Opinion
20-CV-376 (CM)
01-17-2020
ERNEST CALVINO, JR., Plaintiff, v. KREMSHA, Defendant.
ORDER OF DISMISSAL :
Plaintiff brings this action pro se, invoking the Court's diversity jurisdiction. By order dated January 15, 2020, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis. The Court dismisses the complaint for the reasons set forth below.
STANDARD OF REVIEW
The Court must dismiss a complaint, or portion thereof, that is frivolous or malicious, fails to state a claim upon 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), 1915A(b); see Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). 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, 324-25 (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 "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 Ernest Calvino brings this action under the Court's diversity jurisdiction, asserting claims against "Kemsha." Plaintiff alleges that someone was "arrested because a conspiracy of extortion by Robert Pre[c]in[c]t 46 Bronx NY." (ECF 2, at 2.) In response to a question on the Court's form complaint directing the plaintiff to state what happened and plead facts supporting the case, Plaintiff writes, without more, "co-conspired of extortion co-conspired of explo[i]tation etc." (Id. at 5.)
Plaintiff states that he suffered "mental damage, emotional damage, los[s] of time, los[s] of money." (Id. at 6.) He seeks "money, justice, bus[i]nesses, asset[s] returned, transfer, deliver with certified documents to my name." (Id.)
Plaintiff has filed at least 30 actions within the past month, many of which have been dismissed as frivolous. Because of this abuse of the privilege of proceeding without prepaying the filing fee, the Court directed Plaintiff in Calvino v. L., ECF 1:19-CV-11958 (S.D.N.Y. Jan. 10, 2020), to show cause why he should not be barred from filing new actions IFP without first obtaining leave of court.
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).
CONCLUSION
The Clerk of Court is directed to mail a copy of this order to Plaintiff, and note service on the docket.
Plaintiff's complaint is dismissed 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 in forma pauperis 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 17, 2020
New York, New York
/s/_________
COLLEEN McMAHON
Chief United States District Judge