                                                                         F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                         August 23, 2007
                                 TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                         Clerk of Court


 A LLEN W O LFSO N ,

               Petitioner-A ppellant,                    No. 07-4114
          v.                                             (D. o f Utah)
 GINO CA RLU CCI, UN ITED STATES                (D.C. No. 2:06-CV-960-PGC)
 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.



                            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         This order and judgment is not binding precedent except under the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 327–28.




      1
         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)).
      2
        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.

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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




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