Calvino v. New York City Police

Background

Ernest Calvino, Jr. brought the action against New York City Police and Robert C., whom the caption identifies as an undercover agent of the New York Police Department. The opinion states that Calvino was proceeding without a lawyer. The court had previously allowed him to proceed without prepaying filing fees, a status commonly called proceeding in forma pauperis (IFP).

Calvino alleged that the New York Police Department was investigating him and that, while he was under surveillance, he was extorted, assaulted, intimidated, bullied, spied on, harassed, and defamed. He also alleged that he was taken from the place where he was staying and returned with an electronic device that monitored his thoughts. He described the alleged conduct as including conspiracies involving spying, exploitation, failure to protect him, false imprisonment, fraud, computer theft, and harassment. His requested relief included money, a refund of information, investigation information, and information about undercover agents.

Legal standard

Under 28 U.S.C. § 1915(e)(2)(B), a court must dismiss an IFP complaint that is frivolous, malicious, fails to state a legally valid claim, or seeks money from a defendant protected from that relief. The court must also dismiss when it lacks authority to hear the case. The court explained that it must read a self-represented litigant’s pleadings generously, but a claim is frivolous when it has no arguable basis in law or fact. The court cited the standard that factual allegations may be frivolous when they are irrational or wholly incredible.

Court’s analysis

The court concluded that, even when read with the special consideration given to self-represented pleadings, Calvino’s claims were irrational and had no legal theory on which he could rely. The court also noted that Calvino had filed numerous actions in the Southern District of New York beginning in December 2019, including actions that had 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.

Although courts generally give a self-represented plaintiff an opportunity to amend a defective complaint, the court stated that amendment is unnecessary when it would be futile. It concluded that the defects in Calvino’s complaint could not be cured by amendment and, considering his litigation history, declined to grant leave to amend.

Disposition

The court dismissed the action as frivolous under 28 U.S.C. § 1915(e)(2)(B). It directed the clerk to mail Calvino a copy of the order and record service on the docket. The court also certified under 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and denied IFP status for purposes of an appeal.