19-4193
    Kraft v. City of New York


                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER
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.

                  At a stated term of the United States Court of Appeals for the Second Circuit,
    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.

    PRESENT:
                DENNIS JACOBS,
                PIERRE N. LEVAL,
                JOSEPH F. BIANCO,
                      Circuit Judges.
    _____________________________________

    Warren R. Kraft,

                                Plaintiff-Appellant,

                      v.                                                  19-4193

    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
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,

                  Defendants-Appellees.*
_____________________________________

FOR PLAINTIFF-APPELLANT:                                                   Warren R. Kraft, pro se
                                                                           Red Bank, NJ.

FOR DEFENDANTS-APPELLEES:                                                  No appearance.

        Appeal from a judgment of the United States District Court for the Southern District of

New York (Furman, J.).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

        Warren R. Kraft, pro se, sued the City of New York, unknown New York City police

officers, federal law enforcement agents, New York State law enforcement officers, the United

States, the director and unknown employees of the New York State Intelligence Center, and

unknown employees of the New York State Division of Homeland Security and Emergency

Services, under 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 

(1971). In his 84-page complaint, Kraft alleged various constitutional

violations, including that an undercover confidential informant, at the direction of an unknown law

enforcement agency, used excessive force and assaulted him in 2018; that law enforcement officers

conspired to conceal that excessive use of force; and that he has been the subject of covert,

unconstitutional surveillance by unknown law enforcement agencies—including illegal


* The Clerk of Court is respectfully directed to amend the official caption in this case to conform to the
caption above.
                                                     2
wiretapping and 24-hour, nationwide surveillance—since 2014, and that those agencies put a

digital marker on him to collect his personal data and harass him. After the assault in 2018, Kraft

allegedly sought help from New York City police officers, but when the officers detained the

“confidential informant,” Kraft informed the officers he would not press charges because,

according to Kraft, confidential informants are immune from criminal prosecution. The district

court sua sponte dismissed the complaint as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i),

reasoning that, even under the liberal reading afforded to pro se pleadings, the complaint’s claims

were frivolous and this defect could not be cured by amendment. Kraft appealed. We assume

the parties’ familiarity with the underlying facts, procedural history, and issues on appeal.

       This Court reviews de novo a district court’s sua sponte dismissal of a complaint pursuant

to 28 U.S.C. § 1915(e)(2). Zaleski v. Burns, 

, 52 (2d Cir. 2010) (per curiam). Under

that statute, the district court must dismiss a complaint filed in forma pauperis if it determines that

the action or appeal “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be

granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.”

28 U.S.C. § 1915(e)(2)(B). 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 [that]

are clearly baseless.” Neitzke v. Williams, 

, 327 (1989); see Gallop v. Cheney, 

, 368 (2d Cir. 2011). To avoid dismissal, a complaint must plead “enough facts to state

a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 

, 570

(2007); see also Ashcroft v. Iqbal, 

, 678 (2009) (tenet that allegations are assumed to

be true is “inapplicable to legal conclusions,” and “[t]hreadbare recitals of the elements of a cause

of action, supported by mere conclusory statements, do not suffice”). In addition, “district courts

                                                  3
may dismiss a frivolous complaint sua sponte even when the plaintiff has paid the required filing

fee.” Fitzgerald v. First E. Seventh St. Tenants Corp., 

, 364 (2d Cir. 2000).

       Even according “special solicitude” to Kraft’s pro se pleading, interpreting it to “raise the

strongest claims that it suggests,” Hill v. Curcione, 

, 122 (2d Cir. 2011) (alterations

accepted) (quotation marks omitted), the district court did not err in sua sponte dismissing the

complaint as frivolous. Kraft alleged that he has 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. See, e.g., Compl.

¶¶ 102-03, 119-120, Kraft v. City of New York, No. 19-cv-10286 (S.D.N.Y. Nov. 5, 2019) (Dkt.

No. 2). Kraft’s assertions that he is the victim of a broad conspiracy perpetrated by various federal

and state law enforcement agencies are not plausible. See 

(holding that

dismissal is appropriate when factual allegations are “fanciful, fantastic, or delusional” (quotation

marks omitted)); Denton v. Hernandez, 

, 33 (1992) (holding that “a finding of factual

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

incredible”). In addition, contrary to Kraft’s assertion, the district court had the authority to

dismiss the appeal as frivolous despite Kraft paying the filing fee. See 

.

       Finally, although a district court should not ordinarily dismiss a pro se complaint without

granting leave to amend, it may do so when leave to amend would be futile. Cuoco v. Moritsugu,

, 112 (2d Cir. 2000). Here, the gravamen is Kraft’s irrational belief that he was the

victim of a broad conspiracy perpetrated by numerous government entities; so better pleading

would not cure this defect. See

For the foregoing reasons, we AFFIRM the judgment of the district court.

                                    FOR THE COURT:
                                    Catherine O’Hagan Wolfe, Clerk of Court




                                       5