Opinion
20-CV-00066 (CM)
01-15-2020
ERNEST CALVINO, JR., Plaintiff, v. NEW YORK CITY POLICE; ROBERT C., Undercover agent of New York PD, Defendants.
ORDER OF DISMISSAL :
Plaintiff brings this action pro se. By order dated January 8, 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
Following are Plaintiff's allegations as written:
N.Y.P.D. was investigating me, under there survillace I been extords assaulted intimidated, bully, spyed, harass, difameted, they haven't done nothing about it. Under there survillace I was tokend from the place I was staying ilegaly and returnd back but with an electronic device that monitor my brain thinking (data breach) they are neglecting to protect me on purpose with unjustifiable excuse and pretending that they don't know.(ECF No. 2 ¶ III.)
In the section of the complaint prompting Plaintiff to explain which rights have been violated, Plaintiff asserts:
Lack of investigation, conspiracy of spying, conspiracy of exploitation, neglect to protect me, conspiracy false imprisonment, conspiracy of [fraud], conspiracy of computer theft, conspiracy of harassment, etc.(Id. ¶ I.)
In the relief section, Plaintiff writes: "money estimate pending," "refund of information," "information of investigation," and "information about all the undercover agents."
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.
Plaintiff has filed numerous actions in this Court beginning in December 2019, some of which have been dismissed as frivolous. See, e.g., Calvino v. Jones, ECF 1:19-CV-11601, 3 (S.D.N.Y. Dec. 23, 2019). Plaintiff has already been warned that further vexatious or frivolous litigation in this Court will result in an order barring him under 28 U.S.C. § 1651 from filing new civil actions in this Court IFP unless he receives prior permission. (Id.) The Court reiterates that warning.
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, and in light of Plaintiff's litigation history, the Court declines to grant him leave to amend.
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 15, 2020
New York, New York
/s/_________
COLLEEN McMAHON
Chief United States District Judge