Calvino v. Barn
- Colleen McMahon
- 1:20-cv-00157
- U.S. District Court · Southern District of New York
- 3
In Calvino v. Barn, Judge McMahon dismissed the pro se complaint as frivolous and denied fee-free appeal status.
Ernest Calvino, Jr.’s complaint was dismissed as frivolous, and he was denied permission to appeal without prepaying fees. William E. Barn was the defendant named in the dismissed action.
What happened
Ernest Calvino, Jr. sued William E. Barn, whom he identified as an attorney, and asked Barn to represent him in various legal matters. Calvino invoked diversity jurisdiction and sought legal services and compensation for lost time.
Judge McMahon reviewed the complaint under the screening rules for people allowed to proceed without paying filing fees. She concluded that Calvino’s claims were irrational and had no legal basis.
Judge McMahon dismissed the action as frivolous, declined to allow an amended complaint, and denied fee-free status for any appeal. The court also repeated its warning that future frivolous or abusive filings could lead to limits on Calvino’s ability to file without paying fees.
The detailed version
- Calvino v. Barn · No. 1:20-cv-00157
- Colleen McMahon
- Jan. 10, 2020
Background
Ernest Calvino, Jr. brought the action without a lawyer and invoked the court’s diversity jurisdiction. He sued William E. Barn, whom he identified as an attorney. Calvino alleged that Barn knew him, his properties, businesses, and related matters, and asked Barn to represent him in civil, criminal, federal, and international cases. Calvino sought Barn’s legal services and damages for “loss of time.”
The court had previously allowed Calvino to proceed without paying filing fees. Because he was proceeding without prepaying fees, the court screened the complaint under 28 U.S.C. § 1915(e)(2)(B). That law requires dismissal of a complaint that is frivolous, fails to state a claim, or seeks money from a defendant who is immune from such relief. A frivolous claim is one with no reasonable legal or factual basis.
Court’s Analysis
The court stated that it had read the pro se complaint generously, as required for complaints filed without a lawyer. Even under that approach, however, the court concluded that Calvino’s claims were irrational and had no legal theory supporting them. The court also explained that an opportunity to amend is not required when amendment would be futile, meaning it could not fix the complaint’s defects. The court determined that amendment would be futile.
The opinion noted that Calvino had filed more than a dozen actions during the preceding month and that many had already been dismissed as frivolous. The court referred to a prior related proceeding without reproducing that proceeding’s caption. It repeated an earlier warning that further vexatious or frivolous litigation could result in an order barring Calvino from filing new actions without prepaying fees unless he first received permission.
Disposition
The court dismissed Calvino’s complaint as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i) and declined to grant leave to amend. The court directed the Clerk to mail the order to Calvino and record service on the docket. It also certified that an appeal would not be taken in good faith and denied Calvino permission to proceed without prepaying fees for an appeal. Judge Colleen McMahon signed the order.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.