                                                                             FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                     TENTH CIRCUIT                    January 20, 2012

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court

LESTER JON RUSTON,
               Petitioner - Appellant,
v.                                                           No. 11-3311
                                                    (D.C. No. 5:11-CV-03003-SAC)
                                                               (D. Kan.)
UNITED STATES OF AMERICA;
MICHAEL NALLEY; RICHARD
SCHOTT; CHRISTINA PIETZ; JAMES
KENNETH WOLFSON; MICHAEL
SARRAZIN; JAMES ROBERT
WOMACK; SHAWN CHANNELL,

               Defendants - Appellees.


                                ORDER AND JUDGMENT*

Before BRISCOE, Chief Judge, MURPHY and MATHESON, Circuit Judges.


         In 2006, Lester Jon Ruston was found not guilty of a criminal charge by reason of

insanity. He is presently confined at the Federal Correctional Institution in Seagoville,

Texas.



        *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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
       On January 3, 2011, Mr. Ruston 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

Kansas. In his complaint, Mr. Ruston attempted to assert several claims against various

defendants, including the United States of America and Michael Nalley, the regional

director of the north-central region of the Federal Bureau of Prisons.

       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

malicious; or (ii) fails to state a claim on which relief may be granted.”1 A complaint is

frivolous if “it lacks an arguable basis 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 giving “careful consideration” to Mr. Ruston’s complaint and subsequent

pleadings, the district court concluded “that [Mr. Ruston’s] factual allegations . . . [were]

fantastic,” Ruston v. United States, No. 11-3003-SAC, 2011 U.S. Dist. LEXIS 101194, at

* 3 (D. Kan. Sept. 7, 2011), and that “the role of each [named] defendant in the acts

alleged [was] not clear.” Id. at *2. The district court therefore concluded that “the

appropriate resolution of th[e] matter [was] summary dismissal pursuant to 28 U.S.C. §


       1
         Although 28 U.S.C. § 1915(e)(2)(B) was amended by the Prisoner Litigation
Reform Act, we concluded in Ruston v. Church of Jesus Christ of Latter-Day Saints, 304
F. Appx. 666, 668 (10th Cir. 2008) (unpublished), another case involving Mr. Ruston,
that § 1915(e)(2)(B) applies to all IFP proceedings. Although that order and judgment is
not binding precedent, see 10th Cir. R. App. P. 32.1, we find its analysis persuasive.

                                              2
1915(e)(2)(B)[(i)].”2 Mr. Ruston now appeals the district court’s order. 3 He also has

renewed his motion to proceed IFP.

       We review a district court’s dismissal of an IFP complaint for factual

frivolousness under § 1915(e)(2)(b)(i) for abuse of discretion. See Fogle v. Pierson, 435

F.3d 1252, 1259 (10th Cir. 2006).

       After carefully reviewing Mr. Ruston’s complaint and the relevant legal authority,

we conclude that the district court did not abuse its discretion in concluding that the

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

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

complaint as frivolous, deny Mr. Ruston’s renewed application to proceed IFP, and

assess a “strike” against Mr. Ruston under 28 U.S.C. § 1915(g).

                                           ENTERED FOR THE COURT



                                           Scott M. Matheson, Jr.
                                           Circuit Judge




       2
         The district court also dismissed Mr. Ruston’s complaint for failure to state a
claim upon which relief may be granted under § 1915(e)(2)(b)(ii). Because we agree that
the factual assertions in Mr. Ruston’s complaint are frivolous, we need not and do not
address this alternative basis for dismissing Mr. Ruston’s complaint.
       3
         Because Mr. Ruston is proceeding pro se, we construe his pleadings 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.”).
                                              3
