Calvino v. O'Conell
- Colleen McMahon
- 1:19-cv-11828
- U.S. District Court · Southern District of New York
- 3
In Calvino v. O'Conell, Chief Judge McMahon dismissed Ernest Calvino Jr.’s pro se action as frivolous and denied fee-free appeal status.
Ernest Calvino Jr.; the action was dismissed, and he was denied permission to appeal without prepaying fees.
What happened
In Calvino v. O'Conell, Ernest Calvino Jr. sued over allegations involving electronic communications, support for his business and legal problems, and a request to transfer assets. He claimed damage to his personal image, lost wages, and emotional distress, and sought money, asset transfers, and justice.
The court reviewed the complaint under the rules governing lawsuits filed without paying fees. It concluded that the allegations were irrational and did not support any legal claim, even when read generously because Calvino was representing himself.
Chief Judge Colleen McMahon dismissed the action as frivolous, declined to allow an amended complaint, and certified that an appeal would not be taken in good faith. The court therefore denied fee-free status for any appeal.
The detailed version
- Calvino v. O'Conell · No. 1:19-cv-11828
- Colleen McMahon
- Jan. 24, 2020
Background
Ernest Calvino Jr. filed the action without a lawyer and asserted that the court had federal-question jurisdiction. The court had previously allowed him to proceed without prepaying filing fees. His stated federal constitutional or statutory basis was “lack to transfer asset, lack of support, misleading.”
Calvino alleged that a woman communicated with him electronically, said that she liked him, and said she would help him with Bloomingdale, his fashion business, and his civil and other legal problems. He alleged harm to his personal image, lost wages, and emotional distress because she was lying to him. He requested money, transfer of assets, and justice.
Court’s analysis
The court explained that it must dismiss a complaint filed without prepaying fees if it is frivolous, fails to state a claim, seeks money from an immune defendant, or falls outside the court’s subject-matter jurisdiction. A claim is frivolous when it lacks an arguable legal or factual basis, including when its factual allegations are irrational or wholly incredible or when it relies on an indisputably meritless legal theory.
The court gave Calvino’s allegations the liberal reading required for a person representing himself. Even with that favorable reading, however, the court found that his claims were irrational and that no legal theory supported them. The court also concluded that the defects could not be fixed by amending the complaint, so it declined to give him permission to amend.
Ruling
Chief United States District Judge Colleen McMahon dismissed the action as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i). The court certified under 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and denied Calvino permission to proceed without prepaying fees for an appeal. The opinion also noted that Calvino had previously been warned that further frivolous or vexatious litigation could lead to restrictions on filing new civil actions without the court’s permission.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.