Calvino v. Lipa

Background

Ernest Calvino Jr. brought the action without a lawyer against Fauto Lipa, Fauto Lipa, Son, Dual Lipa, and E TRADE. The court had granted his request to proceed without prepaying filing fees, a status commonly called in forma pauperis, or IFP.

Using the court's general complaint form, Calvino checked diversity of citizenship as the basis for federal jurisdiction. He listed alleged claims involving garnishment, scams, harassment, extortion, discrimination, theft, computer theft, and conspiracy. He stated that the events occurred in New York, nationally, and internationally.

Calvino alleged that the defendants monitored him with audio-spying equipment, threatened and misled him, stole private and personal information, and were connected to E TRADE. He also alleged that money estimated at approximately $7 million or $8 million had been sent to London and that an inspector in London was investigating. He described injuries including lost time, lost money, stress, mental and emotional harm, lost intellectual property, and fear. He sought the return or transfer of money, business property, assets, and money-related documents.

Screening standard

The court explained that it must dismiss an IFP complaint that is frivolous, malicious, fails to state a claim for relief, seeks money from an immune defendant, or falls outside the court's subject-matter jurisdiction. A claim is frivolous when it lacks a reasonable factual or legal basis. The court also stated that it must read a self-represented person's complaint generously and consider the strongest claims reasonably suggested by the allegations.

Ruling

Judge Colleen McMahon concluded that, even when read generously, Calvino's claims were irrational and had no legal theory supporting them. The court therefore dismissed the complaint as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i).

Although courts generally give self-represented plaintiffs an opportunity to amend defective complaints, the court found that amendment would be futile here. It therefore declined to grant leave to amend.

Litigation history

The opinion states that Calvino had filed 65 actions in the court between December 17, 2019, and January 16, 2020, and that more than 30 had been dismissed as frivolous. It also states that he had been warned that further vexatious or frivolous litigation could lead to an order barring him from filing new actions IFP without prior permission. In a prior related proceeding, he had been directed to show cause by declaration why such a filing restriction should not be imposed.

Disposition

The complaint was dismissed as frivolous. The court directed the Clerk to mail the order to Calvino and record service on the docket. The court 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.