         14-532
         James v. Bush


                              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 “SUMMARY 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 the
 2       Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
 3       3rd day of September, two thousand fourteen.
 4
 5       PRESENT:
 6                   JOSÉ A. CABRANES,
 7                   DENNY CHIN,
 8                   RAYMOND J. LOHIER, JR.,
 9                         Circuit Judges.
10       _____________________________________
11
12       Andrew James,
13
14                             Plaintiff-Appellant,
15
16                       v.                                                  14-532
17
18       George W. Bush, Sr., Ex-United States of
19       America President,
20
21                             Defendant-Appellee.
22
23       _____________________________________
24
25
26       FOR PLAINTIFF-APPELLANT:                     Andrew James, pro se, Marcy, NY
27
28       FOR DEFENDANT-APPELLEE:                      Brenda K. Sannes, Assistant United States Attorney,
29                                                    for Richard S. Hartunian, United States Attorney,
30                                                    Northern District of New York, Syracuse, NY.
31
 1          Appeal from a judgment of the United States District Court for the Northern District of

 2   New York (Thomas J. McAvoy, Judge; Therese Wiley Dancks, Magistrate Judge).

 3

 4          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

 5   DECREED that the judgment of the District Court is AFFIRMED.

 6

 7          Appellant Andrew James, proceeding pro se, appeals from the District Court’s judgment,

 8   dated February 11, 2014, dismissing his action as barred by Heck v. Humphrey, 512 U.S. 477

 9   (1994). We assume the parties’ familiarity with the underlying facts, the procedural history of the

10   case, and the issues on appeal.

11          We review de novo a district court’s sua sponte dismissal of a complaint pursuant to 28

12   U.S.C. § 1915(e)(2). See Giano v. Goord, 250 F.3d 146, 149-50 (2d Cir. 2001). The complaint

13   must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp.

14   v. Twombly, 550 U.S. 544, 570 (2007). A claim has “facial plausibility when the plaintiff pleads

15   factual content that allows the court to draw the reasonable inference that the defendant is liable

16   for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 663, 678 (2009).

17          As an initial matter, James has waived review of all of his claims–except for his request

18   that exculpatory evidence be turned over–by failing to make any arguments on appeal. See Norton

19   v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in the briefs are

20   considered waived and normally will not be addressed on appeal.”). With respect to James’s sole

21   remaining argument–that Heck does not bar an injunction requiring that exculpatory evidence be

22   turned over–we have indeed held that such a request is not necessarily barred by Heck. See


                                                        2
 1   McKithen v. Brown, 481 F.3d 89, 102 (2d Cir. 2007) (“even if a plaintiff’s ultimate motive is to

 2   challenge his conviction—a post-conviction claim for access to evidence is cognizable under §

 3   1983.”). Nonetheless, we “may affirm on any basis for which there is sufficient support in the

 4   record, including grounds not relied on by the District Court.” Ferran v. Town of Nassau, 471

 5   F.3d 363, 365 (2d Cir. 2006). Here, James’s claim that a former President personally ordered the

 6   murder of an individual appears to be the product of delusion or fantasy. See Livingston v.

 7   Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (explaining that dismissal is proper

 8   where complaint’s factual allegations are the “product of delusion or fantasy”) (internal quotation

 9   marks omitted)). Moreover, James’s allegation that one of the former President’s aides showed

10   him an “official” document that allegedly contained the former President’s signature is based on

11   mere speculation that such documentation was authentic. See ATSI Commc'ns, Inc. v. Shaar Fund,

12   Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Twombly, 550 U.S. at 555) (To survive dismissal, a

13   plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient

14   “‘to raise a right to relief above the speculative level.’”). Finally, amendment would have been

15   futile given the implausible and speculative nature of James’s allegations. See Cuoco v.

16   Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).

17            We have considered James’s remaining arguments and find them to be without merit.

18   Accordingly, we AFFIRM the judgment of the district court.

19                                               FOR THE COURT:
20                                               Catherine O’Hagan Wolfe, Clerk
21
22




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