959 F2d 1101 Ford v. L Thornburgh

959 F.2d 1101

295 U.S.App.D.C. 97

Edward FORD, Appellant
v.
Richard L. THORNBURGH.

No. 91-5154.

United States Court of Appeals, District of Columbia Circuit.

March 4, 1992.

NOTICE: D.C. Circuit Local Rule 11(c) states that unpublished orders, judgments, and explanatory memoranda may not be cited as precedents, but counsel may refer to unpublished dispositions when the binding or preclusive effect of the disposition, rather than its quality as precedent, is relevant.

Before HARRY T. EDWARDS, Silberman and KAREN LeCRAFT HENDERSON, Circuit Judges.

ORDER

PER CURIAM.


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1

Upon consideration of the motion for summary remand, the response to order to show cause, the motion for summary affirmance, the response thereto and the renewed motion for summary remand, it is

2

ORDERED that the order to show cause be discharged. It is

3

FURTHER ORDERED that the motion for summary remand and the renewed motion for summary remand each be denied. It is

4

FURTHER ORDERED that the motion for summary affirmance be granted. The merits of the parties' positions are so clear as to justify summary action. See Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C.Cir.1987) (per curiam); Walker v. Washington, 627 F.2d 541, 545 (D.C.Cir.) (per curiam), cert. denied, 449 U.S. 994 (1980).

5

21 U.S.C. § 811(g)(1) provides that certain over-the-counter medications containing controlled substances may be lawfully sold. This statute is a narrow exception to 21 U.S.C. § 841(a), which proscribes the sale or manufacture of a controlled substance, including methamphetamine. See 21 U.S.C. § 812, Schedule II. The over-the-counter medications governed by section 811(g)(1) were not at issue in appellant's criminal prosecution. Thus, the district court was well within its discretion in dismissing appellant's complaint as frivolous. See Sills v. Bureau of Prisons, 761 F.2d 792 (D.C.Cir.1985) (unless a complaint has an arguable basis in law and fact, it may be dismissed as frivolous).

6

The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C.Cir.Rule 15.