Wolfson vs. Carlucci

Filing 920070823

Opinion

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United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS TENTH CIRCUIT F I L E D August 23, 2007 Elisabeth A. Shumaker Clerk of Court A LLEN W O LFSO N , Petitioner-A ppellant, v. GINO CA RLU CCI, UN ITED STATES O F A M ER IC A, SA LT LA K E COUNTY, M ICHAEL HIRATA, and STA TE OF U TA H , Respondents-Appellees. No. 07-4114 (D. o f Utah) (D.C. No. 2:06-CV-960-PGC) OR D ER AND JUDGM ENT * Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges. ** Allen W olfson appeals the district court's sua sponte dismissal of his claims brought under 42 U.S.C. 1985. W olfson alleges the United States, the State of Utah, U.S. Attorney M ike Hirata, and Salt Lake County all conspired with Gino Carlucci to cover up Carlucci's theft of equipment from W olfson's This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel.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. 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. ** * property in return for Carlucci testifying against W olfson and his son in court. W olfson contends the different levels of government worked together to drop charges against Carlucci in return for his testimony. W e AFFIRM the district court's sua sponte dismissal. W olfson proceeded in form a 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. W illiam s, 490 U.S. 319 (1989); see also M cKinney 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 form a 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 w hose factual contentions are clearly baseless. . .[i.e.] claims describing fantastic or delusional scenarios, claims w ith which federal district judges are all too familiar." 2 Neitzke, 490 U.S. at 32728. W e 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. M itchell 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. KO B-TV, __F.3d__ No. 06-2001, 2007 W L 2019752, *3 (10th Cir. July 13, 2007) (citing Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1970 (2007)). Section 1915(e)(2)(B)(i) was 1915(d) at the time of the M cKinney decision discussed here. The old 1915(d) became part of 1915(e) in 1996. -22 1 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 W olfson'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 W olfson 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 M cKinney, the district court found that W olfson's allegations were sufficiently fanciful that they warranted dismissal as frivolous or malicious. W e agree with the district court's analysis and AFFIRM the dismissal of W olfson's claims. W e deny his motion to proceed in forma pauperis on appeal. Entered for the Court Timothy M . Tymkovich Circuit Judge -3-

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