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Calvino v. Hadid

United States District Court, S.D. New York

January 9, 2020

ERNEST CALVINO JR., Plaintiff,
v.
GIGI HADID, VICTORIA SECRET MODEL, Defendant.

          ORDER OF DISMISSAL

          COLLEEN McMAHON, Chief United States District Judge

         Plaintiff Ernest Calvino Jr. brings this action alleging that Defendants violated his rights. By order dated January 9, 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, 474-75 (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 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): “neglect, lack of support, disrespect, threat to sue and stay with me[, ] asset, property, busnesse [sic] and money[.]” (ECF No. 2 at 2.)[1] Where asked to list the place(s) of occurrence, Plaintiff writes “Electronic communication” and where asked to state the date of occurrence, he writes “since 2018.” (Id. at 5.)

         Plaintiff alleges the following:

A few minutes ago, she told me that she sue me to stay with my stuff because that was the only thing she wanted from me, she is for sure in the conspiracy againts [sic] me of spying on me to obtaing [sic] information to buil [sic] her self [sic] off me she probably sue to stay with my stuff probably, she fase [sic] reported a complaing [sic] to misleading the court of justices in holyoke masachusset [sic][.]

(Id.)

         DISCUSSION

         Even when read with the “special solicitude” due pro se pleadings, Triestman, 470 F. 3 d 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 ...


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