Miller v. Silverstein, 122 F.3d 1056 (table), 1997 WL 557620 (2d Cir. Sept. 9, 1997.)

NOTICE: THIS IS AN UNPUBLISHED OPINION. (The Court's decision is referenced in a "Table of Decisions Without Reported Opinions" appearing in the Federal Reporter. See FI CTA2 § 0.23 for rules regarding the publication and citation of unpublished opinions.)

Larry SILVERSTEIN, et al., Defendants-Appellees.

No. 96-6303.

United States Court of Appeals, Second Circuit.

Sept. 9, 1997.

Appeal from the United States District Court for the Eastern District of New York. This cause came on to be heard on the transcript of record from the United States District Court for the Eastern District of New York (Amon, J.), and was submitted.

Harry P. Miller, pro se, Forest Hills, New York.

APPEARING FOR APPELLEES Richard M. Nixon, John W. Vessey, Colin L. Powell and William J. Clinton: Zachary W. Carter, United States Attorney for the Eastern District of New York, Brooklyn, New York.

APPEARING FOR APPELLEE New York City: Elizabeth I. Freedman, Assistant Corporation Counsel of the City of New York, New York, New York.

APPEARING FOR APPELLEE H. Ross Perot: Loretta M. Gastwirth, Meltzer, Lippe, Goldstein, Wolf & Schlissel, P.C., Mineola, New York.

APPEARING FOR APPELLEE WNBC TV Channel 4: Lynn B. Oberlander, NBC Legal Department, New York, New York.

APPEARING FOR APPELLEE Larry Silverstein: Larry Mandel, Dinkes and Morelli, New York, New York.

Before: MESKILL, JACOBS, C.J., KORMAN, [FN*] D.J.

SUMMARY ORDER

**1 THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.

    At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 9th day of September, one thousand nine hundred and ninety-seven.

    ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of said District Court be and it hereby is affirmed.

    In July 1993, Miller, a Vietnam veteran, filed an amended complaint [FN1] in district court against Larry Silverstein, the alleged owner of "Runway 69," a Queens dance club, WNBC-TV Channel 4 television station ("WNBC"), the City of New York ("NYC"), President Clinton, former President Richard Nixon, H. Ross Perot, John W. Vessey and Colin Powell. Although difficult to decipher, the gravamen of Miller's complaint is that the named defendants committed or aided others in committing illegal acts, including assassinations, over a twenty-five year period, beginning amidst the Vietnam War, in furtherance of a conspiracy to distribute Laotian heroin. He asserted that the defendants are still engaged in heroin trafficking today and that "Goldfingers International," a business that supplies nude dancers to nude dance clubs, is laundering the proceeds of the conspiracy through "Runway 69." Miller alleged that the proceeds are used for such purposes as covering up the "Watergate scandal" and buying the "cooperation" of the NYC Police Department.

FN1. In April 1993, Miller commenced his action in state court. The action was subsequently removed to the district court and in July 1993, Miller filed an amended complaint, which incorporates his first complaint.

    Based on his allegations, Miller asked for $49 million in damages as well as a myriad of court orders, such as one providing that "no President or officer of the United States of America has ever been authorized to order the death of any person without due process of war or law" and that "no executive order of the President can provide due process for assassinations."

    In January 1994, all of the defendants moved to dismiss Miller's complaint. In a 28-page order, the court granted each of the defendants' motions and dismissed all of Miller's claims pursuant to Fed.R.Civ.P. 12(b)(6). Miller appeals.

    This Court has the "inherent authority, wholly aside from any statutory warrant, to dismiss an appeal ... as frivolous when the appeal ... presents no arguably meritorious issue for [its] consideration." Pillay v. INS, 45 F.3d 14, 17 (2d Cir.1995). A case is deemed frivolous if it is "based on an indisputably meritless legal theory," or presents "clearly baseless" factual contentions. Neitzke v. Williams, 490 U.S. 319, 327 (1989). A finding of factual frivolousness is appropriate when the facts alleged "rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them." Denton v. Hernandez, 504 U.S. 25, 26 (1992); see Neitzke, 490 U.S. at 328 (factual frivolous allegations include "claims describing fantastic or delusional scenarios"). [FN2]

FN2. This Court is free to affirm the district court on grounds not relied upon by district court. Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir.1987). A district court's dismissal of a claim under Rule 12(b)(6) is reviewed de novo. See Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir.1996).

**2
Because Miller's appeal is frivolous, we affirm the decision of the district court.

For the reasons set forth above, the judgment of the district court is hereby AFFIRMED.

FN* Hon. Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation.

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