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Abigail Storm-Eggink v. Richard Gottfried

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT


February 2, 2011

ABIGAIL STORM-EGGINK, PLAINTIFF-APPELLANT,
v.
RICHARD GOTTFRIED, SHELDON SILVER, THOMAS DUANE, DEFENDANTS-APPELLEES.

Appeal from a judgment of the United States District Court for the Northern District of New York (Sharpe, J.).

10-823-cv

Storm-Eggink v. Gottfried

SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY RDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUM M ARY ORDER IN A DOCUM ENT FILED WITH THIS COURT, A PARTY M UST CITE EITHER THE FEDERAL PPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUM M ARY ORDER"). A PARTY ING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 2nd day of February, two thousand eleven.

PRESENT: RALPH K. WINTER, ROBERT D. SACK, DEBRA ANN LIVINGSTON, Circuit Judges.

UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, and DECREED that the judgment of the district court be AFFIRMED.

Plaintiff-Appellant Abigail Storm-Eggink, proceeding pro se, appeals from the district court's judgment dismissing her complaint sua sponte. We assume the parties' familiarity with the underlying facts, procedural history of the case, and issues on appeal.

Although the district court did not specify the basis for its decision dismissing Storm-Eggink's complaint, "we may affirm on any basis for which there is sufficient support in the record, including grounds not relied on by the District Court." Ferran v. Town of Nassau, 471 F.3d 363, 365 (2d Cir. 2006) (per curiam). A district court has the inherent authority to dismiss an action as frivolous, regardless of whether the plaintiff has been granted leave to proceed in forma pauperis. See Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 363-64 (2d Cir. 2000). An action is frivolous "where it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989), abrogated on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). While we have not yet decided whether review of sua sponte dismissals is de novo or for an abuse of discretion, we conclude that the district court's decision "easily passes muster under the more rigorous de novo review." Fitzgerald, 221 F.3d at 364 n.2.

After reviewing the record, we find that Eggink's action lacks an arguable legal basis and is thus frivolous. With respect to Storm-Eggink's claim pursuant to 42 U.S.C. § 1983, it is clear that her arrest for possession of marijuana did not deprive her of a constitutional right. See United States v. Kiffer, 477 F.2d 349, 352 (2d Cir. 1973); see also United States v. Fry, 787 F.2d 903, 905 (4th Cir. 1986)("There is no fundamental right to produce or distribute marijuana commercially."); United States v. Fogarty, 692 F.2d 542, 547 (8th Cir. 1982) ("[T]here is no fundamental constitutional right to import, sell, or possess marijuana . . . ."); cf. United States v. Greene, 892 F.2d 453, 454 (6th Cir. 1989) (holding that possession of marijuana is not protected by the free exercise clause of the First Amendment); United States v. Middleton, 690 F.2d 820, 825-26 (11th Cir. 1982) (same).

Further, to the extent that Storm-Eggink sought to pursue claims under 18 U.S.C. 241 and 242, both criminal statutes, we have held that there is no private right of action under 242, see Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 511 (2d Cir. 1994), while nothing in the language or structure of 241 suggests that Congress intended to create a private right of action under that section, see 18 U.S.C. 241; Newcomb v. Ingle, 827 F.2d 675, 676 n.1 (10th Cir. 1987); see also Cent. Bank of Denver v. First Interstate Bank of Denver, 511 U.S. 164, 190 (1994) (refusing to infer a private right of action from a "bare criminal statute"); Conn. Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81, 86-87 (2d Cir. 1972) ("It is a truism, and has been for many decades, that in our federal system crimes are always prosecuted by the Federal Government, not . . . by private complaints."). Accordingly, Storm-Eggink's complaint lacks an arguable legal basis, and the judgment of the district court is hereby AFFIRMED.

FOR THE COURT:

Catherine O'Hagan Wolfe, Clerk

20110202

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