91 F.3d 159
NOTICE:  Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties.  See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Gary Don McGEE, Plaintiff-Appellant,v.Larry A. FIELDS and Frank Keating, Defendants-Appellees.
No. 96-6080. (D.C. No. CIV-96-151-A)
United States Court of Appeals, Tenth Circuit.
July 22, 1996.

Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.


1
ORDER AND JUDGEMNT*


2
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.


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.


4
"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).


5
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.



*
 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


