Chavez v. Cause yall took my phones I dont know their names

Filing 4

ORDER OF DISMISSAL: Plaintiff's complaint is dismissed as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i). The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on the docket. (Signed by Judge Laura Taylor Swain on 11/16/2021) (sac) Transmission to Docket Assistant Clerk for processing.

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Case 1:21-cv-08526-LTS Document 4 Filed 11/16/21 Page 1 of 3 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK JUAN CARLOS CHAVEZ, Plaintiff, 21-CV-8526 (LTS) -againstCAUSE YALL TOOK MY PHONE I DON’T KNOW THEIR NAMES, ORDER OF DISMISSAL Defendants. LAURA TAYLOR SWAIN, Chief United States District Judge: Plaintiff filed this complaint pro se. By order dated October 20, 2021, the Court granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma pauperis (IFP). The Court dismisses the complaint for the reasons set forth below. STANDARD OF REVIEW The Court must dismiss a complaint, or portion thereof, that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b); see Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). A claim is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 324-25 (1989), abrogated on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); see also Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (holding that “finding of factual frivolousness is appropriate when the facts alleged rise to the Case 1:21-cv-08526-LTS Document 4 Filed 11/16/21 Page 2 of 3 level of the irrational or the wholly incredible”); Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (“[A]n action is ‘frivolous’ when either: (1) the factual contentions are clearly baseless . . . ; or (2) the claim is based on an indisputably meritless legal theory.”) (internal quotation marks and citation omitted). BACKGROUND Page one of Plaintiff’s complaint contains the following text: “bit.ly/the keeping.” (ECF 1 at 1.) Pages two and four consist of a drawing of what appears to be a guitar or violin. (Id. at 2 and 2-2.) Page three states, “It’s me, Juan here, w/ Ancona and his other one. I am sorry for the new complaint.” (Id. at 3.) The named defendants are “cause yall took my phone I don’t know their names.” (Id.) DISCUSSION Even when read with the “special solicitude” due pro se pleadings, Triestman, 470 F.3d at 474-75, Plaintiff’s claims rise to the level of the irrational, and there is no legal theory on which he can rely. See Denton, 504 U.S. at 33; Livingston, 141 F.3d at 437. The complaint does not contain a single fact suggesting that Plaintiff can state a viable claim that falls within the Court’s jurisdiction. District courts generally grant a pro se plaintiff an opportunity to amend a complaint to cure its defects, but leave to amend is not required where it would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Because the defects in Plaintiff’s complaint cannot be cured with an amendment, the Court declines to grant Plaintiff leave to amend. LITIGATION HISTORY AND WARNING Plaintiff has filed scores of cases in this and other Districts, both under his own name and under fictitious names, which have been dismissed for lack of merit or for failure to comply with 2 Case 1:21-cv-08526-LTS Document 4 Filed 11/16/21 Page 3 of 3 court orders. See, e.g., Natural-Unido v. Broad Corp. Does, ECF 1:21-CV-5586, 7 (S.D.N.Y. Nov. 3, 2021) (listing twenty cases). In light of Plaintiff’s litigation history, this Court finds that Plaintiff was or should have been aware when he filed this complaint that it lacked merit. See Sledge v. Kooi, 564 F.3d 105, 109-110 (2d Cir. 2009) (discussing circumstances where frequent pro se litigant may be charged with knowledge of particular legal requirements).” Plaintiff is warned that further duplicative or frivolous litigation in this Court will result in an order barring Plaintiff from filing new actions IFP without prior permission. See 28 U.S.C. § 1651. CONCLUSION Plaintiff’s complaint is dismissed as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i). The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on the docket. SO ORDERED. Dated: November 16, 2021 New York, New York /s/ Laura Taylor Swain LAURA TAYLOR SWAIN Chief United States District Judge 3

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