Calvino v. Cevalloz
- Colleen McMahon
- 1:20-cv-00135
- U.S. District Court · Southern District of New York
- 4
In Calvino v. Cevalloz, Judge McMahon dismissed Ernest Calvino Jr.’s complaint as frivolous and denied fee-free appeal status.
Ernest Calvino, Jr.’s action against Ruben Cevalloz, Ruben Cevalloz, Jr., Joseph Cevalloz, and Vilma C. was dismissed as frivolous; Calvino was also denied permission to appeal without prepaying fees.
What happened
In Calvino v. Cevalloz, Ernest Calvino Jr. sued Ruben Cevalloz, Ruben Cevalloz Jr., Joseph Cevalloz, and Vilma C. He alleged that the defendants hid or interfered with business records, mortgage records, money, and other assets, and failed to provide contact or legal support.
The court reviewed the complaint under the law requiring dismissal of a fee-free complaint that is frivolous, legally unsupported, or seeks relief from an immune defendant. It concluded that Calvino’s allegations were irrational and that no legal theory supported his claims. The court also found that amending the complaint would be futile.
Judge Colleen McMahon dismissed the action as frivolous, without granting permission to amend. She also certified that an appeal would not be taken in good faith and denied Calvino permission to appeal without prepaying fees.
The detailed version
- Calvino v. Cevalloz · No. 1:20-cv-00135
- Colleen McMahon
- Jan. 23, 2020
Background
Ernest Calvino, Jr. brought this action without a lawyer against Ruben Cevalloz, Ruben Cevalloz, Jr., Joseph Cevalloz, and Vilma C. The court had previously allowed him to proceed without prepaying filing fees. Calvino alleged that the defendants were related to him, had destroyed him with misleading comments, and had caused him to spend substantial time trying to locate business transaction records, mortgage transaction records, money, and other assets. He also alleged that the defendants hid those assets, avoided contacting him to transfer them, and intentionally neglected him when he needed his property and legal support.
Screening standard
Because Calvino was proceeding without prepaying fees, the court screened the complaint under 28 U.S.C. § 1915(e)(2)(B). That statute requires dismissal of a complaint that is frivolous, malicious, fails to state a claim for relief, or seeks money from a defendant who is legally immune from that relief. The court also noted that it must dismiss a complaint when it lacks authority to hear the dispute. Although courts must read complaints filed by people without lawyers generously, those complaints still must have an arguable factual and legal basis.
Court’s analysis
The court held that, even when read generously, Calvino’s allegations were irrational and did not support any legal theory. It therefore concluded that the complaint was frivolous. Although courts generally give a self-represented plaintiff an opportunity to amend a defective complaint, the court found that amendment would be futile and declined to grant leave to amend.
The opinion also stated that Calvino had filed 45 actions in the court between December 17, 2019, and January 9, 2020, and that 17 had been dismissed as frivolous. It described prior warnings that further vexatious or frivolous litigation could lead to an order barring him from filing new actions without preapproval while seeking to proceed without prepaying fees. The opinion stated that, in another order, Calvino had been directed to explain why such a filing restriction should not be imposed.
Disposition
Judge Colleen McMahon dismissed the action as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i). The court also certified under 28 U.S.C. § 1915(a)(3) that an appeal would not be taken in good faith and denied permission to appeal without prepaying fees. The clerk was directed to mail the order to Calvino and record service on the docket.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.