                                                              FILED
                                                  United States Court of Appeals
                      UNITED STATES COURT OF APPEALS      Tenth Circuit

                                    TENTH CIRCUIT                       February 9, 2012

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court

 RAYFIELD J. THIBEAUX,

        Plaintiff - Appellant,

 v.                                                          No. 12-1016
                                                    (D.C. No. 1:11-CV-03348-LTB)
 BUREL CAIN, Warden, Dixon                                     (D. Colo.)
 Correctional Institute;
 TOM DESPORT, Psychologist, Eastern
 Louisiana Mental Health Systems
 and Unknown Psychiatrist, Eastern
 Louisiana Mental Health Systems,

        Defendants - Appellees.




                                 ORDER AND JUDGMENT*


Before LUCERO, O’BRIEN, and MATHESON, 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
       Rayfield Thibeaux, proceeding pro se,1 appeals the district court’s dismissal of his

42 U.S.C. § 1983 complaint against several employees of the State of Louisiana. The

district court concluded that all of Mr. Thibeaux’s claims were factually frivolous.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

       On January 6, 2012, Mr. Thibeaux filed a pro se complaint and a motion for leave

to proceed in forma pauperis (“IFP”) in the United States District Court for the District

of Colorado. In his complaint, Mr. Thibeaux claimed that the Warden of the Dixon

Correctional Institute and two mental health providers employed by the State of

Louisiana violated his constitutional rights while he was incarcerated in 1982. As the

factual basis for his claims, Mr. Thibeaux stated:

                     While incarcerated at Dixon Correctional Institute in
              Jackson, Louisiana, a conspiracy took place in 1982 to
              secretly in[s]ert a surreptitious, interception communications,
              fiber optic cable wire into the left cheek of my re[c]tum by
              the Defendants. The purpose was to determin[e] what I had
              been doing and/or what criminal activity I was into, prior to
              going into that prison. That monitoring is still happening,
              while living outside the prison.

ROA at 77.

       Title 28 U.S.C. § 1915(e)(2)(B) provides that a court shall dismiss an IFP

proceeding “if the court determines that . . . the action or appeal—(i) is frivolous or

       1
         Because Mr. Thibeaux is proceeding pro se, we construe his filings liberally. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also United States v. Pinson, 584 F.3d
972, 975 (10th Cir. 2009) (“[W]e must construe [a pro se litigant’s] arguments liberally;
this rule of liberal construction stops, however, at the point at which we begin to serve as
his advocate.”).

                                             -2-
malicious; or (ii) fails to state a claim on which relief may be granted.” 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] 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, 33 (1992).

       After reviewing the allegations raised in Mr. Thibeaux’s complaint, the district

court concluded that Mr. Thibeaux’s claims were factually frivolous.2 The district court

then dismissed Mr. Thibeaux’s complaint and denied his motion to proceed IFP on

appeal.

       On appeal, Mr. Thibeaux argues that the district court erred in dismissing his

complaint, and he renews his application to proceed IFP. We review a district court’s

dismissal of an IFP complaint for factual frivolousness under § 1915(e)(2)(b)(i) for an

abuse of discretion. See Fogle v. Pierson, 435 F.3d 1252, 1259 (10th Cir. 2006).

       In his brief to this court, Mr. Thibeaux repeats the same facts that he asserted in

his complaint and offers no argument concerning the district court’s treatment of his

claims. After carefully reviewing Mr. Thibeaux’s complaint and the relevant legal

authority, we hold that the district court did not abuse its discretion in concluding that the

       2
         The district court noted that even if Mr. Thibeaux’s claims were not
dismissed as factually frivolous, they would likely be barred by the applicable statute of
limitations. The court further noted that Mr. Thibeaux’s claims would likely be subject to
dismissal for lack of personal jurisdiction over the named defendants and for improper
venue.


                                             -3-
factual allegations in Mr. Thibeaux’s complaint rise to the level of “the irrational or the

wholly incredible.” We therefore affirm the district court’s dismissal of Mr. Thibeaux’s

complaint as frivolous and deny his renewed application to proceed IFP.

                                           ENTERED FOR THE COURT



                                           Scott M. Matheson, Jr.
                                           Circuit Judge




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