Calvino v. Cirino
- Colleen McMahon
- 1:19-cv-11953
- U.S. District Court · Southern District of New York
- 3
In Calvino v. Cirino, Judge McMahon dismissed the pro se action as frivolous and denied fee-waiver status for an appeal.
The order directly affected Ernest Calvino, Jr. by dismissing his action and denying fee-waiver status for an appeal. It also concerned Rosa Cirino and the other named defendants, against whom the action was dismissed.
What happened
In Calvino v. Cirino, Ernest Calvino, Jr., who represented himself, sued Rosa Cirino and others. He did not identify the basis for federal court jurisdiction and alleged fraud, theft of private information, and related conduct involving a house where he had been staying.
Calvino sought money, wages, property, and other relief. The court said his allegations were irrational and did not identify a valid legal theory, even when read liberally as required for people representing themselves.
Judge Colleen McMahon dismissed the action as frivolous under the federal law governing fee-waived cases and declined to allow an amended complaint because the defects could not be cured. The court also ruled that any appeal would not be taken in good faith and denied fee-waiver status for an appeal.
The detailed version
- Calvino v. Cirino · No. 1:19-cv-11953
- Colleen McMahon
- Jan. 7, 2020
Background
Ernest Calvino, Jr. brought the action representing himself against Rosa Cirino and others. The opinion describes the action as being against an individual living in Massachusetts. Calvino did not state whether he was relying on federal-question jurisdiction or diversity jurisdiction.
In his form complaint, Calvino identified the alleged violations as “fraund, theft of private document misleading the true.” He stated that he had been temporarily staying at the defendant’s house in Holyoke and that his private information had been stolen from the house. He listed alleged damages including lost wages, harm to his person and personal image, and alleged conspiracies involving theft, torture, and fraud. He sought the return of money, property, valuables, and other relief.
Legal standard
Because the court had allowed Calvino to proceed without prepaying filing fees, it was required to dismiss the complaint if it was frivolous, malicious, failed to state a legally sufficient claim, sought money from an immune defendant, or fell outside the court’s subject-matter jurisdiction. A claim is frivolous when it lacks an arguable legal or factual basis. The court also had to read a self-represented plaintiff’s allegations liberally and interpret them to raise the strongest claims they reasonably suggest.
Court’s analysis
The court concluded that, even under that liberal reading, Calvino’s claims were irrational and had no legal theory supporting them. The court explained that self-represented plaintiffs are generally given an opportunity to amend defective complaints, but amendment is not required when it would be futile. It found that the defects in Calvino’s complaint could not be cured by amendment.
The opinion also states that Calvino had filed numerous actions in December 2019, some of which had already been dismissed as frivolous. The court reiterated an earlier warning that further vexatious or frivolous litigation could lead to an order barring him from filing new civil actions in that court without paying fees unless he first received permission.
Disposition
The court dismissed the action as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i) and declined to grant leave to amend. It directed the clerk to mail Calvino a copy of the order and note service on the docket. The court certified under 28 U.S.C. § 1915(a)(3) that an appeal would not be taken in good faith and denied fee-waiver status for purposes of an appeal.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.