Calvino v. Kremsha
- Colleen McMahon
- 1:20-cv-00376
- U.S. District Court · Southern District of New York
- 3
In Calvino v. Kremsha, Judge McMahon dismissed the pro se complaint as frivolous and denied fee-free status for any appeal.
Ernest Calvino, Jr., whose complaint was dismissed and who was denied permission to appeal without paying the required filing fee; Kremsha was the named defendant.
What happened
In Calvino v. Kremsha, Ernest Calvino, Jr., filing without a lawyer, sued Kremsha under the court’s diversity jurisdiction. He alleged an extortion conspiracy and sought money, justice, businesses, assets, and a transfer of certified documents.
The court found that the allegations were irrational and did not support any legal theory, even when read generously because Calvino was representing himself. It concluded that amending the complaint would be futile, so it did not give him permission to amend.
Judge Colleen McMahon dismissed the complaint as frivolous under the federal filing-fee statute. The court also ruled that any appeal would not be taken in good faith and denied Calvino permission to appeal without paying the required fees.
The detailed version
- Calvino v. Kremsha · No. 1:20-cv-00376
- Colleen McMahon
- Jan. 17, 2020
Background
Ernest Calvino, Jr. brought the action without a lawyer and invoked the court’s diversity jurisdiction. The court had previously allowed him to proceed without paying the filing fee at the outset. The defendant is identified in the caption as KREMSHA, although the opinion refers to the defendant once as “Kemsha.”
Calvino alleged that someone was “arrested because a conspiracy of extortion by Robert Pre[c]in[c]t 46 Bronx NY.” In response to the complaint form’s request for facts supporting his claims, he wrote only that there was a “co-conspired of extortion co-conspired of explo[i]tation etc.” He stated that he suffered mental and emotional damage, lost time, and lost money. He requested money, justice, businesses, assets returned, and delivery of certified documents to his name.
The court also noted that Calvino had filed at least 30 actions during the preceding month, many of which had been dismissed as frivolous. In a prior related proceeding, the court had directed him to explain why he should not be barred from filing new actions without paying the filing fee unless he first obtained court permission.
Legal standard
Under 28 U.S.C. § 1915(e)(2)(B), the court must dismiss a complaint filed without prepayment of fees if it is frivolous or malicious, fails to state a claim for relief, or seeks money from a defendant who is legally immune from such relief. A frivolous claim lacks an arguable basis in law or fact. The court must read a complaint filed by a person without a lawyer liberally and interpret it to raise the strongest claims suggested by the allegations.
Court’s analysis
The court held that Calvino’s claims were irrational and had no legal theory supporting them, even after applying the more generous reading required for filings by people without lawyers. The court explained that a plaintiff is generally given an opportunity to amend a defective complaint, but amendment is not required when it would be futile. Because the defects could not be cured by amendment, the court declined to allow Calvino to amend.
Disposition
The court dismissed the complaint as frivolous under 28 U.S.C. § 1915(e)(2)(B). It also certified under 28 U.S.C. § 1915(a)(3) that an appeal would not be taken in good faith and denied Calvino permission to proceed without paying the filing fee for an appeal. The clerk was directed to mail the order to Calvino and record service on the docket.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.