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FILED
`United States Court of Appeals
`Tenth Circuit
`June 10, 2011
`UNITED STATES COURT OF APPEALS
`Elisabeth A. Shumaker
`Clerk of Court
`
`TENTH CIRCUIT
`
`No. 10-8114
`(D.C. No. 10-CV-00200-WFD)
`(D. Wyo.)
`
`NEIL ADAMS MCGINNIS,
`
`Plaintiff - Appellant,
`
`v.
`
`DAVID FREUDENTHAL,
`individually and in his official
`capacity as Wyoming Governor;
`BRUCE SALZBURG, individually and
`in his official capacity as Wyoming
`Attorney General; JEANIE STONE,
`individually and in her official
`capacity as the Campbell County
`District Attorney; MR.
`MATTHONEY, individually and in his
`official capacity as the Campbell
`County Undersheriff; BILL
`POWNELL, individually and in his
`official capacity as the Campbell
`County Sheriff; MR. CHEAIRS,
`individually and in his official
`capacity as the Campbell County
`Detention Center Jail Administrator;
`JIM HLOUCAL, individually and in
`his official capacity as the Gillette
`Police Department Chief of Police;
`MR. SALO, individually and in his
`official capacity as the Campbell
`County Detention Center Correctional
`Officer; MR. O’NEAL, individually
`and in his official capacity as the
`Campbell County Detention Center
`Lieutenant; MR. GIBSON,
`individually and in his official
`capacity as a Campbell County
`Detention Center Correctional Officer;
`
`

`
`MICHAEL SHOUMAKER,
`individually and in his official
`capacity as Wyoming Public Defender;
`RICHARD LIPKA, individually and in
`his official capacity as a Wyoming
`Public Defender; DIANE LOZANO,
`individually and in her official
`capacity as a Wyoming Public
`Defender; KERRIE JOHNSON,
`individually and in her official
`capacity as a Wyoming Public
`Defender; BERNIE FOSTER,
`individually and in his official
`capacity as Wyoming Public Defender
`Program Investigator; WILLIAM
`ANDERSON, individually and in his
`official capacity as Gillett City
`Attorney; CAROL SEEGER,
`individually and in her official
`capacity as a Campbell County
`Attorney; MR. WARNE, individually
`and in his official capacity as a Gillett
`Police Department Detective; MS.
`KRUEGER, individually and in her
`official capacity as a Campbell County
`Detention Center Sergeant; MS.
`DEARCORN, individually and in her
`official capacity as a Campbell County
`Detention Center Sergeant; JEFF
`RECH, individually and in his official
`capacity as a Campbell County
`Detention Center Sergeant; CARL
`DICK, SR., individually and in his
`official capacity as a Campbell County
`Detention Center Sergeant; MR. JUST,
`individually and in his official
`capacity Campbell County Detention
`Center Corporal; MS. SMITH,
`individually and in her official
`capacity as a Campbell County
`
`- 2 -
`
`

`
`Detention Center Corporal; MARY
`ANN HANNIGEN, individually and in
`her official capacity as a Campbell
`County Detention Center Corporal;
`CARLA ENSON, individually and in
`her official capacity as a Campbell
`County Detention Center Correctional
`Officer; MR. CHENEY, individually
`and in his official capacity as a
`Campbell County Detention Center
`Correctional Officer; MR.
`FREDDSEN, individually and in his
`official capacity as a Campbell County
`Detention Center Correctional Officer;
`MR. MORRISEN, individually and in
`his official capacity as a Campbell
`County Detention Center Correctional
`Officer; MR. BOEK, individually and
`in his official capacity as a Campbell
`County Detention Center Correctional
`Officer; CLARANCE BARRY,
`individually and in his official
`capacity as a Campbell County
`Detention Center Correctional Officer;
`BEN HOANG, individually and in his
`official capacity as a Campbell County
`Detention Center Correctional Officer;
`MR. STENBERG, individually and in
`his official capacity as a Campbell
`County Detention Center Correctional
`Officer; MR. LOUSECH, individually
`and in his official capacity as a
`Campbell County Detention Center
`Correctional Officer; MR.
`CARPENTER, individually and in his
`official capacity as a Campbell County
`Detention Center Correctional Officer;
`MR. HILL, individually and in his
`official capacity as a Campbell County
`Detention Center Correctional Officer;
`
`- 3 -
`
`

`
`STEVE CHAFLANT, individually and
`in his official capacity as a Campbell
`County Detention Center Correctional
`Officer; NINA SMITH, individually
`and in his official capacity as a
`Campbell County Detention Center
`Correctional Officer; CHRIS ANTLE,
`individually and in his official
`capacity as a Campbell County
`Detention Center Correctional Officer;
`MR. SHAHL, individually and in his
`official capacity as a Campbell County
`Detention Center Correctional Officer;
`PAUL BEACHAUM, individually and
`in his official capacity as a Campbell
`County Detention Center Correctional
`Officer; CARL DICK, JR.,
`individually and in his official
`capacity as a Campbell County
`Detention Center Correctional Officer;
`MR. HOLDEN, individually and in his
`official capacity as a Campbell County
`Detention Center Correctional Officer;
`MR. INNIS, individually and in his
`official capacity as a Campbell County
`Detention Center Correctional Officer;
`MR. KNITTLE, individually and in his
`official capacity as a Campbell County
`Detention Center Correctional Officer;
`MS. STILLSON, individually and in
`her official capacity as a Campbell
`County Detention Center Correctional
`Officer; MR. COXBILL, individually
`and in his official capacity as a
`Campbell County Detention Center
`Correctional Officer; CLAUDE
`MCKEE, individually and in his
`official capacity as a Campbell County
`Detention Center Correctional Officer;
`MS. HOLENBECK, individually and
`
`- 4 -
`
`

`
`in her official capacity as a Campbell
`County Detention Center Correctional
`Officer; MR. HUNTER, individually
`and in his official capacity as a
`Campbell County Center Correctional
`Officer; MR. MELLOTT, individually
`and in his official capacity as a
`Campbell County Detention Center
`Correctional Officer; MR. GOOL,
`individually and in his official
`capacity as a Campbell County
`Detention Center Correctional Officer,
`a/k/a Mr. Goohl, a/k/a Mr. Gooul;
`JENNIFER JORDON, individually and
`in her official capacity as a Campbell
`County Detention Center Correctional
`Officer; LAURIE HAWTHRONE,
`individually and in her official
`capacity as a Campbell County
`Detention Center Correctional Officer;
`MR. BAKER, individually and in his
`official capacity as a Campbell County
`Detention Center Correctional Officer;
`MR. BHUR, individually and in his
`official capacity as a Campbell County
`Detention Center Correctional Officer;
`MR. BRUNSON, individually and in
`his official capacity as a Campbell
`County Detention Center Correctional
`Officer; MR. GUTIERREZ,
`individually and in his official
`capacity as a Campbell County
`Detention Center Correctional Officer;
`MS. TENSLEY, individually and in
`her official capacity as a Campbell
`County Detention Center Correctional
`Officer; TERRY JENSEN,
`individually and in his official
`capacity as a Campbell County
`Detention Center Correctional Officer;
`
`- 5 -
`
`

`
`WYOMING GOVERNOR’S OFFICE;
`CAMPBELL COUNTY DISTRICT
`ATTORNEY’S OFFICE; GILLETTE
`POLICE DEPARTMENT, officials,
`officers and personnel; WYOMING
`DEPARTMENT OF CRIMINAL
`INVESTIGATION; MR. SEAMEN,
`individually and in his official
`capacity as a Campbell County Deputy
`Sheriff,
`
` Defendants - Appellees.
`
`ORDER AND JUDGMENT*
`
`Before KELLY, HARTZ and, HOLMES Circuit Judges.**
`
`Plaintiff-Appellant Neil McGinnis, a state inmate proceeding pro se,
`
`appeals the district court’s dismissal of his civil rights complaint. Exercising
`
`jurisdiction under 28 U.S.C. § 1291, we affirm.
`
`* 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.
`
`- 6 -
`
`

`
`Background
`
`Mr. McGinnis is a pretrial detainee in custody at the Campbell County
`
`Sheriff’s Office in Gillette, Wyoming. In McGinnis v. Wyoming, 407 F. App’x
`
`303 (10th Cir. 2011), we denied Mr. McGinnis a COA to pursue his 28 U.S.C.
`
`§ 2254 claims. We recognized that an action under 42 U.S.C. § 1983 might be
`
`available for those claims. Id. at 304.
`
`In this civil rights action, he alleged torture and malicious cruelty by the
`
`government and prison officials, specifically, torture by digital electromagnetic
`
`waves and other clandestine methods. R. 620, 622. He also claimed that he is
`
`incarcerated based on a fraudulent indictment. Id. at 620. The district court
`
`concluded that the allegations of torture were delusional and fantastical and
`
`dismissed those claims as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i). In
`
`addition, the court concluded that the fraudulent indictment claim contained only
`
`conclusory allegations without any factual support and dismissed it for failure to
`
`state a claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6).
`
`Discussion
`
`We review the district court’s dismissal of a prisoner’s complaint for
`
`frivolousness for an abuse of discretion, but if the frivolousness determination
`
`turns on an issue of law, we review the determination de novo. See Fogle v.
`
`Pierson, 435 F.3d 1252, 1259 (10th Cir. 2006). A complaint is frivolous if “it
`
`- 7 -
`
`

`
`lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S.
`
`319, 325 (1989).
`
`We review de novo the district court’s Rule 12(b)(6) dismissal. See
`
`Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1191 (10th Cir.
`
`2009). “A district court may dismiss a case sua sponte under Federal Rule Civil
`
`Procedure 12(b) when it is ‘patently obvious’ that the plaintiff could not prevail
`
`on the facts alleged.” Andrews v. Heaton, 483 F.3d 1070, 1074 n.2 (10th Cir.
`
`2007) (quotation marks and citation omitted).
`
`Because Mr. McGinnis is proceeding pro se, we construe his pleadings
`
`liberally, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), but we will not assume
`
`the role of advocate for a pro se litigant. Hall v. Bellmon, 935 F.2d 1106, 1110
`
`(10th Cir. 1991).
`
`
`
`After reviewing the record, we conclude that Mr. McGinnis’ claims of
`
`electromagnetic torture are delusional and unsupported by any factual basis. The
`
`district court did not abuse its discretion in dismissing these claims as frivolous.
`
`In addition, it is “patently obvious” that Mr. McGinnis could not prevail on the
`
`fraudulent indictment claim, as a federal court may not intervene in ongoing state
`
`criminal proceedings, absent unusual circumstances—none of which are present
`
`here. See Younger v. Harris, 401 U.S. 37 (1971).
`
`Accordingly, we affirm the dismissal of Mr. McGinnis’s complaint. We
`
`deny all pending motions, including his motion to proceed in forma pauperis on
`
`- 8 -
`
`

`
`appeal, and order him to pay his filing fee.
`
`Entered for the Court
`
`Paul J. Kelly, Jr.
`Circuit Judge
`
`- 9 -

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