“[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.”
How later courts described this case
- “[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.”
- holding that “a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ERNEST CALVINO JR.,
Plaintiff,
19-CV-11954 (CM)
-against-
ORDER OF DISMISSAL
NAJEE BROWN,
Defendant.
COLLEEN McMAHON, Chief United States District Judge:
Plaintiff brings this action pro se. By order dated January 21, 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, using the Court’s general complaint form, brings this action alleging that
Defendant has conspired to harm him. He asserts the following facts, verbatim:
claim to support me, claim that he has my asset, someone claim hes holding my
mail to help me.
(ECF No. 2, 5 ¶ III.) Plaintiff seeks the return of his property.
DISCUSSION
A. Frivolous Complaint
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 Plaintiff’s 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).
B. Plaintiff’s Litigation History
Since December 17, 2019, Plaintiff has filed numerous frivolous actions in this Court. He
filed this and other frivolous complaints even after the Court warned him that further vexatious
or frivolous litigation in this Court will result in an order barring him from filing new actions IFP
unless he receives prior permission. See, e.g., Calvino v. Jones, ECF 1:19-CV-11601, 3 (S.D.NLY.
Dec. 23, 2019). On January 10, 2020, the Court directed Plaintiff to show cause why he should
not be barred from filing any further actions in this Court IFP without first obtaining permission
from the Court to file his complaint. See Calvino v. Fauto L., ECF 1:19-CV-11958, 4 (S.D.NLY.
Jan. 10, 2020).
CONCLUSION
The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on
the docket. The Court dismisses this action as frivolous under 28 U.S.C. § 1915(e)(2)(B)G).
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would
not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. See
Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
Dated: January 22, 2020 ,
New York, New York huh Wyk
COLLEEN McMAHON
Chief United States District Judge