Opinion
20-CV-00148 (CM)
01-17-2020
ERNEST CALVINO, JR., Plaintiff, v. EDWARD SNOWER, Defendant.
ORDER OF DISMISSAL :
Plaintiff brings this action pro se. By order dated January 9, 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
Plaintiff filed this complaint under the Court's federal question jurisdiction against Edward Snower, Marvin Andino, and Tatiana Hernandez. Plaintiff asserts that Defendants violated his rights in the following way: "lack to transfer asset, neglect, lack to provide investigative information lack to enforce my legal and constitutional right." The complaint asserts the following facts, verbatim:
Lack to provide information this defendant claim they are supporting me other people had saided the same thing they had said that they got my money, asset secured, Edward Snow supose to know all my information, money, asset, internatioly, national, local and I have not seen my money, asset information I need to be able to find the people to get my money, asset, and investigative information about the conspiracy to electronicly torture me, destroy me, rob me, exoted me, stack me, spy me, harass me, difameted me to destroy posible opportunity to be able to use my legal right and constitutional right.(ECF No. 2 ¶ III.)
In the relief section of the complaint, Plaintiff seeks "information about the conspiracy against me, money estimate value pending transfer of asset." (Id. ¶ IV.)
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.
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 this action as frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i).
Plaintiff has filed 45 actions in this Court from December 17, 2019, through January 9, 2020. Seventeen of these actions have been dismissed as frivolous, and Plaintiff has been warned that further vexatious or frivolous litigation in this Court will 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. Hadid, ECF 1:20-CV-0138, 4 (S.D.N.Y. Jan. 9, 2020); Calvino v. Little Wane Father, ECF 1:20-CV-0134, 4 (S.D.N.Y. Jan. 9, 2020); Calvino v. Sanchez, ECF 1:20-CV-0065, 4 (S.D.N.Y. Jan. 9, 2020); Calvino v. Sportefy Inc., ECF 1:19-CV-11956, 4 (S.D.N.Y. Jan. 9, 2020); Calvino v. Cirino, ECF 1:19-CV-11953, 4 (S.D.N.Y. Jan. 7, 2020); Calvino v All the women that sue me Int'l and Nat'l, ECF 1:19-CV-11914, 4 (S.D.N.Y. Jan. 7, 2020); Calvino v. Salad, ECF 1:19-CV-11827, 4 (S.D.N.Y. Jan. 7, 2020); Calvino v. Trainor, ECF 1:19-CV-11668, 4 (S.D.N.Y. Jan. 7, 2020); Calvino v. Jones, ECF 1:19-CV-11601, 3 (S.D.N.Y. Dec. 23, 2019); Calvino v. Internal Affe, ECF 1:19-CV-11611, 3 (S.D.N.Y. Dec. 23, 2019); Calvino v. Anneka C., ECF 1:19-CV-11610, 3 (S.D.N.Y. Dec. 23, 2019).
By order dated January 10, 2020, Plaintiff was directed to show cause by declaration why he should not be barred as of January 10, 2020, from filing any further actions in this Court IFP without first obtaining permission from this Court to file his complaint. See Calvino v. Fauto L., ECF 1:19-CV-11958, 4 (Jan. 10, 2020).
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 17, 2020
New York, New York
/s/_________
COLLEEN McMAHON
Chief United States District Judge