Calvino v. L.
- Colleen McMahon
- 1:19-cv-11958
- U.S. District Court · Southern District of New York
- 5
In Calvino v. L., Judge McMahon dismissed Ernest Calvino’s complaint filed without paying fees as frivolous and ordered him to explain why future fee-free filings should not be restricted.
Ernest Calvino, Jr. lost this action at the court’s filing-fee screening stage and was required to respond to a possible restriction on future fee-free filings. Fauto L. and Fauto Dobles were named defendants, but the court did not reach the merits of claims against them.
What happened
In Calvino v. L., Ernest Calvino, Jr. sued Fauto L. and Fauto Dobles. He alleged that the defendants claimed they could transfer assets, money, properties, and businesses, and he sought damages for harm to his personal image, emotional and mental harm, and lost money.
The court reviewed the complaint under the screening rules for cases filed without paying filing fees. It concluded that the claims were irrational and had no legal theory supporting them. Because the defects could not be fixed, the court dismissed the action as frivolous and did not allow amendment.
Judge Colleen McMahon also ordered Calvino to explain within 30 days why he should not be barred from filing future actions without paying fees in that court unless he first obtained permission. The court had not yet imposed that restriction, and it denied fee-free status for any appeal from the order.
The detailed version
- Calvino v. L. · No. 1:19-cv-11958
- Colleen McMahon
- Jan. 10, 2020
Background
Ernest Calvino, Jr. filed the action without paying the filing fee and represented himself. The complaint named Fauto L. and Fauto Dobles as defendants. Calvino alleged that the defendants claimed to help him and claimed they could transfer assets, money, properties, and businesses when they made contact. He sought damages for damage to his personal image, emotional damage, mental damage, and loss of money.
Screening and dismissal
Because Calvino filed without paying the filing fee, the court was required to dismiss the complaint if it was frivolous, malicious, failed to state a claim for relief, or sought money from an immune defendant. The court said that, even when the complaint was read liberally as required for a self-represented litigant, Calvino’s claims were irrational and had no legal theory supporting them. The court concluded that amendment would be futile, declined to give leave to amend, and dismissed the action as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i).
Order to show cause
The court stated that Calvino had filed more than two dozen cases within the preceding month and that many had already been dismissed as frivolous. The court had previously warned him that continued frivolous filings could lead to a restriction on filing new actions without paying fees unless he first obtained permission.
The court therefore ordered Calvino to submit, within 30 days, a written declaration explaining why it should not impose that restriction under 28 U.S.C. § 1651. The order stated that if he did not submit the declaration, or if it did not show good cause, he would be barred from filing further actions without paying fees in that court unless he first obtained permission. The order was a direction to respond, not an entry of the proposed restriction at that time.
Other disposition
The court directed the clerk to mail the order to Calvino and record service on the docket. Judge Colleen McMahon certified that an appeal would not be taken in good faith and denied fee-free status for purposes of an appeal.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.