Calvino v. Figueroa
- Colleen McMahon
- 1:20-cv-00726
- U.S. District Court · Southern District of New York
- 2
In Calvino v. Figueroa, Judge McMahon dismissed the action without prejudice because Calvino did not obtain required permission to file it.
Ernest Calvino Jr., whose action was dismissed without prejudice and whose request to proceed without paying the filing fee on appeal was denied.
What happened
Calvino v. Figueroa involved Ernest Calvino Jr.’s request to proceed without paying the filing fee in a new case. The court had previously barred him from filing new cases without first getting permission.
Calvino filed this case without asking for that permission. He also did not respond to the court’s earlier order requiring him to explain why the filing restriction should not apply.
Judge Colleen McMahon dismissed the action without prejudice for violating the earlier order. She also ruled that Calvino could not proceed without paying the filing fee on an appeal because any appeal would not be taken in good faith.
The detailed version
- Calvino v. Figueroa · No. 1:20-cv-00726
- Colleen McMahon
- Feb. 13, 2020
Background
Ernest Calvino Jr. filed this pro se action on January 17, 2020, and sought permission to proceed without paying the filing fee. Before that filing, the court had ordered him to explain why he should not be barred from filing further actions in the court without first obtaining permission. Calvino did not submit the required declaration. On February 11, 2020, the court imposed that filing restriction, effective January 10, 2020.
Reason for Dismissal
The February 11 order required Calvino to obtain the court’s permission before filing a new action without paying the filing fee. He did not seek that permission before filing this case. The court therefore dismissed the action for failure to comply with the February 11 order.
Disposition
The court dismissed the action without prejudice under 28 U.S.C. § 1651. This means the dismissal itself did not bar refiling, although the existing requirement to obtain court permission remained relevant to filing a new action without paying the filing fee. Chief Judge Colleen McMahon also certified that an appeal would not be taken in good faith and denied permission to proceed without paying the filing fee for purposes of an appeal. The Clerk was directed to mail the order to Calvino and record service on the docket.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.