|GINO CARLUCCI, UNITED STATES OF AMERICA, SALT LAKE COUNTY, MICHAEL HIRATA, and STATE OF UTAH,|
Wolfson proceeded in forma pauperis below and is subject to the strictures of 28 U.S.C. 1915. The legal standard for dismissal under 1915(e)(2)(B)(i) differs from that of a dismissal under Fed. R. Civ. P. 12(b)(6).(1) Neitzke v. Williams, 490 U.S. 319 (1989); see also McKinney v. Oklahoma, Dep't of Human Services, 925 F.2d 363, 365 (10th Cir. 1991). Section 1915(e)(2)(B)(i) requires a court to dismiss an in forma pauperis action if it is "frivolous or malicious." Under this provision, district court judges may "pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless. . .[i.e.] claims describing fantastic or delusional scenarios, claims with which federal district judges are all too familiar."(2) Neitzke, 490 U.S. at 32728. Section 1915(e)(2)(B)(iii) also allows for dismissal of suits against defendants who are immune to such suits.
The district court sua sponte dismissed Wolfson's claims on several grounds. First, it correctly found prosecutorial immunity for Hirata and sovereign immunity for the State of Utah. Second, it noted that the dismissal of criminal charges against Carlucci did not amount to a claim under 1985. Third, it found that Wolfson had failed to plead any facts that would give the court jurisdiction over Carlucci under 28 U.S.C. 1332 or any other jurisdictional statute. Finally, with its citation to McKinney, the district court found that Wolfson's allegations were sufficiently fanciful that they warranted dismissal as frivolous or malicious.
We agree with the district court's analysis and AFFIRM the dismissal of Wolfson's claims. We deny his motion to proceed in forma pauperis on appeal.
Entered for the Court
Timothy M. Tymkovich
*. This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel.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.
2. 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.
1. We recognize, however, that the language of 1915(e)(2)(B)(ii) regarding the failure to state a legal claim tracks with Fed. R. Civ. P. 12(b)(6) such that review of dismissals under those two provisions should be the same. Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997). Hence, our review for dismissal based on 1915(e)(2)(B)(ii) is "for plausibility in the complaint." Alvarado v. KOB-TV, __F.3d__ No. 06-2001, 2007 WL 2019752, *3 (10th Cir. July 13, 2007) (citing Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1970 (2007)).
2. Section 1915(e)(2)(B)(i) was 1915(d) at the time of the McKinney decision discussed here. The old 1915(d) became part of 1915(e) in 1996.