UNITED STATES COURT OF APPEALS
Filed 7/22/96
TENTH CIRCUIT
GARY DON McGEE,
Plaintiff-Appellant,
No. 96-6080
v.
(W. Dist. of OK)
(D.C. No. CIV-96-151-A)
LARRY A. FIELDS and FRANK
KEATING,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.
Plaintiff Gary Don McGee, a state prisoner proceeding pro se and in forma
pauperis, appeals the dismissal of his § 1983 complaint. The district court
dismissed the complaint under 28 U.S.C. § 1915(d), finding that it was legally
frivolous. We affirm.
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
McGee brought this suit under § 1983, claiming that the Oklahoma Prison
Overcrowding Emergency Powers Act (the “Act”), Okla. Stat. Ann. tit. 57, §§
570-576 (West 1991 & Supp. 1996), is unconstitutional because it denies
emergency time credits to violent offenders. The district court referred the suit to
a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) for initial proceedings.
The magistrate judge recommended that McGee’s suit be dismissed as frivolous
because this court had previously upheld the Act against claims identical to those
advanced by McGee. See Shifrin v. Fields, 39 F.3d 1112, 1114 (10th Cir. 1994);
Keeton v. Oklahoma, 32 F.3d 451, 452 (10th Cir. 1994). After de novo review,
the district court adopted the magistrate judge’s Report and Recommendation.
McGee appeals.
“Mindful that pro se actions are held to a less stringent standard of review
and that sua sponte dismissals are generally disfavored by the courts, we
nonetheless allow a complaint to be dismissed under § 1915(d) ‘if the plaintiff
cannot make a rational argument on the law and facts in support of his claim.’”
Yellen v. Cooper, 828 F.2d 1471, 1475 (10th Cir. 1987 (quoting Van Sickle v.
Holloway, 791 F.2d 1431, 1434 (10th Cir. 1986)). We review a district court’s
dismissal under section 1915(d) for an abuse of discretion. Denton v. Hernandez,
112 S. Ct. 1728, 1734 (1992).
-2-
As the magistrate judge correctly noted, McGee’s challenge to the Act is
clearly foreclosed by the decisions of this court in Shifrin and Keeton. Because
McGee’s claims clearly have no basis in law, the district court did not abuse its
discretion in dismissing his complaint under section 1915(d). See Neitzke v.
Williams, 490 U.S. 319, 325 (1989) (holding that in forma pauperis complaint is
frivolous if it embraces an “inarguable legal conclusion” or a “fanciful factual
allegation”). The judgment of the United States District Court for the Western
District of Oklahoma is therefore AFFIRMED.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
-3-