Rishar v. United States

Second Circuit

Rishar v. United States

632 F. App'x 50

CourtCourt of Appeals for the Second Circuit

DecidedFebruary 2, 2016

Docket15-194

StatusUnpublished

Cited by1 cases

This text of 632 F. App'x 50 (Rishar v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Rishar v. United States, 632 F. App'x 50 (2d Cir. 2016).

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Opinion

SUMMARY ORDER

Appellant John Rishar, proceeding pro se, appeals from the district court’s sua sponte dismissal of his action seeking a preliminary injunction against the United States and its denial of reconsideration of that decision. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

We review de novo a district court’s sua sponte dismissal of a complaint. Giano v. Goord, 250 F.3d 146, 149-50 (2d Cir.2001). A complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). By contrast, a claim “is frivolous when either: (1) the factual contentions are clearly baseless, such as when allegations are the product of delusion or fantasy; ‘ or (2) the claim is based on an indisputably meritless legal theory.” Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir.1998) (internal quotation marks omitted).

Upon such review, we conclude, substantially for the reasons stated by the district court, that Rishar’s complaint was frivolous. Livingston, 141 F.3d at 437. The district court correctly found that, to the extent that Rishar’s claims were not barred by sovereign immunity, even when read with the “special solicitude” due pro se pleadings, Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir.2006) (internal quotation marks omitted), Rishar’s allegations “rise to the level of irrational or wholly incredible, whether or not there are judicially noticeable facts available to contradict them.” Denton v. Hernandez, 504 U.S. 25, 33, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992). Moreover, because there is no reason to think that a valid claim might be stated, the district court’s denial without leave to amend was appropriate. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000).

We have considered Rishar’s remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment and order of the district court.

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SUMMARY ORDER

Appellant John Rishar, proceeding pro se, appeals from the district court’s sua sponte dismissal of his action seeking a preliminary injunction against the United States and its denial of reconsideration of that decision. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

We review de novo a district court’s sua sponte dismissal of a complaint. Giano v. Goord, 250 F.3d 146, 149-50 (2d Cir.2001). A complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). By contrast, a claim “is frivolous when either: (1) the factual contentions are clearly baseless, such as when allegations are the product of delusion or fantasy; ‘ or (2) the claim is based on an indisputably meritless legal theory.” Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir.1998) (internal quotation marks omitted).

Upon such review, we conclude, substantially for the reasons stated by the district court, that Rishar’s complaint was frivolous. Livingston, 141 F.3d at 437. The district court correctly found that, to the extent that Rishar’s claims were not barred by sovereign immunity, even when read with the “special solicitude” due pro se pleadings, Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir.2006) (internal quotation marks omitted), Rishar’s allegations “rise to the level of irrational or wholly incredible, whether or not there are judicially noticeable facts available to contradict them.” Denton v. Hernandez, 504 U.S. 25, 33, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992). Moreover, because there is no reason to think that a valid claim might be stated, the district court’s denial without leave to amend was appropriate. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000).

We have considered Rishar’s remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment and order of the district court.

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