (holding that for a patent infringement claim to

survive in the Court of Federal Claims, a plaintiff must allege that the infringement occuned by

the United States or an actor who was authorized by or acting for the federal government); see

also Canier Corp. v. United States, 208 Ct. Cl. 678, 683 (1976) (holding that because the

government did not require a third party "to use a particular type of equipment," the govemment

did not "authorize[] or consente[]" to the use or manufacture of that equipment). Consequently,

plaintiff fails to state a claim that the United States inliinged his patent.r

Even if plaintiff had relied upon the proper statute, 28 U.S.C. $ 1498(a), plaintiff would

be without a remedy. Under 28 U.S.C. $ 1498(a), a patent owner has a right to recover only if

the "invention described in and covered by [the] patent . . . is used or manufactured by or for the

United States." Here, plaintifP s patent does not in any way relate to the alleged infringing

activity. The '920 patent refers to a fingerprint vehicle entry and engine starting system, which

in no way relates to the fingerprinting technology used by law enforcement agencies for criminal

suspects. In his complaint, plaintiff does not even mention a vehicle security system wher.

describing the NYPD's device and the purported infringement. And, there is no indication on

the '920 patent that it encompasses a computer fingerprinting device that is unconnected to a

vehicle security system. Ultimately, the device used by the NYPD to obtain fingerprints

' As noted earlier, plaintiff attaches a press release to his complaint indicating that the

"ClearlD2000(TM) electronic fingerprint scanning/capture system" was sold to the "Campbell

County Coroner's office in Gillette, Wyoming" by a company named 8SI2000, Inc. Compl. 15.

Although the press release describes that this "system electronically prints the standard FBI

fingerprint FD258 'Blue' and FD249 'Red'hardcopy cards that are used across the nation for

background checks and scans by law enforcement agencies, school districts, numerous

govemment agencies, contractors, and many others," plaintiff provides no allegations indicating

how the system relates to his patent. Id. Further, although the system uses standard FBI

fingerprints, there is no indication in the press release or in plaintifPs complaint that the system

was developed or is being used by the federal govemment. Rather, the press release states that

the system was sold to a local agency. Moreover, even ifplaintiff had properly alleged that this

system infringed his patent and that it is used by the federal govemment, he does not indicate

that it was first available for use after JuJy 27 ,2009, or within the statute of limitations period.

Although the press release attached to plaintiffs complaint does not provide a full date, the

court, pursuant to Federal Rule of Evidence 201, takes judicial notice ofthe publically available

press release date, which is June 14,2006. See Martin,99 Fed. Cl. at 631 ("noting that [t]he

court may, when ruling upon an RCFC I 2(bX 1 ) motion, examine relevant evidence in order to

decide any factual disputes"). Because June 14, 2006 was more than nine years before plaintiff

filed his complaint, any claim that this device violated his patent would fall outside ofthe statute

of limitations oeriod.

electronically and that covered by plaintiffs patent are two distinct systems. Thus, although

plaintiff possesses a patent for a particular device, he does not possess a patent for the device

used by the NYPD. See Gharb v. United States, I 12 Fed. CL.94,97 (2013) (holding that a

plaintiff must do more than identify products sharing one general component with the patent to

state a Section l498(a) claim). "[S]ection 1498 does not gant the Court ofFederal Claims

jurisdiction over a claim for alleged infringement ofan unissued patent." Martin, 99 Fed. Cl. at

632. Consequently, because plaintiff does not possess a patent for the device that the NYPD

uses, he fails to state a claim that his patent was infringed. See Markman v. Westview

Instruments. Inc., 517 U.S. 370,374 (1996) ("Victory in an infringement suit requires a finding

that the patent claim 'covers the alleged infringer's product or process . . . ."') (citation omitted).

The weakness ofplaintiff s case is further underscored by his November 9,2015 response to

defendant's motion, in which he argues that he is entitled to reliefbecause he lacks the funds to

make his "last Patent Maintenance Fee Payment." Pl.'sReply 1. The fact that plaintiff lacks the

necessary funds to pay the required $3,780 fee does not provide grounds for govemment

liability, much less a basis for an award ofdamages. See id. at 2; Gharb, I 12 Fed. Cl. at97 (*A

complaint must be dismissed under Rule 12(b)(6) when the facts asserted do not give rise to a

legal remedy.") (internal quotation marks omitted).

Finally, as noted above, plaintifffiled, concurrent with his original complaint, an

application to proceed in forma pauperis. Under 28 U.S.C. $ 1915(a)(1), courts ofthe United

States are permitted to waive filing fees and security under certain circumstances.a Specifically,

the statute provides:

Subject to subsection (b), any court of the United States may authorize the

commencement, prosecution or defense ofany suit, action or proceeding, civil or

criminal, or appeal therein, without prepayment offees or security therefor, by a

person who submits an affidavit that includes a statement ofall assets such prisoner

possesses that the person is unable to pay such fees or give security therefor. Such

affidavit shall state the nature of the action, defense or appeal and affiant's beliefthat

the person is entitled to redress.

28 U.S.C. $ 1915(a)(l) (2000). Plaintiffs wishing to proceed in forma pggpglig must submit an

affrdavit that lists all oftheir assets, declares that they are unable to pay the fees or give the

security,andstatesthenatureoftheactionandtheirbeliefthattheyareentitledtoredress.28

U.S.C. $ 1915(a)(1); see also Hayes v. United States, 71 Fed. Cl.366,366-67 (2006) (concluding

that 28 U.S.C. $ 1915(a)(1) applies to both prisoners and nonprisoners alike).

a While the Court of Federal Claims is not generally considered to be a "court of the

United States" within the meaning of title twenty-eight of the United States Code, the court has

jurisdiction to grant or deny applications to proceed in forma pauneris. See 28 U.S.C. $ 2503(d)

(1982) (deeming the Court ofFederal Claims to be "a court ofthe United States" for the

purposes of 28 U. S.C. g 191 5); see also Matthews, 72 Fed. Cl. a1277 -78 (recognizing that

Congress enacted the Court ofFederal Claims Technical and Procedural Improvements Act of

1992, authorizing the court to, among other things, adjudicate applications to proceed in forma

pauperis pursuant to 28 U.S.C. $ 1915).

Further, the statute sets forth that a "court shall dismiss the case at any time" if the action

or appeal to be filed in forma paUpegr "is frivolous or malicious." 28 U.S.C. g t 9 t 5(e)(2)(B)(i).

Unlike a motion to dismiss for failure to state a claim, which requires the court to assume the

truth of allegations in the complaint, section 191 5(e)(2)(B)(i) gives courts "the unusual power to

pierce the veil ofthe complaint's factual allegations and dismiss those claims whose factual

contentions are clearly baseless." Neitzke v. Williams,490 U.S. 319,327 (1989). A "finding of

factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or

wholly incredible." Denton v. Hemandez, 504 U.S. 25,33 (1992). Frivolous claims rest on

"allegations that are fanciful, fantastic, and delusional." Id. at 33 (citations and quotation marks

omitted). The court may not, however, dismiss a complaint merely because the allegations are

"improbable" or "unlikely." Id. ("An in forma pggpggg complaint may not be dismissed . . .

simply because the court finds the plaintiffs allegations unlikely.").

In this case, plaintiff submitted an affidavit in which he described his assets, declared that

he is unable to pay the fees or give the security, described the nature of the action, and stated his

beliefthat he is entitled to redress. However, the court finds plaintiff s claims to be frivolous. In

his complaint, plaintiff alleges that the NYPD's device for taking electronic fingerprints

infringed his patent for a "fingerprint entry and engine starting system." Compl. 13. Plaintiff

does not allege that the NYPD's device to take fingerprints is in any way related to access to a

vehicle, nor explains how the device relates to his specific patent. Further, the'920 patent does

not indicate that the apparatus described therein can be disconnected from a vehicle security

system. See id. at 13-14. Indeed, plaintiff provides no allegations that indicate that the NYPD's

device falls under his patent in any manner. In addition, plaintiff makes clear that he desires

money from defendant to pay his patent maintenance fee. Consequently, the court finds that

plaintiffs claims are frivolous and therefore denies his application to proceed in forma pauperis.

See Neitzke, 490 U.S. at 325 ("[A] complaint . . . is frivolous where it lacks an arguable basis

either in law or in fact."); Jackson v. United States,612Fed. App'x 997, at *2 (Fed. Cir. May 18,

2015) (affirming the trial court's dismissal ofa non-prisoner's complaint as frivolousness

because the plainitff alleged ownership of a device that prevents hurricanes); Manning v. United

States, 123 Fed. Cl. 679,683 (2015) (denying the plaintiffs application to proceed in forma

oauperis for frivolousness where the plaintiff alleged that he invented an interstellar spaceship).

In sum, the court DENIES plaintiff s application to proceed in forma pauperis and

DISMISSES plaintiff s complaint for lack ofjurisdiction. No costs. The clerk is directed to

enter judgment accordingly.

IT IS SO ORDERED.