                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                February 13, 2013
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT



 KELLY S. MCENTIRE,

              Plaintiff - Appellant,

 v.                                                      No. 12-4206
                                                          (D. Utah)
 FEDERATED INVESTMENT                          (D.C. No. 2:12-CV-00375-DB)
 MANAGEMENT; BANK OF UTAH;
 ROBERT NEWMAN; AMERICA
 FIRST CREDIT UNION; WEBER
 CREDIT UNION; JAMES
 SELANDER,

              Defendants - Appellees.


                           ORDER AND JUDGMENT *


Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.


      Under 28 U.S.C. § 1915(e)(2)(B)(i) the district court may dismiss a case

filed by a plaintiff proceeding in forma pauperis if the complaint is “frivolous.”



      *
       After examining the briefs and appellate record, this panel has determined
unanimously to honor the party’s request for a decision on the brief without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and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.
“[A] court may dismiss a claim as factually frivolous only if the facts alleged are

‘clearly baseless,’ a category encompassing allegations that are ‘fanciful,’

‘fantastic,’ and ‘delusional.’ As those words suggest, a finding of factual

frivolousness is appropriate when the facts alleged rise to the level of the

irrational or the wholly incredible . . . .” Denton v. Hernandez, 504 U.S. 25,

32–33 (1992) (citations and internal quotation marks omitted). It is not enough

that the factual allegations be unlikely, “for truth is always strange, Stranger than

fiction.” Id. at 33 (internal quotation marks omitted). The court must therefore

be cautious, even understanding, before invoking this ground for dismissal.

      In this case, Magistrate Judge Evelyn J. Furse displayed such caution and

understanding. Faced with a, to say the least, confusing complaint filed by

plaintiff Kelly McEntire, who was proceeding in forma pauperis, Judge Furse set

a hearing at which Mr. McEntire could clarify his allegations. Only after

conducting the hearing did the judge conclude, quite properly, that the case was

factually frivolous. Judge Furse’s report and recommendation proposed dismissal

of the case as frivolous, and the district court adopted the recommendation.




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      For the reasons stated in the report and recommendation, we AFFIRM the

judgment below. We DENY Mr. McEntire’s request to proceed in forma

pauperis.



                                    ENTERED FOR THE COURT


                                    Harris L Hartz
                                    Circuit Judge




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