“[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 an appellant demonstrates good faith when he seeks review of a nonfrivolous issue
- 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,
20-CV-0464 (CM)
-against-
ORDER OF DISMISSAL
GOOGLE INC; GOOGLE CORP.,
GOOGLE MAIL,
Defendants.
COLLEEN MCMAHON, Chief United States District Judge:
Plaintiff Ernest Calvino Jr. brings this action alleging that Defendants violated his rights.
By order dated January 21, 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
(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 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): “suepone [sic] for investigative puporse [sic][,]
Discrepacy [sic] between my Ernest Calvino Jr. and all Google corp., Googles [sic] inc., Googles
[sic] mail[,] Lack of Busness [sic] relation with my, suepone [sic] cellphone for investigative
purpose, need of pictures[.]” (ECF No. 2 at 2.)1 Where asked to list the place(s) of occurrence,
Plaintiff writes “Yonkers[,] New York” and where asked to state the date(s) of occurrence, he
leaves that section blank. (Id. at 5.)
Plaintiff alleges the following:
I need pictures that are in a Motorola cellphone. I puchase [sic] this cellphone in
yonker [sic] area in a Verizon store, the cellphone model Motorola prepay GK40
cellphone number 914-904-0448 email alcerncevedo@gmail.com
The cellphone is lock[sic] and the pictures I need are inside the phone, the screen
is lock[sic] and I can’t open the screen lock, screen lock setting in dots[.]
(Id.)
1 Page numbers refer to those generated by the Court’s electronic case filing system.
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.
LITIGATION HISTORY
Plaintiff has filed 68 actions in this Court from December 17, 2019, through January 17,
2020. More than thirty 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. Armany, ECF 1:20-CV-0387, 3 (S.D.N.Y. Jan. 17, 2020); Calvino v. Hadid, ECF
1:20-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, ECF 1:20-CV-0065, 4 (S.D.N.Y. Jan. 9, 2020);
Calvino v. Sportefy Inc., ECF 1:19-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 1:19-CV-11668, 4 (S.D.N.Y. Jan. 7, 2020);
Calvino v. Jones, ECF 1:19-CV-11601, 3 (S.D.N.Y. Dec. 23, 2019); Calvino v. Internal Affe, ECF
1:19-CV-11611, 3 (S.D.N-Y. Dec. 23, 2019); Calvino v. Anneka C., ECF 1:19-CV-11610, 3
(S.D.N.Y. Dec. 23, 2019).
By order dated January 10, 2020, the Court directed Plaintiff to show cause in writing
why he should not be barred as of January 10, 2020, from filing any further IFP actions in this
Court without first obtaining this Court’s permission. See Calvino v. Fauto L., ECF 1:19-CV-
11958, 4 (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.
Plaintiff’s complaint is dismissed as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i).
Plaintiff remains 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.
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. Cf
Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates
good faith when he seeks review of a nonfrivolous issue).
SO ORDERED.
Dated: January 22, 2020
New York, New York hie. Iu Wyk
COLLEEN McMAHON
Chief United States District Judge