UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK DANIEL VELASQUEZ, Plaintiff, 25-CV-3326 (LLS) -against- ORDER OF DISMISSAL CRYSTAL CURRY; MARK LUNA, Defendants. LOUIS L. STANTON, United States District Judge: Plaintiff, who is appearing pro se, brings this action alleging that Defendants violated his rights. By order dated May 1, 2025, the court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees. The Court dismisses this action for the reasons set forth below. STANDARD OF REVIEW The Court must dismiss an IFP complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim on 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); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction of the claims raised. 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 [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). But the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits – to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief. BACKGROUND Plaintiff, who is a resident of Brooklyn, New York, brings this action against Crystal
Curry and Mark Luna, both of whom he alleges are “[i]nformant[s]” or “[p]ossible [l]aw [e]nforcement” officers in Houston, Texas. (ECF 1, at 3.) He states that the events giving rise to his claims occurred at the Bellevue Men’s Shelter in Manhattan and a shelter in Brooklyn. Plaintiff alleges,1 I have been strip of my dignity, way of life, freedom, & constitutional rights, I have been deprived of my civil rights by the illegal & warrantless implant of a A.I. neutrial chip or some kind of AI micro chip implant by way of food, drink, or intercourse. This is a threat to all U.S. citizens, sovereign citizens, and the entire Republic of this Union the United States of America Republic. This dangerous technology in security is very troubling for our nation and presents a national security threat level for it is internally and undetectable[.] My phone has been broken into; pass its security protocols by defendants actions that are warrantless from Verizon, Apple, Inc., Apple Cloud & all portals in the cloud space. This secret spy program is truly cruel and unusual punishment & violations of human rights and our U.S. Constitution. (Id. at 4.) With respect to the relief he seeks, Plaintiff states, I want all warrants issue, dated, sign, & reason. Removing out the microchip that is internally. Medical screening by professional medical internal medicine specialist my eye, etc. . . An MRI for deep tissue. Revealing of both defendant identities of Crystal Curry & Mark Luna true professional careers or status in law enforcement H.P.D. or A.T.F. and any open investigation reports. (Id. at 5.)
1 Plaintiff writes using irregular capitalization. For readability, the Court uses standard capitalization when quoting from the complaint. All other spelling, grammar, and punctuation are as in the original unless noted otherwise. DISCUSSION A. Plaintiff’s claims are frivolous Under the IFP statute, a court must dismiss an action if it determines that the action is frivolous or malicious. 28 U.S.C. §1915(e)(2)(B)(i). “[A] finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible.” Denton v. Hernandez, 504 U.S. 25, 33 (1992). A complaint is “‘factually frivolous’ if the sufficiently well-pleaded facts are ‘clearly baseless’ − that is, if they are ‘fanciful,’ ‘fantastic,’ or ‘delusional.’” Gallop v. Cheney, 642 F.3d 364, 368 (2d Cir. 2011) (quoting Denton, 504 U.S. at 32-33) (finding as frivolous and baseless allegations that set forth a fantastical alternative history of the September 11, 2001 terrorist attacks); see also Neitzke v. Williams, 490 U.S. 319, 324-25
(1989) (a claim is frivolous when it “lacks an arguable basis either in law or in fact”); Livingston, 141 F.3d at 437(“[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)). Moreover, a court has “no obligation to entertain pure speculation and conjecture.” Gallop, 642 F.3d at 368. Plaintiff’s complaint is premised upon his belief that he is being subjected to ongoing surveillance conducted using an Artificial Intelligence microchip that was implanted in him “by way of food, drink, or intercourse.” (ECF 1, at 4.) However, a “[p]laintiff’s beliefs − however strongly he may hold them − are not facts.” Morren v. New York Univ., No. 20-CV-10802 (JPO) (OTW), 2022 WL 1666918, at *18 (S.D.N.Y. Apr. 29, 2022) (citation omitted), report and
recommendation adopted, 2022 WL 1665013 (S.D.N.Y. May 25, 2022). Plaintiff provides no factual basis for his assertion that he is the victim of a “secret spy program” or that Defendants, who reside in Texas, have harmed him in any way. See Lefkowitz v. John Wiley & Sons, Inc., No. 13-CV-6414, 2014 WL 2619815, at *10 (S.D.N.Y. June 2, 2014) (complaint must set forth facts showing basis for information and belief); Johnson v. Univ. of Rochester Med. Ctr., 686 F. Supp. 2d 259, 266 (W.D.N.Y. 2010) (even where necessary evidence is in “exclusive control of the defendant, . . . plaintiff must still set forth the factual basis for that belief”).
The Court finds that Plaintiff does not provide any plausible factual support for his claims and that they rise to the level of the irrational. See Livingston, 141 F.3d at 437. Plaintiff has pleaded no factual predicate in support of his assertions. Plaintiff’s allegations amount to conclusory claims and suspicions that are not plausible and must be dismissed as frivolous. See Kraft v. City of New York, 823 F. App’x 62, 64 (2d Cir. 2020) (holding that “the district court did not err in sua sponte dismissing the complaint as frivolous,” based on the plaintiff’s allegations that he had “been the subject of 24-hour, multi-jurisdictional surveillance by federal ‘fusion centers’ and the New York State Intelligence Center, which put a ‘digital marker’ on him in order to collect his personal data and harass him”); Khalil v. United States, No. 17-CV-2652, 2018 WL 443343, at *4 (E.D.N.Y. Jan.
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK DANIEL VELASQUEZ, Plaintiff, 25-CV-3326 (LLS) -against- ORDER OF DISMISSAL CRYSTAL CURRY; MARK LUNA, Defendants. LOUIS L. STANTON, United States District Judge: Plaintiff, who is appearing pro se, brings this action alleging that Defendants violated his rights. By order dated May 1, 2025, the court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees. The Court dismisses this action for the reasons set forth below. STANDARD OF REVIEW The Court must dismiss an IFP complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim on 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); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction of the claims raised. 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 [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). But the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits – to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief. BACKGROUND Plaintiff, who is a resident of Brooklyn, New York, brings this action against Crystal
Curry and Mark Luna, both of whom he alleges are “[i]nformant[s]” or “[p]ossible [l]aw [e]nforcement” officers in Houston, Texas. (ECF 1, at 3.) He states that the events giving rise to his claims occurred at the Bellevue Men’s Shelter in Manhattan and a shelter in Brooklyn. Plaintiff alleges,1 I have been strip of my dignity, way of life, freedom, & constitutional rights, I have been deprived of my civil rights by the illegal & warrantless implant of a A.I. neutrial chip or some kind of AI micro chip implant by way of food, drink, or intercourse. This is a threat to all U.S. citizens, sovereign citizens, and the entire Republic of this Union the United States of America Republic. This dangerous technology in security is very troubling for our nation and presents a national security threat level for it is internally and undetectable[.] My phone has been broken into; pass its security protocols by defendants actions that are warrantless from Verizon, Apple, Inc., Apple Cloud & all portals in the cloud space. This secret spy program is truly cruel and unusual punishment & violations of human rights and our U.S. Constitution. (Id. at 4.) With respect to the relief he seeks, Plaintiff states, I want all warrants issue, dated, sign, & reason. Removing out the microchip that is internally. Medical screening by professional medical internal medicine specialist my eye, etc. . . An MRI for deep tissue. Revealing of both defendant identities of Crystal Curry & Mark Luna true professional careers or status in law enforcement H.P.D. or A.T.F. and any open investigation reports. (Id. at 5.)
1 Plaintiff writes using irregular capitalization. For readability, the Court uses standard capitalization when quoting from the complaint. All other spelling, grammar, and punctuation are as in the original unless noted otherwise. DISCUSSION A. Plaintiff’s claims are frivolous Under the IFP statute, a court must dismiss an action if it determines that the action is frivolous or malicious. 28 U.S.C. §1915(e)(2)(B)(i). “[A] finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible.” Denton v. Hernandez, 504 U.S. 25, 33 (1992). A complaint is “‘factually frivolous’ if the sufficiently well-pleaded facts are ‘clearly baseless’ − that is, if they are ‘fanciful,’ ‘fantastic,’ or ‘delusional.’” Gallop v. Cheney, 642 F.3d 364, 368 (2d Cir. 2011) (quoting Denton, 504 U.S. at 32-33) (finding as frivolous and baseless allegations that set forth a fantastical alternative history of the September 11, 2001 terrorist attacks); see also Neitzke v. Williams, 490 U.S. 319, 324-25
(1989) (a claim is frivolous when it “lacks an arguable basis either in law or in fact”); Livingston, 141 F.3d at 437(“[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)). Moreover, a court has “no obligation to entertain pure speculation and conjecture.” Gallop, 642 F.3d at 368. Plaintiff’s complaint is premised upon his belief that he is being subjected to ongoing surveillance conducted using an Artificial Intelligence microchip that was implanted in him “by way of food, drink, or intercourse.” (ECF 1, at 4.) However, a “[p]laintiff’s beliefs − however strongly he may hold them − are not facts.” Morren v. New York Univ., No. 20-CV-10802 (JPO) (OTW), 2022 WL 1666918, at *18 (S.D.N.Y. Apr. 29, 2022) (citation omitted), report and
recommendation adopted, 2022 WL 1665013 (S.D.N.Y. May 25, 2022). Plaintiff provides no factual basis for his assertion that he is the victim of a “secret spy program” or that Defendants, who reside in Texas, have harmed him in any way. See Lefkowitz v. John Wiley & Sons, Inc., No. 13-CV-6414, 2014 WL 2619815, at *10 (S.D.N.Y. June 2, 2014) (complaint must set forth facts showing basis for information and belief); Johnson v. Univ. of Rochester Med. Ctr., 686 F. Supp. 2d 259, 266 (W.D.N.Y. 2010) (even where necessary evidence is in “exclusive control of the defendant, . . . plaintiff must still set forth the factual basis for that belief”).
The Court finds that Plaintiff does not provide any plausible factual support for his claims and that they rise to the level of the irrational. See Livingston, 141 F.3d at 437. Plaintiff has pleaded no factual predicate in support of his assertions. Plaintiff’s allegations amount to conclusory claims and suspicions that are not plausible and must be dismissed as frivolous. See Kraft v. City of New York, 823 F. App’x 62, 64 (2d Cir. 2020) (holding that “the district court did not err in sua sponte dismissing the complaint as frivolous,” based on the plaintiff’s allegations that he had “been the subject of 24-hour, multi-jurisdictional surveillance by federal ‘fusion centers’ and the New York State Intelligence Center, which put a ‘digital marker’ on him in order to collect his personal data and harass him”); Khalil v. United States, No. 17-CV-2652, 2018 WL 443343, at *4 (E.D.N.Y. Jan. 12, 2018) (dismissing complaint where “[p]laintiff
allege[d] a broad conspiracy involving surveillance of and interference with his life by the United States and various government actors” because his allegations were “irrational and wholly incredible”). B. Leave to amend is denied 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). Plaintiff’s complaint does not suggest that she is in possession of facts that would cure the identified deficiencies. See Gallop, 642 F.3d at 369 (district court did not err in dismissing claim with prejudice in absence of any indication plaintiff could or would provide additional allegations leading to different result); Fischman v. Mitsubishi Chem. Holdings Am., Inc., No. 18-CV-8188, 2019 WL 3034866, at *7 (S.D.N.Y. July 11, 2019) (declining to grant leave to amend as to certain claims in the absence of any suggestion that additional facts could remedy defects in the plaintiff's pleading). Because the defects in Plaintiff's complaint cannot be cured with an amendment, the Court declines to grant Plaintiff leave to amend and dismisses the action as frivolous. See 28 U.S.C. § 1915(e)(2)(B)(Q). CONCLUSION The Court dismisses this action as frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i). The Court directs the Clerk of Court to enter judgment in this action. SO ORDERED. Dated: June 25, 2025 New York, New York Louis L. Stanton U.S.D.J.