Summary
upholding dismissal of frivolous complaint alleging plaintiff was subjected to electromagnetic torture
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No. 10-8114.
June 10, 2011.
Neil Adams McGinnis, Gillette, WY, pro se.
Before KELLY, HARTZ and, HOLMES Circuit Judges.
After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
ORDER AND JUDGMENT
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed.R.App.P. 32.1 and 10th Cir. R. 32.1.
Plaintiff-Appellant Neil McGinnis, a state inmate proceeding pro se, appeals the district court's dismissal of his civil rights complaint. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
Background
Mr. McGinnis is a pretrial detainee in custody at the Campbell County Sheriff's Office in Gillette, Wyoming. In McGinnis v. Wyoming, 407 Fed.Appx. 303 (10th Cir. 2011), we denied Mr. McGinnis a COA to pursue his 28 U.S.C. § 2254 claims. We recognized that an action under 42 U.S.C. § 1983 might be available for those claims. Id. at 304.
In this civil rights action, he alleged torture and malicious cruelty by the government and prison officials, specifically, torture by digital electromagnetic waves and other clandestine methods. R. 620, 622. He also claimed that he is incarcerated based on a fraudulent indictment. Id. at 620. The district court concluded that the allegations of torture were delusional and fantastical and dismissed those claims as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i). In addition, the court concluded that the fraudulent indictment claim contained only conclusory allegations without any factual support and dismissed it for failure to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6).
Discussion
We review the district court's dismissal of a prisoner's complaint for frivolousness for an abuse of discretion, but if the frivolousness determination turns on an issue of law, we review the determination de novo. See Fogle v. Pierson, 435 F.3d 1252, 1259 (10th Cir. 2006). A complaint is frivolous if "it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
We review de novo the district court's Rule 12(b)(6) dismissal. See Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1191 (10th Cir. 2009). "A district court may dismiss a case sua sponte under Federal Rule Civil Procedure 12(b) when it is `patently obvious' that the plaintiff could not prevail on the facts alleged." Andrews v. Heaton, 483 F.3d 1070, 1074 n. 2 (10th Cir. 2007) (quotation marks and citation omitted).
Because Mr. McGinnis is proceeding pro se, we construe his pleadings liberally, Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), but we will not assume the role of advocate for a pro se litigant. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
After reviewing the record, we conclude that Mr. McGinnis' claims of electromagnetic torture are delusional and unsupported by any factual basis. The district court did not abuse its discretion in dismissing these claims as frivolous. In addition, it is "patently obvious" that Mr. McGinnis could not prevail on the fraudulent indictment claim, as a federal court may not intervene in ongoing state criminal proceedings, absent unusual circumstances — none of which are present here. See Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).
Accordingly, we affirm the dismissal of Mr. McGinnis's complaint. We deny all pending motions, including his motion to proceed in forma pauperis on appeal, and order him to pay his filing fee.