Opinion
19-CV-11909 (CM)
01-10-2020
ERNEST CALVINO, JR., Plaintiff, v. ALL PEOPLE LIVING ABOUT SUPPORTING ME LEGAL AND INTERCEPTION DOCUMENTS IN COURTS AND SIGN PERJURY, Defendant.
ORDER OF DISMISSAL :
Plaintiff, appearing pro se, brings this action alleging that Defendant violated his rights. By order dated January 9, 2020, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis ("IFP"). For the reasons set forth below, the Court dismisses the complaint.
STANDARD OF REVIEW
The Court must dismiss an IFP complaint, or portion thereof, 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. 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).
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 by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); see also Denton v. Hernandez, 504 U.S. 25, 32-33 (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"); Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) ("[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).
BACKGROUND
Plaintiff drafted this complaint using the Court's general complaint form. Plaintiff does not check a box to indicate the basis for federal-court jurisdiction. But in the section in which he is asked to describe which of his federal constitutional or statutory rights have been violated, he writes, "Theft of legal Documents, Theft of Information, perjury." (ECF No. 2, at 2.)
In the section of the form in which he is asked to state the facts that support his claim, Plaintiff alleges the following: "Theres [sic] people that claim to support me legal[ly] and I have not see no result, this people had intercepted Document in different places with my information, my Asset, my private item and other, my Identity had been stolend [sic], my signature had be[en] du[p]licated without my permis[s]ion." (Id. at 5.)
Plaintiff describes his injuries as "Gardneshment [sic] (lost wages), Emotional Distress, Damage to me person image," and in the section of the form in which he is asked to state the relief he requests, Plaintiff writes: "money estimate value the most I can get back, transfer of Assert Justice but theres some ex[c]eption." (Id. at 6.)
DISCUSSION
Even when read with the "special solicitude" due pro se pleadings, Triestman, 470 F.3d at 474-75, Plaintiff's claims rise to the level of the irrational, and there is no legal theory on which he can rely. See Denton, 504 U.S. at 33; Livingston, 141 F.3d at 437.
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). 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)(i).
WARNING
Plaintiff has filed 41 actions in this Court from December 17, 2019, through January 7, 2020. The Court has dismissed 11 of these actions as frivolous, and has warned Plaintiff that further vexatious or frivolous litigation in this Court will result in an order under 28 U.S.C. § 1651 barring him from filing new actions IFP in this Court unless he receives prior permission. See Calvino v. Hadid, ECF 1:20-CV-0138, 4 (S.D.N.Y. Jan. 9, 2020); Calvino v. Little Wane Father, ECF 1:20-CV-0134, 4 (S.D.N.Y. Jan. 9, 2020); Calvino v. Sanchez, ECF 1:20-CV-0065, 4 (S.D.N.Y. Jan. 9, 2020); Calvino v. Sportefy Inc., ECF 1:19-CV-11956, 4 (S.D.N.Y. Jan. 9, 2020); Calvino v. Cirino, ECF 1:19-CV-11953, 4 (S.D.N.Y. Jan. 7, 2020); Calvino v All the women that sue me Int'l and Nat'l, ECF 1:19-CV-11914, 4 (S.D.N.Y. Jan. 7, 2020); Calvino v. Salad, ECF 1:19-CV-11827, 4 (S.D.N.Y. Jan. 7, 2020); Calvino v. Trainor, ECF 1:19-CV-11668, 4 (S.D.N.Y. Jan. 7, 2020); Calvino v. Jones, ECF 1:19-CV-11601, 3 (S.D.N.Y. Dec. 23, 2019); see Calvino v. Internal Affe, ECF 1:19-CV-11611, 3 (S.D.N.Y. Dec. 23, 2019); Calvino v. Anneka C., ECF 1:19-CV-11610, 3 (S.D.N.Y. Dec. 23, 2019).
The Court reiterates the warning.
CONCLUSION
The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on the docket.
The Court dismisses Plaintiff's complaint as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i).
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). SO ORDERED. Dated: January 10, 2020
New York, New York
/s/_________
COLLEEN McMAHON
Chief United States District Judge