448 F. App'x 856

Lester Jon RUSTON, Petitioner-Appellant, v. UNITED STATES of America; Michael Nalley; Richard Schott; Christina Pietz; James Kenneth Wolfson; Michael Sarrazin; James Robert Womack; Shawn Channell, Defendants-Appellees.

No. 11-3311.

United States Court of Appeals, Tenth Circuit.

Jan. 20, 2012.

Lester Jon Ruston, Seagoville, TX, pro se.

Before BRISCOE, Chief Judge, MURPHY and MATHESON, Circuit Judges.

ORDER AND JUDGMENT*

SCOTT M. MATHESON, JR., Circuit Judge.

In 2006, Lester Jon Ruston was found not guilty of a criminal charge by reason of insanity. He is presently confined at the Federal Correctional Institution in Seago-ville, Texas.

On January 3, 2011, Mr. Ruston filed a pro se complaint and a motion for leave to proceed in forma pauperis (“IFP”) in the United States District Court for the District of Kansas. In his complaint, Mr. Ruston attempted to assert several claims against various defendants, including the United States of America and Michael Nal-ley, the regional director of the north-central region of the Federal Bureau of Prisons.

Title 28 U.S.C. § 1915(e)(2)(B) provides that a court shall dismiss an IFP proceeding “if the court determines that ... the action or appeal — (i) is frivolous or malicious; or (ii) fails to state a claim on which relief may be granted.”1 A complaint is frivolous if “it lacks an arguable basis in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). “[A] finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible.” Denton v. Hernandez, 504 U.S. 25, 33, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992).

After giving “careful consideration” to Mr. Ruston’s complaint and subsequent pleadings, the district court concluded “that [Mr. Ruston’s] factual allegations ... [were] fantastic,” Ruston v. United States, No. 11-3003-SAC, 2011 U.S. Dist. LEXIS 101194, at * 3 (D.Kan. Sept. 7, 2011), and that “the role of each [named] defendant in the acts alleged [was] not clear.” Id. at *2. The district court therefore concluded that “the appropriate resolution of th[e] matter [was] summary dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)[ (i) ].”2 Mr. *857Ruston now appeals the district court’s order.3 He also has renewed his motion to proceed IFP.

We review a district court’s dismissal of an IFP complaint for factual frivolousness under § 1915(e)(2)(b)® for abuse of discretion. See Fogle v. Pierson, 435 F.3d 1252, 1259 (10th Cir.2006).

After carefully reviewing Mr. Ruston’s complaint and the relevant legal authority, we conclude that the district court did not abuse its discretion in concluding that the factual allegations in Mr. Ruston’s complaint rise “to the level of the irrational or the wholly incredible.” We therefore affirm the district court’s dismissal of Mr. Ruston’s complaint as frivolous, deny Mr. Ruston’s renewed application to proceed IFP, and assess a “strike” against Mr. Ruston under 28 U.S.C. § 1915(g).

Ruston v. United States
448 F. App'x 856

Case Details

Name
Ruston v. United States
Decision Date
Jan 20, 2012
Citations

448 F. App'x 856

Jurisdiction
United States

References

Referencing

Nothing yet... Still searching!

Referenced By

Nothing yet... Still searching!