Gary Don Mcgee, Plaintiff-appellant, v. Larry A. Fields and Frank Keating, Defendants-appellees, 91 F.3d 159 (10th Cir. 1996)

ORDER AND JUDGEMNT^* 

Plaintiff Gary Don McGee, a state prisoner proceeding pro se and in forma pauperis, appeals the dismissal of his § 1983 complaint. The district court dismissed the complaint under 28 U.S.C. § 1915(d), finding that it was legally frivolous. We affirm.

McGee brought this suit under § 1983, claiming that the Oklahoma Prison Overcrowding Emergency Powers Act (the "Act"), Okla. Stat. Ann. tit. 57, §§ 570-576 (West 1991 & Supp.1996), is unconstitutional because it denies emergency time credits to violent offenders. The district court referred the suit to a magistrate judge pursuant to 28 U.S.C. § 636(b) (1) (B) for initial proceedings. The magistrate judge recommended that McGee's suit be dismissed as frivolous because this court had previously upheld the Act against claims identical to those advanced by McGee. See Shifrin v. Fields, 39 F.3d 1112, 1114 (10th Cir. 1994); Keeton v. Oklahoma, 32 F.3d 451, 452 (10th Cir. 1994). After de novo review, the district court adopted the magistrate judge's Report and Recommendation. McGee appeals.

"Mindful that pro se actions are held to a less stringent standard of review and that sua sponte dismissals are generally disfavored by the courts, we nonetheless allow a complaint to be dismissed under § 1915(d) 'if the plaintiff cannot make a rational argument on the law and facts in support of his claim.' " Yellen v. Cooper, 828 F.2d 1471, 1475 (10th Cir. 1987 (quoting Van Sickle v. Holloway, 791 F.2d 1431, 1434 (10th Cir. 1986). We review a district court's dismissal under section 1915(d) for an abuse of discretion. Denton v. Hernandez, 112 S. Ct. 1728, 1734 (1992).

As the magistrate judge correctly noted, McGee's challenge to the Act is clearly foreclosed by the decisions of this court in Shifrin and Keeton. Because McGee's claims clearly have no basis in law, the district court did not abuse its discretion in dismissing his complaint under section 1915(d). See Neitzke v. Williams, 490 U.S. 319, 325 (1989) (holding that in forma pauperis complaint is frivolous if it embraces an "inarguable legal conclusion" or a "fanciful factual allegation"). The judgment of the United States District Court for the Western District of Oklahoma is therefore AFFIRMED.