Wallace v. FBI

Filing 5

MEMORANDUM & ORDER granting 2 Motion for Leave to Proceed in forma pauperis; For the reasons set forth above, Plaintiff's application to proceed in forma pauperis is GRANTED and this case is sua sponte DISMISSED WITHOUT PREJUDICE for failure to state a plausible claim. The Court certifies pursuant to 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 any appeal. The Clerk of the Court is directed to mail a copy of this Memorandum and Order to the pro se Plaintiff and to mark this case CLOSED. So Ordered by Judge Joanna Seybert on 5/7/2014. C/M (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
KELLY WALLACE,
Plaintiff,

MEMORANDUM & ORDER
14-CV-2264(JS)(AKT)

-againstFBI, U.S. Dept. of Justice,
Defendant.
----------------------------------X
KELLY WALLACE,
Plaintiff,
-against-

14-CV-2512(JS)(AKT)

U.S. GOVERNMENT, CIA, NSA, DEPT.
OF DEFENSE, DEPT. OF HOMELAND
SECURITY, DEPT. OF OFFICE OF
SCIENCE & TECHNOLOGY, FBI, and
UNKNOWN MILITARY VETERANS AND
MILITARY PERSONNELL [SIC]
(of the U.S. government),
Defendants.
----------------------------------X
APPEARANCES:
For Plaintiff:
Kelly Wallace, pro se
51 Penn Street
Lake Grove, NY 11755
For Defendants:

No appearances.

SEYBERT, District Judge:
On

April

4,

2014,

pro

se

plaintiff

Kelly

Wallace

(“Plaintiff”) filed an in forma pauperis Complaint (the “First
Complaint”) against the FBI, U.S. Dept. of Justice (the “FBI”),
alleging, inter alia, that the FBI has violated her civil rights by
conducting illegal surveillance and stalking her.

On April 16,

2014, Plaintiff filed a second in forma pauperis Complaint (the

“Second Complaint”), also against the FBI, and several additional
Federal defendants, namely the “U.S. Government, [the] CIA, [the]
NSA, [the] Dept. of Defense, [the] Dept. of Homeland Security,
Dept. of Office of Science & Technology, and unknown military
veterans and military personnell [sic] (of the U.S. government).”
(Second Compl. at 1-2.)1 Like the First Complaint, the Second
Complaint

alleges,

inter

alia,

that

these

various

federal

governmental agencies have conducted unlawful surveillance and
harassment of the Plaintiff. (Second Compl. at 2-4.)
Each Complaint was accompanied by an application to
proceed in forma pauperis. Upon review of Plaintiff’s declarations
in support of her applications to proceed in forma pauperis, the
Court finds that Plaintiff’s financial status qualifies her to
commence these actions without prepayment of the Court’s filing
fees.

See 28 U.S.C. § 1915(a)(1).

Accordingly, the applications

to proceed in forma pauperis are GRANTED. However, for the reasons
that follow, the First Complaint and Second Complaint fail to
allege a plausible claim and are sua sponte DISMISSED pursuant to
28 U.S.C. § 1915(e)(2)(B)(ii).

1

On April 16, 2014, Plaintiff also filed a letter requesting “a
speedy trial” due to the nature of her allegations. See Wallace
Letter, dated April 16, 2014 [No. 14-CV-2264, Docket Entry
No. 4]. Given the dismissal of the Plaintiff’s Complaints as
set forth herein, her application is moot.
2

BACKGROUND
I.

The First Complaint
Submitted on the Court’s general complaint form, the

First Complaint alleges that the FBI has been conducting unlawful
surveillance of Plaintiff “24/7” since December 2012.
Compl. at ¶ III.A-C.)

(First

According to the First Complaint, hidden

cameras were installed in Plaintiff’s home (which were detected by
a “camera dector [sic]”) and her telephone calls were intercepted.
(First Compl. at ¶ III.C.) Plaintiff also claims that her internet
use, e-mails, and texts have been hacked and that she has been
“gangstalk[ed] [by] many vehicles of men unknown, with police
stickers on cars, military stickers as well.”
¶ III.C.)

(First Compl. at

According to Plaintiff, “[a]n EMF device was being used

on me from an apt. next to me, while 2 FBI agents were in the bldg.
next to me for about 1-2 weeks.”

(First Compl. at ¶ III.C.)

Plaintiff further alleges that
Someone trespassed into my home, [and] caused
injury (by drugging food/beverage) to my (R)
ear [and] left a permanent ‘clicking’, (L)
shoulder area has been permanent [sic]
muscle/neck area injured and further used as a
trigger point of EMF device transmission to
heat my head, body, those areas to pain, and
‘private’ parts. I AM BEING TARGETED ON SOME
BLACKLISTING BY FBI, GOV., POLICE. I NEED
INFO. ON THE FOIA, IF THEY WENT TO A FISA
COURT?
(First Compl. at ¶ III.C.)

In the section of the complaint form

that calls for a description of any claimed injuries, Plaintiff
3

alleges that she experiences “sexual touching by device 24/7" as
well as

trauma to her right ear, left shoulder, both hands, and

her left leg.

(First Compl. at ¶ IV.)

Plaintiff also claims that

her “eyes have ‘unknown’ ‘objects’ that ‘light up’ looking like
clear ‘contact lenses’ glowing, vision changes seem permanent, [and
were]

placed

in

[her]

food/beverage. . . .”

eyes

during

a

night

of

drugging

my

(First Compl. at ¶ IV.)

For relief, Plaintiff seeks to recover a damages award in
the amount of $5 million in addition to the entry of an order of
protection against the FBI to stop the stalking, surveillance and
use of the “EMF Device.”
II.

(First Compl. at ¶ V.)

The Second Complaint
Plaintiff’s Second Complaint is also submitted on the

Court’s general complaint form.

Like the First Complaint, the

Second Complaint alleges, inter alia, that the Plaintiff is under
surveillance

by

the

Federal

government.

More

specifically,

Plaintiff claims that she has been “placed illegally into a Human
Military robotic experiment/program DARPA, 24/7 monitoring, remote
neural monitoring torture.” (Second Compl. at ¶ III.)

The Second

Complaint alleges that the surveillance began in 2007 at various
locations in New York and Pennsylvania and that Plaintiff is
[b]eing
used
as
an
unethical
human
experimentation that started one phase (as I
can indicate) [in] 2007, 2008, 2010, and phase
2 began 2013 with mind control technology known as voice to skull/synthetic telepathy.
This technology is being used to torture me,
4

injure, intimidate with coercion, thought
coercion to change who I am as a human being,
violating my human amendment 3 rights of
equality
(discrimination
of
disability)
privacy, human amendm. 4 of freedoms of
expression, no coercion of religion, right to
peaceably assemble, right to freedom of
movement,
association,
physical
pain
&
suffering mental anguish with loss of social
interactions, isolation, confinement, loss of
enjoyment of life, injury to reputation with
rumors, false phrases words spoken 24/7,
deceptive trade practice of malice toward me
with no answers directly from these federal
agencies of the cruel and unusual punishment
methods being done to me this past year, 2013present April 16, 2014 and future damages, &
future consistent confinement due to stalking,
harrassment
[sic]
methods
used.
All
communications are being listened to, I am
being monitored to the brain 24/7. There was
a[n] incident in Feb. 2013 where I met 2 FBI
agents at my complex in a bldg. near my apt.
Stalking began, surveillance of phones, eaves
dropping measures, hidden camera detection by
detector, contacts were made about all of
this.
(Second Compl. at ¶ III.C.)
suffered

“trauma”

violations abuse.”

As a result, Plaintiff claims to have

including

“emotional

(Second Compl. at ¶ IV.)

abuse

[and]

sexual

Plaintiff describes

that she has skin lesions and “scars of different shapes from the
EMF device” and hears “amplified severe sounds [that] [] make me
flinch, jump, jolt through [my] entire central nervous system from
head to toe.”

(Second Compl. at ¶ IV.)

Plaintiff also claims to

suffer, among other things, “sleep deprivation, sexually induced
nightmares, images, sexual touching, sexual emotional trauma,
sexually induced mechanical orgasm done to brain & vaginal area
5

connected to cause left side of body weakness after a few of these
episodes of the electrical frequency signals directed at my brain.”
(Second Compl. at ¶ IV.)
For relief, Plaintiff seeks to recover a damages award of
$5 million as well as an order directing the Government to “STOP
ALL MIND CTRL. Immediately” and “shut down the device that has been
using my eyes, and the voice to skull technology of transmitted
voices 24/7.” (Second Compl. at ¶ V.)
DISCUSSION
I.

Standard of Review
The Court is required to read a pro se plaintiff’s

Complaint

liberally

and

arguments it suggests.

construe

it

to

raise

the

strongest

See, e.g., McEachin v. McGuinnis, 357 F.3d

197, 200 (2d Cir. 2004).

Irrespective of whether they are drafted

pro se, all complaints must plead sufficient facts to “state a
claim to relief that is plausible on its face.”

Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d
929 (2007).

“A claim has facial plausibility when the plaintiff

pleads factual 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, 129 S. Ct. 1937, 173 L. Ed.
2d 868 (2009) (citations omitted).

The plausibility standard

requires “more than a sheer possibility that a defendant has acted
unlawfully.” Id. at 678; accord Wilson v. Merrill Lynch & Co., 671
6

F.3d

120,

128

(2d

Cir.

2011).

While

“‘detailed

factual

allegations’” are not required, “[a] pleading that offers ‘labels
and conclusions’ or ‘a formulaic recitation of the elements of a
cause of action will not do.’”

Iqbal, 556 U.S. at

678 (quoting

Twombly, 550 U.S. at 555).
Further, a district court has the inherent power to
dismiss a case, sua sponte, if it determines that the action is
frivolous.

Mecca v. U.S. Government, 232 F. App’x 66, 66-67 (2d

Cir. 2007) (affirming district court dismissal of complaint that
was “replete with fantastic and delusional scenarios.”) (internal
quotation marks and citation omitted); Shoemaker v. U.S. Dep’t of
Justice, 164 F.3d 619 (2d Cir. 1998).

“An action is frivolous if

it lacks an arguable basis in law or fact--i.e., where it is ‘based
on an indisputably meritless legal theory’ or presents ‘factual
contentions [which] are clearly baseless.’”

Scanlon v. Vermont,

423 F. App’x 78, 79 (2d Cir. 2011) (summary order) (quoting Neitzke
v. Williams, 490 U.S. 319, 327, 109 S. Ct. 1827, 1832, 104 L. Ed.
2d 338 (1989) (alteration in original)); see

also

Denton v.

Hernandez, 504 U.S. 25, 33, 112 S. Ct. 1728, 118 L. Ed. 2d 340
(1992) (“[A] finding of factual frivolousness is appropriate when
the facts alleged rise to the level of the irrational or the wholly
incredible, whether or not there are judicially noticeable facts
available to contradict them.”).
Here, as is readily apparent, the Complaints are nothing
7

more than Plaintiff’s delusions and do not set forth any cognizable
claim.

Samuel v. Bloomberg, No. 13-CV-6027, 2013 WL 5887545, *1

(E.D.N.Y. Oct. 31, 2013) (dismissing frivolous pro se complaint
explaining “[p]laintiff’s allegations--even under the very liberal
reading we accord pro se pleadings (and even if plaintiff himself
believes them to be true)--can only be described as delusional and
fantastic.”).

Accordingly, Plaintiff’s frivolous Complaints2 are

sua sponte DISMISSED WITHOUT PREJUDICE.
II.

Leave to Amend
Rule 15(a)(2) of the Federal Rules of Civil Procedure

provides that a party shall be given leave to amend “when justice
so requires.”

FED. R. CIV. P. 15(a)(2).

“[W]hen addressing a pro

se complaint, a district ‘court should not dismiss without granting
leave to amend at least once when a liberal reading of the
complaint
stated.’”

gives

any

indication

that

a

valid

claim

might

be

Thompson v. Carter, 284 F.3d 411, 416 (2d Cir. 2002)

(quoting Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991)).
Nevertheless,

“[l]eave

to

amend,

though

liberally

granted, may properly be denied for: ‘undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to cure
2

Plaintiff is cautioned that Federal Rule of Civil Procedure 11
applies to pro se litigants, Ginther v. Provident Life & Cas.
Ins. Co., 350 F. App’x 494, 496 (2d Cir. 2009) (upholding a
district court’s imposition of sanctions against a pro se
litigant), and that should she file another frivolous Complaint,
it is within the Court’s realm to consider sanctions. See FED.
R. CIV. P. 11.
8

deficiencies by amendments previously allowed, undue prejudice to
the opposing party by virtue of allowance of the amendment,
futility of amendment, etc.’”

Ruotolo v. City of New York, 514

F.3d 184, 191 (2d Cir. 2008) (quoting Foman v. Davis, 371 U.S. 178,
182, 83 S. Ct. 227, 230, 9 L. Ed. 2d 222 (1962)).

“If the

underlying facts or circumstances relied upon by a plaintiff may be
a proper subject of relief, he ought to be afforded an opportunity
to test his claim on the merits.”

Foman, 371 U.S. at 182.

However, if amendment would be futile, i.e., if it could not
withstand a motion to dismiss pursuant to Rule 12(b)(6), leave to
amend may be denied.

See Lucente v. Int’l Bus. Mach. Corp., 310

F.3d 243, 258 (2d Cir. 2002).
Construing the Plaintiff’s Complaints liberally, and
interpreting them as raising the strongest arguments they suggest,
Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994), the Court finds
that Plaintiff’s allegations rise to the level of the irrational.
Accordingly, the Court declines to afford Plaintiff an opportunity
to amend her Complaints given that the deficiencies therein are not
such that could be cured by amendment.
CONCLUSION
For the reasons set forth above, Plaintiff’s applications
to proceed in forma pauperis are GRANTED and both cases are sua
sponte DISMISSED WITHOUT PREJUDICE for failure to state a plausible
claim. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that
9

any appeal from this Order would not be taken in good faith and
therefore in forma pauperis status is DENIED for the purpose of any
appeal. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S.
Ct. 917, 8 L. Ed. 2d 21 (1962).
The Clerk of the Court is directed to mail a copy of this
Memorandum and Order to the pro se Plaintiff and to mark these
cases CLOSED.
SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated: May
7 , 2014
Central Islip, New York

10