Bojidar George Bakalov v. Jimmie Lee Stewart, Janet Knudsen, R. Spencer Robinson, Lane McCooter and William Earnest

67 F.3d 312 NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order. Bojidar George BAKALOV, Plaintiff-Appellant, v. Jimmie Lee STEWART, Janet Knudsen, R. Spencer Robinson, Lane Mccooter, and William Earnest, Defendants-Appellees. No. 95-4053. United States Court of Appeals, Tenth Circuit. Sept. 20, 1995. ORDER AND JUDGMENT1 Before ANDERSON, BALDOCK, and BRORBY, Circuit Judges.2 — 1 — Plaintiff Bojidar George Bakalov, appearing pro se, appeals the district court's 28 U.S.C.1915(d) dismissal of his civil rights complaint as frivolous. We exercise jurisdiction pursuant to 28 U.S.C. 1291, and affirm. — 2 — Plaintiff filed the instant action against officials of the Utah Department of Corrections alleging numerous violations of his civil rights, 42 U.S.C.1981, 1983, 1985, including a purported denial of access to the courts. The district court granted Plaintiff's motion to proceed in forma pauperis, stayed his request for service of process, and directed him to submit an amended complaint containing sufficient facts to support his claims. Despite ample opportunity, Plaintiff failed to submit an amended complaint. Consequently, the district court sua sponte dismissed Plaintiff's complaint as frivolous. 28 U.S.C.1915(d). — 3 — The in forma pauperis statute, 28 U.S.C.1915, empowers a court to summarily dismiss a claim when (1) the legal theory upon which the claim is based is "indisputably meritless", or (2) the factual allegations supporting the claim are "clearly baseless." Neitzke v. Williams, 490 U.S. 319, 327 (1989). Clearly baseless allegations are allegations that are "fantastic," "fanciful" or "delusional." Id. at 325, 328. Because the district court is in the best position to determine when the factual allegations of a claim are clearly baseless, we review a 1915(d) dismissal under an abuse of discretion standard. Denton v. Hernandez, 504 U.S. 25, 33 (1992). — 4 — In the instant case, we conclude the district court properly dismissed the complaint as frivolous. Based upon our review of the record, the factual allegations contained in the complaint are rambling, literally incomprehensible, and clearly baseless. While we are mindful that Plaintiff's pro se pleading is to be liberally construed, this cannot spare the irrational. Id. at 32-33. Moreover, the district court gave Plaintiff an opportunity to amend his complaint after notifying him of its present deficiencies. Id. at 34. (court of appeals reviewing 1915(d) dismissal should consider whether district court provided plaintiff an opportunity to amend). Plaintiff declined to submit an amended complaint. Accordingly, the district court did not abuse its discretion in dismissing Plaintiff's complaint as frivolous under 1915(d). — 5 — AFFIRMED. Footnotes [1] This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 151 F.R.D. 470 [2] After examining the briefs and 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); 10th Cir. R. 34.1.9. The case therefore is ordered submitted without oral argument