Opinion
20-CV-00135 (CM)
01-23-2020
ERNEST CALVINO, JR., Plaintiff, v. RUBEN CEVALLOZ; RUBEN CEVALLOZ, JR.; JOSEPH CEVALLOZ; VILMA C. Defendants.
ORDER OF DISMISSAL :
Plaintiff brings this action pro se. By order dated January 17, 2020, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis ("IFP"). The Court dismisses this action for the reasons set forth below.
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, 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 [claims] that they suggest," Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (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, 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, 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).
BACKGROUND
Plaintiff asserts the following facts verbatim in this complaint:
This Defendant are related to me this people had destroy me misleading coments, I have lost a lot of time trying to located my bussnes transc., morgash transc., money, other asset on this people were hiding from me avoid to make contac to transfer asset, money, they had neglected me on purpose wend they knew I needed my stuff and legal support.(ECF No. 2 ¶ III.)
DISCUSSION
Even when read with the "special solicitude" due pro se pleadings, Triestman, 470 F.3d at 475, 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 this action as frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i).
Plaintiff has filed 45 actions in this Court from December 17, 2019, through January 9, 2020. Seventeen of these actions have been dismissed as frivolous, and Plaintiff has been warned 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 unless he receives prior permission. See e.g., 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); 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).
By order dated January 10, 2020, Plaintiff was directed to show cause by declaration why he should not be barred as of January 10, 2020, from filing any further actions in this Court IFP without first obtaining permission from this Court to file his complaint. See Calvino v. Fauto L., ECF 1:19-CV-11958, 4 (Jan. 10, 2020).
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 this action 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 23, 2020
New York, New York
/s/_________
COLLEEN McMAHON
Chief United States District Judge