Calvino v. Rivera
- Colleen McMahon
- 1:20-cv-00382
- U.S. District Court · Southern District of New York
- 3
In Calvino v. Rivera, Judge McMahon dismissed Calvino’s IFP action as frivolous and denied IFP status for any appeal.
Ernest Calvino Jr.’s action against William Rivera was dismissed as frivolous; Calvino was also denied fee-free status for an appeal.
What happened
In Calvino v. Rivera, Ernest Calvino Jr. sued William Rivera without a lawyer and said the case was based on federal diversity jurisdiction. The court had allowed Calvino to proceed without paying filing fees.
Calvino alleged that Rivera had taken or was supposed to protect and return his property, businesses, assets, titles, documents, and money. The court found that the allegations were irrational and that no legal theory supported the claims. It also found that the problems could not be fixed by amending the complaint.
Judge Colleen McMahon dismissed the action as frivolous and did not allow Calvino to amend. The court also certified that an appeal would not be taken in good faith and denied fee-free status for an appeal.
The detailed version
- Calvino v. Rivera · No. 1:20-cv-00382
- Colleen McMahon
- Jan. 24, 2020
Background
Ernest Calvino Jr. brought the action without a lawyer and asserted that the court had diversity jurisdiction. The court had previously granted his request to proceed without prepaying filing fees, known as in forma pauperis status.
Calvino identified the federal constitutional or statutory basis of his action as “scam, misleading, lack to transfer asset, lack to transfer money, property.” He alleged that William Rivera had said he was supporting or helping Calvino by collecting or protecting property, businesses, assets, and money from alleged computer hackers, spies, and scammers. Calvino alleged that Rivera had not returned or transferred those items and sought their return, along with explanations and information. He also alleged mental and emotional harm, lost time, lost money, and disrespect.
Court’s Analysis
Under 28 U.S.C. § 1915(e)(2)(B), the court must dismiss a complaint filed without prepaying fees if it is frivolous, malicious, fails to state a claim, or seeks money from an immune defendant. The court must also dismiss when it lacks subject-matter jurisdiction. Although courts must read complaints filed without lawyers generously, a claim is frivolous when it has no arguable legal or factual basis, including when its factual allegations are irrational or wholly incredible.
The court concluded that, even when read with the special consideration given to self-represented pleadings, Calvino’s claims were irrational and had no supporting legal theory. The court stated that amendment would be futile because the defects could not be cured. The opinion also noted that Calvino had filed numerous frivolous actions and had previously been warned that further frivolous or abusive litigation could lead to restrictions on filing future civil actions without the court’s permission.
Disposition
Judge Colleen McMahon dismissed the action as frivolous under 28 U.S.C. § 1915(e)(2)(B) and declined to grant leave to amend. The court certified under 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith, so Calvino was denied permission to proceed without prepaying fees for an appeal. The Clerk was directed to mail 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.