Opinion
1:19-CV-11958 (CM)
01-10-2020
ERNEST CALVINO, JR., Plaintiff, v. FAUTO L.; FAUTO DOBLES, Defendants.
ORDER OF DISMISSAL AND TO SHOW CAUSE UNDER 28 U.S.C. § 1651 :
Plaintiff filed this action pro se. By order dated January 6, 2020, the Court granted Plaintiff's request to proceed in forma pauperis (IFP). For the reasons set forth below, the Court dismisses the complaint.
STANDARD OF REVIEW
The Court must dismiss an in forma pauperis 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). 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).
BACKGROUND
Plaintiff Ernest Calvino makes the following allegations:
[Defendants] claim to help me. Claim to transfer asset, money, propert[ies] bus[i]nesses w[hen] we make contact.(Id. at 5.)
Plaintiff brings this suit against Defendants Fauto L. and Fauto Dobles for "damage to [Plaintiff's] personal image, emotional damage, mental damage, los[s] of money." (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).
LITIGATION HISTORY
Plaintiff has filed more than two dozen cases within the past month, many of which have already been dismissed as frivolous. See, e.g., Calvino v. Jones, ECF 1:19-CV-11601, 2 (S.D.N.Y. Dec. 23, 2019); Calvino v. C., ECF 1:19-CV-11610, 2 (S.D.N.Y. Dec. 23, 2019); Calvino v. Internal Affe et al., ECF 1:19-CV-11611, 2 (S.D.N.Y. Dec. 23, 2019).
Plaintiff filed this and other frivolous actions even after the Court warned him in Calvino, ECF 1:19-CV-11601, 2 (S.D.N.Y. Dec. 23, 2019), that continuing to file frivolous actions would 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. Miller, ECF 1:19-CV-11952, 2 (S.D.N.Y. filed Dec. 30, 2019); Calvino v. Baez, ECF 1:19-CV-11955, 2 (S.D.N.Y. filed Dec. 30, 2019).
Accordingly, the Court directs Plaintiff to show cause by declaration why he should not be barred as of the date of this order from filing any further actions in this Court IFP without first obtaining permission from this Court to file his complaint. See Moates v. Barkley, 147 F.3d 207, 208 (2d Cir. 1998) (per curiam) ("The unequivocal rule in this circuit is that the district court may not impose a filing injunction on a litigant sua sponte without providing the litigant with notice and an opportunity to be heard.").
Plaintiff shall submit to this Court within thirty days of the date of this order, a written declaration setting forth good cause why the Court should not impose this pre-filing injunction. Should Plaintiff fail to submit a declaration within the time directed, or should Plaintiff's declaration fail to set forth good cause why this injunction should not be entered, he shall be barred from filing any further actions IFP in this Court without first obtaining permission from this Court to do so.
CONCLUSION
The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on the docket. The complaint, filed in forma pauperis under 28 U.S.C. § 1915(a), is dismissed as frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i). Plaintiff shall have thirty days to show cause by written declaration why an order should not be entered under 28 U.S.C. § 1651 barring Plaintiff, as of the date of this order, from filing any future action in forma pauperis in this Court without prior permission. A declaration form is attached to this order.
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 in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962) Dated: January 10, 2020
New York, New York
/s/_________
COLLEEN McMAHON
Chief United States District Judge __________ Write the first and last name of each plaintiff or petitioner. -against- __________ Write the first and last name of each defendant or respondent. Case No. ___ CV __________
DECLARATION
__________ Briefly explain above the purpose of the declaration, for example, "in Opposition to Defendant's Motion for Summary Judgment," or "in Response to Order to Show Cause." I, __________ , declare under penalty of perjury that the following facts are true and correct:
In the space below, describe any facts that are relevant to the motion or that respond to a court order. You may also refer to and attach any relevant documents.__________ Attach additional pages and documents if necessary. __________
Executed on (date)
__________
Signature __________
Name
__________
Prison Identification # (if incarcerated) __________
Address __________
City __________
State __________
Zip Code __________
Telephone Number (if available)
__________
E-mail Address (if available)