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Calvino v. Swift

United States District Court, S.D. New York

January 10, 2020

ERNEST CALVINO JR., Plaintiff,
v.
TAYLOR SWIFT, THE CELEBRITY, Defendant.

          ORDER OF DISMISSAL

          Colleen McMahon, Chief United States District Judge.

         Plaintiff Ernest Calvino Jr. brings this action alleging that Defendant Taylor Swift violated his rights. By order dated December 23, 2019, 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 federal question jurisdiction, he lists the following (in the section in which he is asked to state which of his federal constitutional or federal statutory rights have been violated): “obstruction of my civil right[, ] obstruction of electronic communication[, ] ilegal [sic] spying, misleading, Harassment.” (ECF No. 2 at 2.)[1]Where asked to list the place(s) of occurrence, Plaintiff writes “[h]arassment, political difamation [sic]” and where asked to state the date of occurrence, he writes “curred [sic].” (Id. at 5.)

         Plaintiff alleges “Electronic stacking [sic], Electronic Difamation [sic][, ] Electronic Harrasment [sic], Electronic spying[, ] obstruct civil right[s], obstruct electronic communication[.]” (Id. at 5.) In the section in which Plaintiff is asked to state his injuries, he writes: “emotional damage, mental health Damage[, ] Damage to mei [sic] personal image.” (Id. at 6.) Where asked to state the relief he seeks, Plaintiff writes: “Estimate value pending.” (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.

         WARNING

         Plaintiff has filed 41 actions in this Court from December 17, 2019, through January 7, 2020. Fifteen 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 Barn, ECF 1:20-CV-0157, 3 (S.D.N.Y. Jan. 10, 2019); Calvino v. Hadid, ECF1:20-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, ECF1:20-CV-0065, 4 (S.D.N.Y. Jan. 9, 2020); Calvino v. Sportefy Inc., ECF1:19-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 ...


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