                                                             FILED
                                                  United States Court of Appeals
                                                          Tenth Circuit

                                                         June 10, 2011
                  UNITED STATES COURT OF APPEALS
                                               Elisabeth A. Shumaker
                                                         Clerk of Court
                               TENTH CIRCUIT


NEIL ADAMS MCGINNIS,

      Plaintiff - Appellant,
                                                 No. 10-8114
v.                                       (D.C. No. 10-CV-00200-WFD)
                                                   (D. Wyo.)
DAVID FREUDENTHAL,
individually and in his official
capacity as Wyoming Governor;
BRUCE SALZBURG, individually and
in his official capacity as Wyoming
Attorney General; JEANIE STONE,
individually and in her official
capacity as the Campbell County
District Attorney; MR.
MATTHONEY, individually and in his
official capacity as the Campbell
County Undersheriff; BILL
POWNELL, individually and in his
official capacity as the Campbell
County Sheriff; MR. CHEAIRS,
individually and in his official
capacity as the Campbell County
Detention Center Jail Administrator;
JIM HLOUCAL, individually and in
his official capacity as the Gillette
Police Department Chief of Police;
MR. SALO, individually and in his
official capacity as the Campbell
County Detention Center Correctional
Officer; MR. O’NEAL, individually
and in his official capacity as the
Campbell County Detention Center
Lieutenant; MR. GIBSON,
individually and in his official
capacity as a Campbell County
Detention Center Correctional Officer;
MICHAEL SHOUMAKER,
individually and in his official
capacity as Wyoming Public Defender;
RICHARD LIPKA, individually and in
his official capacity as a Wyoming
Public Defender; DIANE LOZANO,
individually and in her official
capacity as a Wyoming Public
Defender; KERRIE JOHNSON,
individually and in her official
capacity as a Wyoming Public
Defender; BERNIE FOSTER,
individually and in his official
capacity as Wyoming Public Defender
Program Investigator; WILLIAM
ANDERSON, individually and in his
official capacity as Gillett City
Attorney; CAROL SEEGER,
individually and in her official
capacity as a Campbell County
Attorney; MR. WARNE, individually
and in his official capacity as a Gillett
Police Department Detective; MS.
KRUEGER, individually and in her
official capacity as a Campbell County
Detention Center Sergeant; MS.
DEARCORN, individually and in her
official capacity as a Campbell County
Detention Center Sergeant; JEFF
RECH, individually and in his official
capacity as a Campbell County
Detention Center Sergeant; CARL
DICK, SR., individually and in his
official capacity as a Campbell County
Detention Center Sergeant; MR. JUST,
individually and in his official
capacity Campbell County Detention
Center Corporal; MS. SMITH,
individually and in her official
capacity as a Campbell County


                                        -2-
Detention Center Corporal; MARY
ANN HANNIGEN, individually and in
her official capacity as a Campbell
County Detention Center Corporal;
CARLA ENSON, individually and in
her official capacity as a Campbell
County Detention Center Correctional
Officer; MR. CHENEY, individually
and in his official capacity as a
Campbell County Detention Center
Correctional Officer; MR.
FREDDSEN, individually and in his
official capacity as a Campbell County
Detention Center Correctional Officer;
MR. MORRISEN, individually and in
his official capacity as a Campbell
County Detention Center Correctional
Officer; MR. BOEK, individually and
in his official capacity as a Campbell
County Detention Center Correctional
Officer; CLARANCE BARRY,
individually and in his official
capacity as a Campbell County
Detention Center Correctional Officer;
BEN HOANG, individually and in his
official capacity as a Campbell County
Detention Center Correctional Officer;
MR. STENBERG, individually and in
his official capacity as a Campbell
County Detention Center Correctional
Officer; MR. LOUSECH, individually
and in his official capacity as a
Campbell County Detention Center
Correctional Officer; MR.
CARPENTER, individually and in his
official capacity as a Campbell County
Detention Center Correctional Officer;
MR. HILL, individually and in his
official capacity as a Campbell County
Detention Center Correctional Officer;


                                     -3-
STEVE CHAFLANT, individually and
in his official capacity as a Campbell
County Detention Center Correctional
Officer; NINA SMITH, individually
and in his official capacity as a
Campbell County Detention Center
Correctional Officer; CHRIS ANTLE,
individually and in his official
capacity as a Campbell County
Detention Center Correctional Officer;
MR. SHAHL, individually and in his
official capacity as a Campbell County
Detention Center Correctional Officer;
PAUL BEACHAUM, individually and
in his official capacity as a Campbell
County Detention Center Correctional
Officer; CARL DICK, JR.,
individually and in his official
capacity as a Campbell County
Detention Center Correctional Officer;
MR. HOLDEN, individually and in his
official capacity as a Campbell County
Detention Center Correctional Officer;
MR. INNIS, individually and in his
official capacity as a Campbell County
Detention Center Correctional Officer;
MR. KNITTLE, individually and in his
official capacity as a Campbell County
Detention Center Correctional Officer;
MS. STILLSON, individually and in
her official capacity as a Campbell
County Detention Center Correctional
Officer; MR. COXBILL, individually
and in his official capacity as a
Campbell County Detention Center
Correctional Officer; CLAUDE
MCKEE, individually and in his
official capacity as a Campbell County
Detention Center Correctional Officer;
MS. HOLENBECK, individually and


                                     -4-
in her official capacity as a Campbell
County Detention Center Correctional
Officer; MR. HUNTER, individually
and in his official capacity as a
Campbell County Center Correctional
Officer; MR. MELLOTT, individually
and in his official capacity as a
Campbell County Detention Center
Correctional Officer; MR. GOOL,
individually and in his official
capacity as a Campbell County
Detention Center Correctional Officer,
a/k/a Mr. Goohl, a/k/a Mr. Gooul;
JENNIFER JORDON, individually and
in her official capacity as a Campbell
County Detention Center Correctional
Officer; LAURIE HAWTHRONE,
individually and in her official
capacity as a Campbell County
Detention Center Correctional Officer;
MR. BAKER, individually and in his
official capacity as a Campbell County
Detention Center Correctional Officer;
MR. BHUR, individually and in his
official capacity as a Campbell County
Detention Center Correctional Officer;
MR. BRUNSON, individually and in
his official capacity as a Campbell
County Detention Center Correctional
Officer; MR. GUTIERREZ,
individually and in his official
capacity as a Campbell County
Detention Center Correctional Officer;
MS. TENSLEY, individually and in
her official capacity as a Campbell
County Detention Center Correctional
Officer; TERRY JENSEN,
individually and in his official
capacity as a Campbell County
Detention Center Correctional Officer;


                                     -5-
 WYOMING GOVERNOR’S OFFICE;
 CAMPBELL COUNTY DISTRICT
 ATTORNEY’S OFFICE; GILLETTE
 POLICE DEPARTMENT, officials,
 officers and personnel; WYOMING
 DEPARTMENT OF CRIMINAL
 INVESTIGATION; MR. SEAMEN,
 individually and in his official
 capacity as a Campbell County Deputy
 Sheriff,

    Defendants - Appellees.


                           ORDER AND JUDGMENT *


Before KELLY, HARTZ and, HOLMES Circuit Judges. **


      Plaintiff-Appellant Neil McGinnis, a state inmate proceeding pro se,

appeals the district court’s dismissal of his civil rights complaint. Exercising

jurisdiction under 28 U.S.C. § 1291, 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.

                                        -6-
                                    Background

      Mr. McGinnis is a pretrial detainee in custody at the Campbell County

Sheriff’s Office in Gillette, Wyoming. In McGinnis v. Wyoming, 407 F. App’x

303 (10th Cir. 2011), we denied Mr. McGinnis a COA to pursue his 28 U.S.C.

§ 2254 claims. We recognized that an action under 42 U.S.C. § 1983 might be

available for those claims. Id. at 304.

      In this civil rights action, he alleged torture and malicious cruelty by the

government and prison officials, specifically, torture by digital electromagnetic

waves and other clandestine methods. R. 620, 622. He also claimed that he is

incarcerated based on a fraudulent indictment. Id. at 620. The district court

concluded that the allegations of torture were delusional and fantastical and

dismissed those claims as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i). In

addition, the court concluded that the fraudulent indictment claim contained only

conclusory allegations without any factual support and dismissed it for failure to

state a claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6).



                                     Discussion

      We review the district court’s dismissal of a prisoner’s complaint for

frivolousness for an abuse of discretion, but if the frivolousness determination

turns on an issue of law, we review the determination de novo. See Fogle v.

Pierson, 435 F.3d 1252, 1259 (10th Cir. 2006). A complaint is frivolous if “it

                                          -7-
lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S.

319, 325 (1989).

      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). “A district court may dismiss a case sua sponte under Federal Rule 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) (quotation marks and citation omitted).

      Because Mr. McGinnis is proceeding pro se, we construe his pleadings

liberally, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), but we will not assume

the role of advocate for a pro se litigant. Hall v. Bellmon, 935 F.2d 1106, 1110

(10th Cir. 1991).

      After reviewing the record, we conclude that Mr. McGinnis’ claims of

electromagnetic torture are delusional and unsupported by any factual basis. The

district court did not abuse its discretion in dismissing these claims as frivolous.

In addition, it is “patently obvious” that Mr. McGinnis could not prevail on the

fraudulent indictment claim, as a federal court may not intervene in ongoing state

criminal proceedings, absent unusual circumstances—none of which are present

here. See Younger v. Harris, 401 U.S. 37 (1971).

      Accordingly, we affirm the dismissal of Mr. McGinnis’s complaint. We

deny all pending motions, including his motion to proceed in forma pauperis on

                                         -8-
appeal, and order him to pay his filing fee.


                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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