                                                                          FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                    February 1, 2011
                    UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                       Clerk of Court
                                 TENTH CIRCUIT



 ANTHONY C. KENNEY,

               Plaintiff-Appellant,                      No. 10-5128
          v.                                            (N.D. of Okla.)
 SWIFT TRANS. INC., and JERRY               (D.C. No. 4:10-CV-00515-TCK-FHM)
 MOYES,

               Defendants-Appellees.


                            ORDER AND JUDGMENT *


Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges. **


      Anthony Kenney, appearing pro se, appeals from the district court’s order

dismissing his one-page complaint. The district court, sua sponte, dismissed

Kenney’s complaint for failure to state a claim upon which relief may be granted.

Because we conclude the complaint was properly dismissed, we AFFIRM.




      *
         This order and judgment is not binding precedent except under the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.
                                   I. Background

      In August 2010, Kenney filed a one-page complaint asserting a claim for

arbitration fraud. He attached to the complaint several documents related to an

arbitration between him and one of the defendants, Swift Transportation Inc.

Kenney had previously filed a suit against Swift claiming it failed to employ him

based upon his race in violation of Title VII of the 1964 Civil Rights Act as well

as other claims arising out of Swift’s decision not to hire Kenney. The parties in

that matter entered into arbitration to settle all of Kenney’s claims. The arbitrator

determined Kenney’s claims were without merit and frivolous and dismissed all

of his claims against Swift.

      The district court, after reviewing Kenney’s complaint, dismissed it sua

sponte under Federal Rule of Civil Procedure 12(b)(6) because it failed to allege

any factual basis to support its claims. In the same order dismissing Kenney’s

complaint, the district court granted his motion for leave to proceed in forma

pauperis.

                                    II. Discussion

      We review de novo the district court’s Rule 12(b)(6) dismissal. See Christy

Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1191 (10th Cir. 2009).

“To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v.

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Twombly, 550 U.S. 544, 570 (2007)). “[W]e assume the factual allegations are

true and ask whether it is plausible that the plaintiff is entitled to relief.”

Gallagher v. Shelton, 587 F.3d 1063, 1068 (10th Cir. 2009). “A district court

may dismiss a case sua sponte under Federal Rule [of] Civil Procedure 12(b)

‘when it is patently obvious that the plaintiff could not prevail on the facts

alleged.’” Andrews v. Heaton, 483 F.3d 1070, 1074 n.2 (10th Cir. 2007) (quoting

McKinney v. State of Okla., Dep’t of Human Servs., Shawnee, Okla., 925 F.2d

363, 365 (10th Cir. 1991)).

      After a careful review of the record, we conclude the district court properly

dismissed Kenney’s complaint under Rule 12(b)(6). Although we construe

Kenney’s pleadings liberally because he proceeds pro se, see Hall v. Bellmon, 935

F.2d 1106, 1110 (10th Cir. 1991), he has failed to allege any factual basis for his

claims. In his one-page complaint, he asserts a claim for arbitration fraud but

does not include a factual basis to support this claim. Therefore, by not alleging

any facts to support his claim, Kenney has failed to allege a claim upon which

relief may be granted.




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                              III. Conclusion

      For the foregoing reasons we AFFIRM the dismissal of Kenney’s

complaint.

                                                Entered for the Court

                                                Timothy M. Tymkovich
                                                Circuit Judge




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