Calvino v. Attorney Office Pellegrino
- Colleen McMahon
- 1:20-cv-00656
- U.S. District Court · Southern District of New York
- 3
In Calvino v. Attorney Office Pellegrino, Judge McMahon dismissed Calvino’s complaint as frivolous and denied fee-free status for an appeal.
Ernest Calvino Jr.’s complaint was dismissed, and he was denied permission to appeal without prepaying the filing fee; Attorney Office Pellegrino was the named defendant.
What happened
In Ernest Calvino Jr. v. Attorney Office Pellegrino, Calvino, who was representing himself, said an attorney in Massachusetts reacted badly when he mentioned intellectual property, stopped him from explaining, and had him escorted from the building. He also said he heard that a female friend was sending money to the law firm.
The court reviewed the complaint under rules requiring dismissal of certain claims filed without paying the filing fee. It found the claims irrational and unsupported by any legal theory. The court also found that amending the complaint would be futile, so it did not allow Calvino to amend it.
Judge Colleen McMahon dismissed the action as frivolous. She also certified that an appeal would not be taken in good faith and denied Calvino permission to appeal without prepaying the filing fee.
The detailed version
- Calvino v. Attorney Office Pellegrino · No. 1:20-cv-00656
- Colleen McMahon
- Jan. 24, 2020
Background
Ernest Calvino Jr. filed the action without a lawyer and asked to proceed without prepaying court fees. The court granted that request on January 24, 2020. Calvino alleged that he sought help from an attorney in Massachusetts and planned to pay if the attorney agreed to take the case. According to the complaint, the attorney overreacted when Calvino mentioned “intellectual property,” did not let him finish explaining, and had him escorted from the building in a disrespectful way. Calvino also alleged that he heard from a third party that a female friend was sending money to the law firm for services.
Screening and Analysis
The court applied the screening requirements for complaints filed without prepaying fees. Those requirements require dismissal of a complaint that is frivolous, malicious, fails to state a legally valid claim, or seeks money from a defendant protected from such relief. A frivolous claim is one with no reasonable basis in law or fact.
Even after reading Calvino’s allegations generously because he was representing himself, the court concluded that his claims were irrational and that he had no legal theory supporting them. The court stated that an opportunity to amend is unnecessary when amendment would be futile. It therefore declined to allow an amended complaint. The court also noted that Calvino had filed dozens of actions without prepaying fees in recent months and had been directed in a prior related proceeding, No. 1:19-CV-11958 (S.D.N.Y. Jan. 10, 2020), to explain why he should not be barred from filing new actions without prepaying fees unless he first obtained court permission.
Ruling
Judge Colleen McMahon dismissed the action as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i). The clerk was directed to mail Calvino a copy of the order and record service on the docket. The court also certified under 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and denied permission to pursue an appeal without prepaying the filing fee. The opinion does not state that the dismissal was with or without prejudice.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.