Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Calvino v. Barn

United States District Court, S.D. New York

January 10, 2020

ERNEST CALVINO, JR., Plaintiff,
v.
WILLIAM E. BARN, Defendant.

          ORDER OF DISMISSAL

          COLLEEN McMAHON, CHIEF UNITED STATES DISTRICT JUDGE

         Plaintiff brings this action pro se, invoking the Court's diversity jurisdiction. Plaintiff sues an attorney, seeking to have the attorney represent Plaintiff in his legal matters, including his “civil, criminal, federal[, and] international cases.” By order dated January 10, 2020, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis (IFP). The Court dismisses the complaint for the reasons set forth below.

         STANDARD OF REVIEW

         The Court must dismiss a complaint, or portion thereof, that is frivolous or malicious, fails to state a claim upon 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), 1915A(b); see Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). 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, 324-25 (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, 32-33 (1992) (holding that “finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible”); Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (“[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 Ernest Calvino invokes the Court's diversity jurisdiction and brings suit against William Barn, who he identifies as an attorney. Plaintiff makes the following allegations:

He knows me since 2018. [H]e [k]nows my property[ies], bus[i]nesses and other things related. He can represent[t] me in most of my legal matters at civil, criminal, federal, international cases. I am requesting his services to protect, find and gain my propert[ies], bus[i]nesses, and other things related of the above mention[ed].

(Compl., ECF No. 2, at 2.) Plaintiff states that he is suing for “los[s] of time” and “request[s] legal services.” (Id. at 6.)

         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.

         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 complaints 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 more than a dozen actions in the past month, many of which have already been dismissed as frivolous. See, e.g., Calvino v. Jones, ECF 1:19-CV-11601 (CM) (S.D.N.Y. Dec. 23, 2019). 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. ยง 1651 from filing new ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.