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Calvino v. Cirino

United States District Court, S.D. New York

January 7, 2020

ERNEST CALVINO, JR., Plaintiff,
v.
ROSA CIRINO, et al., Defendants.

          ORDER OF DISMISSAL

          COLLEEN McMAHON, CHIEF UNITED STATES DISTRICT JUDGE.

         Plaintiff brings this action pro se. He does not state the basis for the Court's subject-matter jurisdiction over this action. By order dated January 7, 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 brings this action against an individual living in Massachusetts. He does not specify whether he invokes the Court's federal question or diversity subject-matter jurisdiction. But in response to a question on his form complaint regarding which of his rights the defendant violated, he states “fraund, theft of private document misleading the true.” (ECF 2 at 2) (errors in original). He later states that he “was temporalry staying at [the defendant's] house in Holyoke and all [his] private information had been stolend from her house.” (Id. at 4) (errors in original). He claims his damages include “[l]ost of wages, damage to mein persons damage to me personal image, conspiracy of theft, conspiracy of torture, conspiracy of scam.” (Id. at 6) (errors in original). He seeks as relief “courter sue because they stoul information, faourch signature, returd of all the money, propertys, valuebles to me Ernest C.” (Id. at 6) (errors in original).

         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 Plaintiffs 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 numerous actions in December 2019, some of which have already been dismissed as frivolous. See, e.g., Calvino v. Jones, ECF 1:19-CV-11601, 3 (S.D.N.Y. Dec. 23, 2019). And 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.

         CONCLUSION

         The Clerk of Court is directed to mail a copy of this order to Plaintiff ...


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