Calvino v. F.B.I.
- Colleen McMahon
- 1:20-cv-00239
- U.S. District Court · Southern District of New York
- 4
In Calvino v. F.B.I., Judge McMahon dismissed Ernest Calvino Jr.’s complaint as frivolous and denied fee-free appeal status.
Ernest Calvino Jr.’s complaint was dismissed; the Federal Bureau of Investigation and Kavanash were the named defendants. The order also affected Calvino’s ability to appeal without paying fees and warned of a possible future restriction on fee-free filings.
What happened
In Calvino v. F.B.I., Ernest Calvino Jr. alleged that the Federal Bureau of Investigation and an undercover agent investigated, monitored, harassed, discriminated against, and defamed him without probable cause. He also alleged electronic spying, computer theft, extortion, and other conduct.
The court dismissed the complaint as frivolous under the statute governing complaints filed without paying filing fees. It found that the allegations were irrational and had no legal theory supporting them. The court declined to allow an amended complaint because amendment would be futile. It also warned that further frivolous or vexatious lawsuits could lead to a filing restriction, and denied fee-free status for any appeal.
Chief Judge Colleen McMahon issued the order on January 13, 2020. The order did not impose the warned-about filing restriction in this case; it stated that such a restriction could result from further litigation.
The detailed version
- Calvino v. F.B.I. · No. 1:20-cv-00239
- Colleen McMahon
- Jan. 13, 2020
Background
Ernest Calvino Jr. sued the Federal Bureau of Investigation and Kavanash, identified in the caption as an undercover agent. He filed the complaint without paying the filing fee. The complaint alleged, among other things, electronic spying, discrimination, harassment, extortion, computer theft, investigation without probable cause, hidden audio and video monitoring, defamation, arrest, and other events occurring in New York, New Jersey, and Massachusetts.
Calvino had previously filed numerous actions in the same court. The opinion states that he filed 45 actions between December 17, 2019, and January 9, 2020, and that 17 had been dismissed as frivolous. The court had also directed him in another case to explain why he should not be barred from filing additional actions without paying fees unless he first received court permission.
Legal standard
When a person is allowed to proceed without paying filing fees, the court must dismiss the complaint, or part of it, if it is frivolous, malicious, fails to state a claim for relief, or seeks money from a defendant protected from that type of lawsuit. The court must also dismiss a case if it lacks authority to hear the subject. Although courts read complaints filed without a lawyer generously, the complaint must still have an arguable basis in fact or law. A claim is frivolous when its factual allegations are clearly baseless or when it relies on a legal theory that cannot support relief.
Court’s analysis and ruling
The court concluded that, even when read generously, Calvino’s allegations were irrational and that no legal theory supported them. It therefore dismissed the action as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i). The court declined to give Calvino permission to amend because it determined that the defects could not be fixed through an amended complaint.
The court warned that further vexatious or frivolous litigation could result in an order under 28 U.S.C. § 1651 barring Calvino from filing new actions without paying fees unless he first obtained permission. The order did not state that this filing restriction was imposed in this case. The court also certified that an appeal would not be taken in good faith and denied fee-free status for an appeal.
Disposition
The complaint was dismissed as frivolous. Leave to amend was not granted. The order also denied permission to appeal without paying fees and continued the warning about a possible future filing restriction.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.