Opinion
20-CV-0518 (CM)
01-22-2020
ERNEST CALVINO JR., Plaintiff, v. T.D. BANK, Defendant.
ORDER OF DISMISSAL :
Plaintiff Ernest Calvino Jr. brings this action alleging that Defendant violated his rights. By order dated January 22, 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.
Plaintiff Ernest Calvino Jr., lists "Jessica A." as another Plaintiff in the caption of his complaint. Calvino is the only Plaintiff to have signed the complaint. See Fed. R. Civ. P. 11(a) (signature requirement for Court submissions). And as a nonattorney litigant appearing pro se, Calvino cannot represent another person in this action. See, e.g., Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998). Thus, the Court regards Calvino as the only Plaintiff in this action and dismisses any claims he asserts on behalf of "Jessica A." without prejudice.
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, 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 drafted this complaint using the general complaint form provided by this Court. After checking the box on the form to invoke the Court's diversity of citizenship jurisdiction, he writes the following (in the section in which he is asked to state which of his federal constitutional or federal statutory rights have been violated): "conspiracy of bank fraund [sic], conspiracy of computer theft, conspiracy of electronic misleadment [sic], conspiracy of scam[.]" (ECF No. 2 at 2.) Where asked to list the place(s) of occurrence, Plaintiff writes "New York, Massachussets [sic], other," and where asked to state the date(s) of occurrence, he leaves that section blank. (Id. at 5.)
Page numbers refer to those generated by the Court's electronic case filing system. --------
Plaintiff alleges the following:
Missing money from bank accounts mislead electrocly [sic] to go there multiple times in west springfield area, a people but money there for my an I need useded [sic], I had been there in the bank and they had mislead me, saying that they don't have nothing there for my[.](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. The Court therefore dismisses this action as frivolous. 28 U.S.C. § 1915(e)(2)(B)(i).
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.
LITIGATION HISTORY
Plaintiff has filed 68 actions in this Court from December 17, 2019, through January 17, 2020. More than thirty 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. Armany, ECF 1:20-CV-0387, 3 (S.D.N.Y. Jan. 17, 2020); 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, the Court directed Plaintiff to show cause in writing why he should not be barred as of January 10, 2020, from filing any further IFP actions in this Court without first obtaining this Court's permission. 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.
Plaintiff's complaint is dismissed as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i).
Plaintiff remains 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.
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. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue). SO ORDERED. Dated: January 22, 2020
New York, New York
/s/_________
COLLEEN McMAHON
Chief United States District Judge