Opinion
20-CV-0651 (CM)
01-28-2020
ERNEST CALVINO JR., Plaintiff, v. ROMANIAN FROM THE JAIGUAR DEALER IN 11 AVENUE; ROMANIAN MANAGER, Defendants.
ORDER OF DISMISSAL :
Plaintiff brings this action pro se. By order dated January 28, 2020, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis ("IFP"). For the reasons set forth below, the Court dismisses the complaint.
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 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 (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, 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 asserts his claims using the Court's general complaint form. He checks to the box on the form to invoke the Court's federal question jurisdiction. In the section of the form that asks which of his federal constitutional or federal statutory rights have been violated, Plaintiff writes, "mislead by the manager of the Jaguar dealer, car dealer sueponer." (ECF No. 2, at 2.) In the section of the form that asks Plaintiff to list the place(s) of occurrence, he writes "11 Avenue Jaguar car dealer." (Id. at 5.) He indicates that the alleged violations occurred "since early 2018." (Id.)
Plaintiff alleges the following, verbatim:
unknow and know people claim, I own a lot of propertys most of the car dealer, busnesses around that area. People to suepone Taylor Swift, Edward Snower, Jezzika Alva, Jennifer lopez Trump son, Alcan and a few people around that area[.] Refer to D.A. for investigation to claim all property, busnesses, asset to be deliver for me investigate to collect all my propertys busnesses, asset in the 5 boro for transfer Deliver for my name Ernest Calvino.(Id.)
In the section of the form asking him to describe his injuries, Plaintiff writes, "Gardnashment, stress, Disrespect." (Id. at 6.) In the section of the form asking him to state the relief he is seeking, Plaintiff writes, "Deliver, transfer, Retur of property busnesses, asset, money. investigate the misleadment around that area and the manager from the Jaguar car dealer." (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 has filed numerous frivolous actions in this Court; this Court has warned Plaintiff that further vexatious or frivolous litigation in this Court will result in an order barring him from filing new civil actions in this Court IFP without the Court's leave to file. See, e.g., Calvino v. Jones, ECF 1:19-CV-11601, 3 (S.D.N.Y. Dec. 23, 2019). In an order dated January 10, 2020, the Court directed Plaintiff to show cause why the Court should not bar him from filing any future civil action in this Court IFP without the Court's leave to file. See Calvino v. Fauto L., ECF 1:19-CV-11958, 4 (S.D.N.Y. Jan. 10, 2020). Plaintiff remains warned.
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 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 28, 2020
New York, New York
/s/_________
COLLEEN McMAHON
Chief United States District Judge