Opinion
5:24-cv-0438 (GTS/TWD)
05-06-2024
DENYALL BALL, Plaintiff, v. CRIMINAL INVESTIGATIONS DEPARTMENT, et al, Defendants.
OF COUNSEL: APPEARANCES: DENYALL BALL Plaintiff, pro se
OF COUNSEL:
APPEARANCES:
DENYALL BALL
Plaintiff, pro se
REPORT-RECOMMENDATION AND ORDER
THERESE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
The Clerk has sent to the Court for review a complaint submitted by pro se plaintiff Denyall Ball (“Plaintiff”), as well as a motion to proceed in forma pauperis (“IFP”). Dkt. No. 1; Dkt. No. 2. For the reasons stated below, the Court recommends Plaintiff's complaint be dismissed.
II. IFP APPLICATION
Plaintiff has not paid the filing fee for this action and seeks leave to proceed IFP. Dkt. No. 2. Upon review, Plaintiff's IFP application demonstrates economic need. See id. Therefore, she is granted permission to proceed IFP.
III. COMPLAINT
Plaintiff's complaint, which utilized the Court's form complaint for civil rights actions, lists the “criminal investigations department” and “Watertown Police department” as defendants. Dkt. No. 1 at 2. Plaintiff's claims are brought pursuant to 42 U.S.C. § 1983 for violations of “Civil Rights, Human Rights, Constitutional Rights[.]” Id. at 3. Plaintiff contends “[a]s a victim of remote neural monitoring, my rights are being violated.” Id. at 4.
Citations to Plaintiff's submissions will refer to the pagination generated by CM/ECF, the Court's electronic filing system. Unless otherwise indicated, excerpts from the record are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar have not been corrected.
In support of her claims, Plaintiff sets forth the following facts, which have occurred on an ongoing basis in Watertown:
The first time I remember my mind being sent a photograph or video image was in 2018. Then in 2020 during a neurology scan They sent some sort of imaging into my brain. They do this often. The scan was done in March of 2020. They have been Periodically Seizing my brain using the technology outlined in the Assembly Bill A 8195. They have brainwashed me. They work on individual Parts of by brain working on a “program.” They refer to it as the “System.” It may have caused severe damage to my body and brain as I am not the same.Id. Plaintiff further avers, as a result of the alleged events,
I have sustained severe injuries in the past. Their technology Had almost crippled me. They are trying to make it seem as if I have multiple personality disorder. The A.I. has programmed different things in my mind that are absolutely awful. They have made changes in my emotions, my physiology, my body. They have tried to hypnotize me. They have done this thing where they seem to broadcast my “voice print” to devices and people. They have sexually abused me so badly, they have physically abused me, mentally. They seem to have taken things from my home. They have a program that can change my handwriting slightly. They have harassed me, every morning my brain seems to be different as they filled the parts with lies and terrible images. They treaten to dump
it into my consciousness and then they threaten I will be killed or worse. I want off the “system.”Id. at 5. With respect to relief, Plaintiff states:
I am seeking money damages. In the amount of 150,000.00 for the extreme brutal force, almost lethal force, extreme sexual abuse, cruel and unusual punishment, physical abuse, mental abuse and suffering the extreme interrogation techniques the confusion, loss of use of my brain, the invasive Brain wave patterns, the sent videofeeds, texts and disgusting false accusations they constantly have done the way they have ruined my life, sending me a psycotropic medication in a brutal way against my will, all the breakins and items they have taken from my home in the past in hopes to frame me as what seems to be some kind of terrible criminal, emotional damages as well I also want the court to help me get off their “system.”Id. The complaint is dated March 15, 2024. Id. at 6.
Plaintiff subsequently filed an addendum to the complaint on April 11, 2024. See Dkt. No. 4. She seeks to “include federal officials as well. I believe there may be federal agents who are involved with violating my rights.” Id. at 1. Plaintiff adds officials violated her rights under “The NYS Artificial Intelligence Bill of Rights. These include A8129, S8209, A8195, A8110 laws Affected by these Bills are Add Art IV §§ 401-409, St Tech L, Amd St Tech L, generally; and § 2.10, CPL Add § 60.80, CPL; add § 4551, CPLR.” Id. Plaintiff further alleges:
Piecemeal complaints are not permitted. Because of Plaintiff's pro se status, the Court will review the complaint and “addendum” together for sufficiency pursuant to 28 USC Section 1915.
Since filing the lawsuit they have extensively brainwashed me. They have caused damage to my brain, cognitive function, nervous system and have started to give me “disabilities.” Creating pain in my body. They use A.I. to manipulate me in every way. Claiming they are trying to “frame” me. They have been putting things in my mind that never existed before, they have implemented “programs” that hypnotize me they isolate the left top of my brain and fill it with very odd phrases. They entirely prevented my brain from responding normally. A corrections officer by the name of Janelle T. told me about this. She knew this was happening to me. A police Officer by the name of Officer Macintyre also knows about this as
well. They are continuing to threaten me and hurt me. So I would like to add to the monetary amount I am seeking for damages. I would like to add 850,000 to the damages totaling an amount of 1,000,000. The amount of pain and suffering I have gone through has been awful and I feel like human life is priceless.Id. at 1-2.
Plaintiff also submitted a civil cover sheet. See Dkt. No. 6. Plaintiff did not list any defendants, but listed “Jefferson” as the defendant's county of residence. Id. at 1. Plaintiff described the cause of action as “violation of due process of law, violation of state and federal A.I. Bill of Rights, Excessive force, Illegal Search and Seizures” pursuant to the following authorities: “federal A.I. Bill of Rights, Executive order 13960, NYS Bill 1042A, A8195, A8129, A8110.” Id.
IV. STANDARD OF REVIEW
Section 1915 of Title 28 requires a district court to dismiss an IFP complaint if the action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)(i)-(iii); Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint, or portion thereof, when the Court lacks subject matter jurisdiction. See Fed.R.Civ.P. 12(h)(3).
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 arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation marks and citation omitted). A claim is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989), abrogated on other grounds Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); see also Denton v. Hernandez, 504 U.S. 25, 33 (1992) (holding “a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible”); Livingston, 141 F.3d at 437.
To survive dismissal for failure to state a claim, a complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2). This short and plain statement of the claim must be “plausible on its face.” Twombly, 550 U.S. at 570. “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 (2009). The statement of the claim must do more than present “an unadorned, the-defendant-harmed-me accusation.” Id. It must “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (internal quotation marks and citations omitted); see also Fed.R.Civ.P. 8(a)(2).
In determining whether a complaint states a claim upon which relief may be granted, “the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citations omitted). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
Moreover, a court should not dismiss a pro se complaint “without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (citation and internal quotation marks omitted). However, an opportunity to amend is not required where “the problem with [the plaintiff's] causes of action is substantive” such that “better pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
V. ANALYSIS
First, “[a] police department cannot sue or be sued because it does not exist separate and apart from the municipality and does not have its own legal identity.” Baker v. Willett, 42 F.Supp.2d 192, 198 (N.D.N.Y. 1999) (dismissing claims against county sheriff's department) (citations omitted); see also Davis v. Lynbrook Police Dep't, 224 F.Supp.2d 463, 477 (E.D.N.Y. 2002) (“Under New York law, departments that are merely administrative arms of a municipality do not have a legal identity separate and apart from the municipality and, therefore, cannot sue or be sued.”) (citations omitted); Jenkins v. Liadka, No. 5:10-CV-1223 (GTS/DEP), 2012 WL 4052286, at *9 (N.D.N.Y. Sept. 13, 2012) (“Because the Syracuse Police Department is merely an administrative arm of the City of Syracuse, it is not a proper defendant in this case.”).Because the Watertown Police Department and the Criminal Investigations Division or Department thereof cannot be sued, Plaintiff's complaint should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). See, e.g., La Grande v. Town of Bethlehem Police Dep't, No. 1:08-CV-0738 (LEK/DRH), 2009 WL 2868231, at *2 (N.D.N.Y. Sept. 1, 2009) (“Since the Bethlehem Police Department cannot be sued pursuant to 42 U.S.C. § 1983, Plaintiff's Complaint is dismissed as against the Town of Bethlehem Police Department.”); Hester v. City of Oneida, No. 6:23-CV-1171 (AMN/TWD), 2023 WL 7543607, at *4 (N.D.N.Y. Nov. 14, 2023), report and recommendation adopted, 2024 WL 78485 (N.D.N.Y. Jan. 8, 2024).
A municipality itself may be named as a defendant in certain circumstances. See generally, Monell v. Dep't of Social Services, 436 U.S. 658 (1978). “[A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom . . . inflicts the injury that the government as an entity is responsible under § 1983.” Id. at 694; see also, e.g., LeTray v. City of Watertown, No. 5:20-CV-1194 (FJS/TWD), 2024 WL 1107903, at *8 (N.D.N.Y. Feb. 22, 2024) (“a municipality is liable under § 1983 if its policy causes a constitutional injury.”) (citation omitted). Here, however, nothing in Plaintiff's complaint suggests action taken pursuant to a municipal policy, custom, or practice, therefore, a claim of municipal liability under Monell would not be appropriate.
In any event, Plaintiff's allegations against the named Defendants and the unnamed “federal officials” referenced in her addendum, see Dkt. No. 4 at 1, are wholly frivolous. “An action is ‘frivolous' when . . . the factual contentions are clearly baseless, such as when allegations are the product of delusion or fantasy ....” Livingston, 141 F.3d at 437 (citing Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990)) (additional quotations and citations omitted). Here, Plaintiff's claims of having been “brainwashed” and “manipulated” by “a program” called “the ‘system'” are completely unrealistic. See Mahmood v. U.S. Dep't of Homeland Sec., No. 1:21-CV-0782 (MAD/DJS), 2021 WL 3129255, at *2-3 (N.D.N.Y. July 23, 2021) (recommending the plaintiff's complaint, which alleged the “Defendant has been targeting him with radiation and electric currents, and has been brainwashing him and using mind control techniques on him” be dismissed with prejudice), report and recommendation adopted, 2021 WL 5048451 (N.D.N.Y. Nov. 1, 2021); Brodzki v. Shannon, No. 5:11-CV-1117 (GTS/ATB), 2011 WL 7109553, at *3 (N.D.N.Y. Sept. 23, 2011) (recommending dismissal of plaintiff's complaint in its entirety, noting the “factual allegations involving torture and mind control . . . are completely fanciful, and appear to border on the delusional”), report and recommendation adopted, 2012 WL 254090 (N.D.N.Y. Jan. 27, 2012); Sun Jung v. Bloomberg, No. 1:10-CV- 0118, 2010 WL 276641, at *1 (E.D.N.Y. Jan. 19, 2010) (dismissing as factually frivolous the plaintiff's complaint which alleged he was “a target of electronic harassment, mind control, directed energy weapons, organized stalking, electronic torture and human experimentation”). Therefore, dismissal of Plaintiff's complaint as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i) is also warranted. Livingston, 141 F.3d at 437.
See also Mahmood v. United States Gov't, No. 1:20-CV-0207 (MAD/DJS), 2020 WL 3965125, at *2-3 (N.D.N.Y. Mar. 17, 2020) (recommending dismissal with prejudice of the plaintiff's complaint which alleged “a pattern of unethical, unlawful, and inhumane Electronic Surveillance, Mind-Control, and Cyber-Stalking activities” by unnamed officials of the United States Government” noting “Plaintiff's claims against the United States Government are subject to dismissal on the grounds of sovereign immunity.”) (internal quotations omitted), report and recommendation adopted, 2020 WL 1808206 (N.D.N.Y. Apr. 9, 2020).
Finally, while the court should generally afford a pro se plaintiff an opportunity to amend her pleading following its sua sponte dismissal, leave to re-plead may be denied where amendment would be futile. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993). Here, the deficiencies with Plaintiff's complaint would not be cured by amended the pleading. Accordingly, the Court recommends the complaint be dismissed with prejudice. See, e.g., Eldin v. Barber, No. 6:15-CV-0440 (MAD/ATB), 2015 WL 1780638, at *6-7 (N.D.N.Y. Apr. 20, 2015) (recommending dismissal of the plaintiff's “rambling and disjointed” complaint regarding his “concern[] that he is the victim of microwaves and psychotronic weapons” with prejudice, as plaintiff's contentions were “clearly baseless” such that no attempt to amend could cure the problems with the complaint) (citing Neitzke, 490 U.S. at 327), report and recommendation adopted, 2015 WL 2453485 (N.D.N.Y. May 22, 2015); Hester, 2023 WL 7543607, at *4 (recommending dismissal of the complaint as to police entities with prejudice).
VI. CONCLUSION
ACCORDINGLY, it is hereby
ORDERED that Plaintiff's motion to proceed IFP (Dkt. No. 2) is GRANTED, and it is
Although Plaintiff's application to proceed IFP has been granted, Plaintiff will still be required to pay fees incurred in the future regarding this action, including, but not limited to, copying and/or witness fees.
RECOMMENDED that Plaintiff's complaint (Dkt. No. 1) be DISMISSED WITH PREJUDICE; and it is further
ORDERED that the Clerk provide to Plaintiff a copy of this Report-Recommendation and Order, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) 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 REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW . Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72.
If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Report-Recommendation and Order was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed.R.Civ.P. 6(a)(1)(C).
IT IS SO ORDERED.