United States District Court, S.D. New York
ORDER OF DISMISSAL
COLLEEN McMAHON, Chief United States District Judge
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
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
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
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.) 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.
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][.]
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.
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 ...