19-4193
`Kraft v. City of New York
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`UNITED STATES COURT OF APPEALS
`FOR THE SECOND CIRCUIT
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`SUMMARY ORDER
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`RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
`ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
`APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
`IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
`ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
`ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
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`At a stated term of the United States Court of Appeals for the Second Circuit,
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`held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
`New York, on the 1st day of October, two thousand twenty.
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`PRESENT:
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`DENNIS JACOBS,
`PIERRE N. LEVAL,
`JOSEPH F. BIANCO,
`Circuit Judges.
`_____________________________________
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`Warren R. Kraft,
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`v.
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`Plaintiff-Appellant,
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`19-4193
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`The City of New York, (“CITY”) individually and
`in their official capacity, John Does, police officers
`and non-uniformed and under-cover police officers
`of the New York City Police Department, Richard Roes,
`Supervisory police officers of the City of New York,
`the identity and number of whom is presently unknown,
`United States of America, and individually and in their
`official capacity, Unknown Federal Law Enforcement
`Officers or Agents or Employees, and Unknown Officials
`and Employees of the Federal Bureau of Investigation, (“FBI”),
`National Security Agency (“NSA”), State of New York,
`William Woes, Unknown New York State Law Enforcement
`Officers or Agents or Employees, Zeke Zoes, Unknown
`Officials and Officer Policy Makers and Supervisory
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`Employees Including the Director, Employees of the
`New York State Intelligence Center (“NYSIC Fusion
`Center”) and New York State Police, Tom Toes,
`Unknown New York State Homeland Security and
`Emergency Service and New York State Police,
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`Defendants-Appellees.*
`_____________________________________
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`FOR PLAINTIFF-APPELLANT:
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`FOR DEFENDANTS-APPELLEES:
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`Warren R. Kraft, pro se
`Red Bank, NJ.
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`No appearance.
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`Appeal from a judgment of the United States District Court for the Southern District of
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`New York (Furman, J.).
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`UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
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`DECREED that the judgment of the district court is AFFIRMED.
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`Warren R. Kraft, pro se, sued the City of New York, unknown New York City police
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`officers, federal law enforcement agents, New York State law enforcement officers, the United
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`States, the director and unknown employees of the New York State Intelligence Center, and
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`unknown employees of the New York State Division of Homeland Security and Emergency
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`Services, under 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Federal Bureau of
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`Narcotics, 403 U.S. 388 (1971). In his 84-page complaint, Kraft alleged various constitutional
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`violations, including that an undercover confidential informant, at the direction of an unknown law
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`enforcement agency, used excessive force and assaulted him in 2018; that law enforcement officers
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`conspired to conceal that excessive use of force; and that he has been the subject of covert,
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`unconstitutional surveillance by unknown
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`law enforcement agencies—including
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`illegal
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`* The Clerk of Court is respectfully directed to amend the official caption in this case to conform to the
`caption above.
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`2
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`wiretapping and 24-hour, nationwide surveillance—since 2014, and that those agencies put a
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`digital marker on him to collect his personal data and harass him. After the assault in 2018, Kraft
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`allegedly sought help from New York City police officers, but when the officers detained the
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`“confidential informant,” Kraft informed the officers he would not press charges because,
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`according to Kraft, confidential informants are immune from criminal prosecution. The district
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`court sua sponte dismissed the complaint as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i),
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`reasoning that, even under the liberal reading afforded to pro se pleadings, the complaint’s claims
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`were frivolous and this defect could not be cured by amendment. Kraft appealed. We assume
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`the parties’ familiarity with the underlying facts, procedural history, and issues on appeal.
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`This Court reviews de novo a district court’s sua sponte dismissal of a complaint pursuant
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`to 28 U.S.C. § 1915(e)(2). Zaleski v. Burns, 606 F.3d 51, 52 (2d Cir. 2010) (per curiam). Under
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`that statute, the district court must dismiss a complaint filed in forma pauperis if it determines that
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`the action or appeal “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be
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`granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.”
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`28 U.S.C. § 1915(e)(2)(B). An action is frivolous if it lacks an arguable basis in law or fact—i.e.,
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`where it is “based on an indisputably meritless legal theory” or presents “factual contentions [that]
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`are clearly baseless.” Neitzke v. Williams, 490 U.S. 319, 327 (1989); see Gallop v. Cheney, 642
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`F.3d 364, 368 (2d Cir. 2011). To avoid dismissal, a complaint must plead “enough facts to state
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`a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
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`(2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (tenet that allegations are assumed to
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`be true is “inapplicable to legal conclusions,” and “[t]hreadbare recitals of the elements of a cause
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`of action, supported by mere conclusory statements, do not suffice”). In addition, “district courts
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`may dismiss a frivolous complaint sua sponte even when the plaintiff has paid the required filing
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`fee.” Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000).
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`Even according “special solicitude” to Kraft’s pro se pleading, interpreting it to “raise the
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`strongest claims that it suggests,” Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (alterations
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`accepted) (quotation marks omitted), the district court did not err in sua sponte dismissing the
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`complaint as frivolous. Kraft alleged that he has been the subject of 24-hour, multi-jurisdictional
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`surveillance by federal “fusion centers” and the New York State Intelligence Center, which put a
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`“digital marker” on him in order to collect his personal data and harass him. See, e.g., Compl.
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`¶¶ 102-03, 119-120, Kraft v. City of New York, No. 19-cv-10286 (S.D.N.Y. Nov. 5, 2019) (Dkt.
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`No. 2). Kraft’s assertions that he is the victim of a broad conspiracy perpetrated by various federal
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`and state law enforcement agencies are not plausible. See Gallop, 642 F.3d at 368 (holding that
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`dismissal is appropriate when factual allegations are “fanciful, fantastic, or delusional” (quotation
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`marks omitted)); Denton v. Hernandez, 504 U.S. 25, 33 (1992) (holding that “a finding of factual
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`frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly
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`incredible”). In addition, contrary to Kraft’s assertion, the district court had the authority to
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`dismiss the appeal as frivolous despite Kraft paying the filing fee. See Fitzgerald, 221 F.3d at
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`364.
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`Finally, although a district court should not ordinarily dismiss a pro se complaint without
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`granting leave to amend, it may do so when leave to amend would be futile. Cuoco v. Moritsugu,
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`222 F.3d 99, 112 (2d Cir. 2000). Here, the gravamen is Kraft’s irrational belief that he was the
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`victim of a broad conspiracy perpetrated by numerous government entities; so better pleading
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`would not cure this defect. See id.
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`For the foregoing reasons, we AFFIRM the judgment of the district court.
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`FOR THE COURT:
`Catherine O’Hagan Wolfe, Clerk of Court
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