Calvino v. Giullianie
- Colleen McMahon
- 1:20-cv-00520
- U.S. District Court · Southern District of New York
- 3
In Calvino v. Giullianie, Judge McMahon dismissed the frivolous complaint and denied fee-free status for any appeal.
Ernest Calvino Jr.'s action was dismissed as frivolous, and his request to proceed without prepaying fees for an appeal was denied. Giullianie was the defendant in the dismissed action.
What happened
In Ernest Calvino Jr. v. Giullianie, the plaintiff, representing himself, claimed that the defendant conspired to harm him and failed to return or transfer property, assets, money, and other belongings. He sought the return of property and monetary damages.
The court concluded that the allegations were irrational and had no legal theory supporting them. It dismissed the action as frivolous and did not allow the plaintiff to amend because amendment would be futile.
Judge McMahon also certified that an appeal would not be taken in good faith and denied the plaintiff permission to proceed without paying fees for an appeal.
The detailed version
- Calvino v. Giullianie · No. 1:20-cv-00520
- Colleen McMahon
- Jan. 22, 2020
Background
Ernest Calvino Jr. filed the action without a lawyer and invoked the court's diversity jurisdiction. The court had previously granted his request to proceed without prepaying filing fees. He alleged that Giullianie conspired to torture, exploit, harass, and scam him, steal his computer, obstruct his legal rights, and fail to deliver, transfer, or return property, assets, business interests, money, and other belongings. He sought the return of property and monetary damages.
The court stated that Calvino had filed numerous frivolous actions in the district since December 17, 2019, and had previously been warned that further vexatious or frivolous litigation could lead to restrictions on filing new actions without preapproval. The court also had directed him in a prior related proceeding to explain why he should not be barred from filing further actions without permission.
Legal Standard
Under 28 U.S.C. § 1915(e)(2)(B), the court must dismiss a complaint filed by a person proceeding without prepaying fees if it is frivolous or malicious, fails to state a claim for relief, or seeks money from a defendant who is immune from that relief. The court must also dismiss a case when it lacks subject-matter jurisdiction. Although filings by people without lawyers are read generously, a claim is frivolous when it has no arguable basis in law or fact, including when its factual allegations are irrational or its legal theory is indisputably meritless.
Ruling
The court held that, even when read with the special consideration given to filings by people without lawyers, Calvino's claims were irrational and lacked any supporting legal theory. It further held that the action continued his pattern of frivolous and vexatious litigation. Because the defects could not be cured by amendment, the court declined to give him permission to amend.
The court dismissed the action as frivolous under 28 U.S.C. § 1915(e)(2)(B). It also certified under 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and denied permission to proceed without prepaying fees for an appeal. The order directed the Clerk of Court to mail a copy of 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.