                                                                     F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                   February 2, 2007
                      UNITED STATES CO URT O F APPEALS
                                                                  Elisabeth A. Shumaker
                                    TENTH CIRCUIT                     Clerk of Court



 AARON J. DURHAM ,

          Plaintiff-Appellant,
 v.

 U N ITED STA TES O F A M ER ICA;
 JEFFREY B. W HEATON, Dr.,
 D.D.S.; AR DEN T HEA LTH
 SER VIC ES, LLC ; STA TE O F                          No. 06-2299
 NEV AD A; STATE OF NEW                     (D.C. No. CIV-06-290 M CA /AC T)
 M EX ICO; H EA LTH CA RE FO R THE                      (D .N.M .)
 HO M ELESS; UN IVERSITY O F NEW
 M EX ICO HEA LTH SCIEN CES;
 U N IV ERSITY O F K A N SA S
 M ED ICAL C EN TER ; STA TE OF
 C ALIFO RN IA ,

          Defendants - Appellees.




                             OR DER AND JUDGM ENT *


Before BR ISC OE, EBEL, and M cCO NNELL, Circuit Judges.




      *
       After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G ). The case is therefore ordered submitted without oral argument. 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order and judgment is not binding precedent, except under the doctrines of law of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.
      Plaintiff-Appellant Aaron Durham, proceeding pro se and in forma

pauperis, appeals the district court’s sua sponte dismissal of his suit pursuant to

28 U.S.C. § 1915(e)(2). 1 M r. D urham claimed in his action under 42 U.S.C. §

1983 that the Defendants-A ppellees violated his constitutional rights by, inter

alia, surgically implanting “optical electron microcircuits” in fillings in his teeth

and utilizing the signals broadcast by these devices to monitor M r. Durham’s

location and speech, in service of a larger project of investigating and prosecuting

M r. Durham as an enemy combatant.

      W e review dismissal pursuant to 28 U.S.C. § 1915 for abuse of discretion.

M cW illiams v. State of Colorado, 121 F.3d 573, 574-75 (10th Cir. 1997). Under

the abuse of discretion standard, “a trial court's decision will not be disturbed

unless the appellate court has a definite and firm conviction that the lower court

made a clear error of judgment or exceeded the bounds of permissible choice in

the circumstances.” U nited States v. W eidner, 437 F.3d 1023, 1042 (10th Cir.

2006) (quoting M cEwen v. City of N orman, 926 F.2d 1539, 1553-54 (10th Cir.

      1
          Section 1915(e)(2) provides, in relevant part:

      Notwithstanding any filing fee, or any portion thereof, that may have
      been paid, the court shall dismiss the case at any time if the court
      determines that--

      (B) the action or appeal--
      (i) is frivolous or malicious;
      (ii) fails to state a claim on which relief may be granted; or
      (iii) seeks monetary relief against a defendant who is immune from
      such relief.

                                           -2-
1991)). “An abuse of discretion occurs w hen the district court’s decision is

arbitrary, capricious, or whimsical, or results in a manifestly unreasonable

judgment.” Id. (quoting M oothart v. Bell, 21 F.3d 1499, 1504 (10th Cir. 1994)).

      Finding no evidence of caprice, whimsy, or a clear error in judgment in the

district court’s ruling, we AFFIRM its dismissal of M r. Durham’s complaint

under § 1915(e)(2).



                                       ENTERED FOR THE COURT



                                       David M . Ebel
                                       Circuit Judge




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