                                                                          FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  October 17, 2011
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 ERIC FLORES,

               Plaintiff-Appellant,                       No. 11-1277
          v.                                              (D. of Colo.)
 UNITED STATES ATTORNEY                        (D.C. No. 1:11-CV-01036-LTB)
 GENERAL, UNITED STATES
 DEPARTMENT OF HEALTH AND
 HUMAN SERVICES, and SIERRA
 MEDICAL CENTER,

               Defendants-Appellants.


                            ORDER AND JUDGMENT *


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


      Plaintiff-Appellant Eric Flores filed a pro se suit in the District of

Colorado, alleging government agents and foreign diplomatic officials used high-

tech satellites to torture him and members of his family. The district court denied



      *
         This order and judgment is not binding precedent except under the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.
his claims as frivolous. Exercising our jurisdiction under 28 U.S.C. § 1291, we

AFFIRM the decision of the district court.

                                   I. Background

      Flores is a Colorado state prisoner incarcerated at the Pueblo County Jail.

He initiated this action by filing a pro se Prisoner Complaint pursuant to 28

U.S.C. § 1343 and 42 U.S.C. § 1983 in the District of Colorado. The district

court dismissed his complaint on the grounds that it was legally frivolous. Flores

filed this appeal, along with a motion to proceed in forma pauperis. He also filed

a “Notice for Leave to Proceed Informa Pauperis on Petition for Writ of Certiorari

to the United States Supreme Court Before a Judgment is Entered in the United

States Court of Appeals for the Tenth Circuit.” Because we construe complaints

from pro se litigants liberally, Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.

1991), we interpret his notice as a motion for leave to proceed in forma pauperis

on a 28 U.S.C. § 2101(e) motion.

                                   II. Discussion

      Flores alleges federal employees have violated his constitutional rights and

those of his family members. In his brief he alleges:

      The plaintiff is proceeding informa pauperis and pro se as a
      representative party on behalf of his immediate relatives to complain
      against diplomatic persons of another nation that have solicited an
      organized group of executive employees of the federal government
      that are persons of white American national origin whom reside in
      the geographic location of Denver Colorado, to use advanced
      technology with a direct signal to the satellite in outerspace that has

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      the capability of calculateing [sic] a genetic code to cause the
      plaintiff and his immediate relatives whom are designated as a
      protected class of Mexican American citizens of the United States
      that reside in the geographic location of El Paso Texas, severe pain
      for long durations exceeding calendar years which was equivalent in
      intensity to organ failure or impairment of body functions resulting
      in the wrongful death of Jorge Salas, Mary Salas, and Javier Flores
      Junior the deceased members of this cause of action.

Aplt. Br. at 12.

      Flores also alleges the government used the technology to control and harm

his family members. Id. at 13–14. He claims that,

      on June 17, 2011 the complained about executive employees of the
      federal government simulated the legal process to deprive the
      plaintiff and his immediate relatives of equal protection of law by
      electronically fileing [sic] frivolous documents resembleing [sic]
      legitimate court actions which falsely portrayed to dismiss the
      plaintiffs complaint to cause the clerk to close the case.

Id. at 11. June 17 is the date the district court’s judgment was entered.

      Flores requests the following avenues of relief. First, a preliminary

injunction to prevent federal employees from further torturing Flores and his

family. Second, a certification of this case to the United States Supreme Court

before this court rules on the merits. Third, a remand to the district court with

instructions to determine whether a permanent injunction is warranted.

      Eighteen U.S.C. § 1915(e)(2)(B)(i) requires us to dismiss a case filed in

forma pauperis that is “frivolous.” A complaint is frivolous if it “lacks an

arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325

(1989). A case is not frivolous simply because it alleges facts that are “unlikely.”

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Denton v. Hernandez, 504 U.S. 25, 33 (1992). Rather, the facts alleged must

“rise to the level of the irrational or the wholly incredible,” id., or depict

“fantastic or delusional scenarios,” Neitzke, 490 U.S. at 328.

      Flores’s complaint rises to this level. The district court did not err in

dismissing the complaint as legally frivolous.

      We advise Flores that the district court’s dismissal for frivolousness counts

as a “prior occasion” or “strike,” under 18 U.S.C. § 1915(g). Flores “is reminded

that if he accrues three strikes, he will no longer be able to proceed in forma

pauperis in any civil action filed in a federal court unless he is in imminent

danger of physical injury.” Thompson v. Gibson, 289 F.3d 1218, 1223 (10th Cir.

2002) (citing § 1915(g)).

                                   III. Conclusion

      Because Flores’s complaint is frivolous, the judgment of the district court

is AFFIRMED, and his motion to proceed in forma pauperis is DENIED. Flores

is directed to pay the entire filing fee immediately. His motion to proceed in

forma pauperis on a 28 U.S.C. § 2101(e) motion is DISMISSED as moot because

this court has now entered a judgment.

                                         ENTERED FOR THE COURT

                                         Timothy M. Tymkovich
                                         Circuit Judge




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