Calvino v. Sosa
- Colleen McMahon
- 1:19-cv-11607
- U.S. District Court · Southern District of New York
- 3
In Calvino v. Sosa, Judge McMahon dismissed the pro se action as frivolous.
The dismissal affected Ernest Calvino, Jr.; the defendants were Miguel Sosa, Hector Navaro, and Kerby Employ from Indian Orchard and Peers.
What happened
In Calvino v. Sosa, Ernest Calvino, Jr. alleged that unidentified people electronically spied on him, misled him, stole information, and threatened him. He sought money and the return of his property.
The court reviewed the complaint under the rules for lawsuits filed without paying fees. It found that the allegations were irrational and did not support any legal claim. The court also decided that changing the complaint would not fix its problems.
Judge McMahon dismissed the action as frivolous and did not allow an amended complaint. The court also denied fee-free status for any appeal because it certified that an appeal would not be taken in good faith.
The detailed version
- Calvino v. Sosa · No. 1:19-cv-11607
- Colleen McMahon
- Jan. 10, 2020
Background
Ernest Calvino, Jr. brought the action without a lawyer and invoked federal-question jurisdiction. The court had previously allowed him to proceed without prepaying filing fees. Calvino described the basis of his claims as “electronic spying, electronic misleading me and other, fraud, electronic theft, electronic [conspiracy] of exploitation and other.” He alleged that unidentified people electronically spied on him, were responsible for electronic theft and threats, stole information, and misled him. He said he suffered mental damage, emotional distress, and “los[s] of pace,” and sought money and the return of his assets.
Legal Standard
Under 28 U.S.C. § 1915(e)(2)(B), the court must dismiss a complaint filed without prepaying fees if it is frivolous, malicious, fails to state a claim for relief, or seeks money from an immune defendant. The court must also dismiss when it lacks subject-matter jurisdiction. Although the court must read a self-represented party’s allegations generously, a claim is frivolous when it has no arguable basis in law or fact, including when its factual allegations are irrational or wholly incredible.
Court’s Analysis and Ruling
The court concluded that, even when read with the special consideration given to self-represented pleadings, Calvino’s claims were irrational and rested on no legal theory. Although courts generally allow a self-represented plaintiff to amend a defective complaint, the court found that amendment would be futile because the defects could not be cured. Judge Colleen McMahon therefore declined to grant leave to amend and dismissed the action as frivolous under 28 U.S.C. § 1915(e)(2)(B).
The court also noted that Calvino had filed numerous actions in December 2019, some of which had already been dismissed as frivolous, and reiterated an earlier warning that further vexatious or frivolous litigation could lead to an order barring him from filing new civil actions without prepayment of fees unless he first received permission. The court certified under 28 U.S.C. § 1915(a)(3) that an appeal would not be taken in good faith and denied fee-free status for purposes of an appeal.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.