Phillip Scalice, Plaintiff-appellant, v. Gary Jones; Bill Rietz; Weber Dr.; Dan Assink, et al.,defendants-appellees, 978 F.2d 715 (9th Cir. 1992)

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US Court of Appeals for the Ninth Circuit - 978 F.2d 715 (9th Cir. 1992)

Submitted Oct. 22, 1992. *Decided Oct. 27, 1992


Before SNEED, BEEZER and WIGGINS, Circuit Judges.


MEMORANDUM** 

Phillip Scalice appeals pro se the district court's dismissal pursuant to 28 U.S.C. § 1915(d) of his 42 U.S.C. § 1983 action. Scalice contends that prison officials are systematically subjecting him to noise torture in order to cause him psychiatric damage and label him mentally ill. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion, Denton v. Hernandez, 112 S. Ct. 1728, 1734 (1992), and affirm.

Frivolous in forma pauperis complaints may be dismissed sua sponte under 28 U.S.C. § 1915(d). Neitzke v. Williams, 490 U.S. 319, 324 (1989). A complaint is frivolous "where it lacks an arguable basis either in law or fact." Id. A factual claim is frivolous if "the facts alleged rise to the level of the irrational or the wholly incredible." Hernandez, 112 S. Ct. at 1733.

Scalice filed a thirty-eight page complaint alleging that he has been systematically tortured by repeated clicking and clunking noises, sometimes in response to his actions, and other times not. Scalice claimed that before the torture was begun on him, a nurse described the process as a special experiment to modify prisoners' behavior. We agree with the district court that Scalice's allegations are irrational and wholly incredible. Accordingly, the district court did not abuse its discretion in dismissing Scalice's action. See id. at 1734.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3