Opinion
20-CV-0872 (CM)
02-03-2020
ERNEST CALVINO, JR., Plaintiff, v. JOEL RIVERA, ET AL., Defendants.
ORDER OF DISMISSAL :
Plaintiff, appearing pro se, brings this action under the Court's federal question jurisdiction, asserting claims for "conspiracy of scam, conspiracy of electronic harassment." By order dated February 3, 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 (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, Jr. makes the following allegations:
This people are related to my mother. They are part of the electronic harassment, computer theft investigation they have probably asset that belong to my money and other valuable item. Theres intellectual property that they invested in that belongs to my and they have not pay my for Neglect to transfer asset, property business because the sicuntaces.(ECF 2, at 5.) Plaintiff contends that his claims arose in New York, Pennsylvania, Massachusetts, and internationally. (Id.)
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).
Plaintiff filed nearly one hundred actions in this Court between mid-December 2019 and the date of this order, more than 70 of which have already been dismissed as frivolous. See Calvino v. DEA, ECF 1:20-CV-0649, 4 (S.D.N.Y. Feb. 3, 2020) (collecting cases). Because of Plaintiff's vexatious litigation in this Court, the Court has directed Plaintiff to show cause why it should not enter an order that would require Plaintiff to seek permission to file any new action in this Court and would direct the Clerk of Court to discard any filing that does not comply with the filing restrictions imposed. (Id.)
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: February 3, 2020
New York, New York
/s/_________
COLLEEN McMAHON
Chief United States District Judge