     15-194
     Rishar v. United States


                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                             SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1         At a stated term of the United States Court of Appeals for the Second Circuit, held at
 2   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
 3   York, on the 2nd day of February, two thousand sixteen.
 4
 5   PRESENT:
 6              GUIDO CALABRESI,
 7              GERARD E. LYNCH,
 8              RAYMOND J. LOHIER, JR.,
 9                    Circuit Judges.
10   _____________________________________
11
12   JOHN ROBERT RISHAR,
13
14                             Plaintiff-Appellant,
15
16                      v.                                          No. 15-194
17
18   UNITED STATES OF AMERICA,
19
20                    Defendant-Appellee.
21   _____________________________________
22
23   FOR APPELLANT:                                          John Robert Rishar, Jr., pro se,
24                                                           St. Johnsbury, VT.
25
26   FOR APPELLEE:                                            No Appearance
27

28            Appeal from a judgment and order of the United States District Court for the

29   District of Vermont (Christina Reiss, C.J.).
 1          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

 2   AND DECREED that the judgment and order of the district court are AFFIRMED.

 3          Appellant John Rishar, proceeding pro se, appeals from the district court’s sua

 4   sponte dismissal of his action seeking a preliminary injunction against the United States

 5   and its denial of reconsideration of that decision. We assume the parties’ familiarity with

 6   the underlying facts, the procedural history of the case, and the issues on appeal.

 7          We review de novo a district court’s sua sponte dismissal of a complaint. Giano v.

 8   Goord, 250 F.3d 146, 149-50 (2d Cir. 2001). A complaint must allege “enough facts to

 9   state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.

10   544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content

11   that allows the court to draw the reasonable inference that the defendant is liable for the

12   misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). By contrast, a claim

13   “is frivolous when either: (1) the factual contentions are clearly baseless, such as when

14   allegations are the product of delusion or fantasy; or (2) the claim is based on an

15   indisputably meritless legal theory.” Livingston v. Adirondack Beverage Co., 141 F.3d

16   434, 437 (2d Cir. 1998) (internal quotation marks omitted).

17          Upon such review, we conclude, substantially for the reasons stated by the district

18   court, that Rishar’s complaint was frivolous. Livingston, 141 F.3d at 437. The district

19   court correctly found that, to the extent that Rishar’s claims were not barred by sovereign

20   immunity, even when read with the “special solicitude” due pro se pleadings, Triestman v.

21   Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation marks

22   omitted), Rishar’s allegations “rise to the level of irrational or wholly incredible, whether

                                                   2
1   or not there are judicially noticeable facts available to contradict them.” Denton v.

2   Hernandez, 504 U.S. 25, 33 (1992). Moreover, because there is no reason to think that a

3   valid claim might be stated, the district court’s denial without leave to amend was

4   appropriate. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).

5              We have considered Rishar’s remaining arguments and find them to be without

6   merit. Accordingly, we AFFIRM the judgment and order of the district court.

7                                             FOR THE COURT:
8                                             Catherine O’Hagan Wolfe, Clerk




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