*

 After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is

therefore 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.

FILED

United States Court of Appeals

Tenth Circuit

December 19, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

LESTER JON RUSTON,

Plaintiff-Appellant,

v.

CHURCH OF JESUS CHRIST OF

LATTER-DAY SAINTS; GORDON B.

HINCKLEY; VICTOR JAMES

RUSTON; MARGARET ELIZABETH

RUSTON; JERRY HENDERSON;

ALLISON RUSTON-SMITH; MEL

CHADWICK; IAN JAMES RUSTON;

BRAD OATES; LARRY K.

HERCULES; STATE OF TEXAS and

ROLLAND SAFE COMPANY, 

Defendants-Appellees.

No. 08-4101

District of Utah

(D.C. No. 2:07-CV-00929-TS)

ORDER AND JUDGMENT*

Before TACHA, KELLY and McCONNELL, Circuit Judges.
-2-

Lester Jon Ruston was found not guilty of a criminal charge for reason of

insanity, and is presently confined at the Federal Medical Center in Devens,

Massachusetts, which houses male offenders requiring specialized or long-term

medical or mental health care. He filed suit alleging racketeering and civil rights

violations against the Church of Jesus Christ of Latter Day Saints, various

relatives, the state of Texas, and other defendants. Mr. Ruston sought to proceed

in forma pauperis without prepayment of fees, but the district court rejected his

request pursuant to 28 U.S.C. § 1915(g). That provision of the Prison Litigation

Reform Act (“PLRA”) provides that a “prisoner” cannot proceed in forma

pauperis before paying his filing fee in full when he has at three or more times

filed a motion dismissed as “frivolous or malicious or fail[ing] to state a claim

upon which relief may be granted.” As the district court noted, Mr. Ruston has

previously filed three or more such motions. Because Mr. Ruston failed to prepay

his filing fee in full, the district court concluded that he could not proceed in

forma pauperis, and dismissed the appeal. 

Mr. Ruston argues, however, that he is not a “prisoner” within the meaning

of the Act, and therefore that the “three strikes” provision of the PLRA would not

prevent us from granting him leave to proceed in forma pauperis. Although we

have never squarely decided the issue, other courts have found that mental

patients are not “prisoners” within the meaning of the PLRA when they are

confined as a result of being found not guilty by reason of insanity. See
-3-

Kolocotronis v. Morgan, 247 F.3d 726, 728 (8th Cir. 2001); see also Troville v.

Venz, 303 F.3d 1256, 1260 (11th Cir. 2002) (finding PLRA’s definition of

prisoner “appl[ies] only to persons incarcerated as punishment for a criminal

conviction”). Nevertheless, we need not decide this issue because we have

determined that Mr. Ruston’s complaint is frivolous, and affirm the dismissal of

his complaint on that ground. 

Pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), a court is directed to dismiss an

action involving a litigant seeking to proceed in forma pauperis at any time that 

it determines that the action is “frivolous or malicious.” Although much of §

1915, by its terms, refers to prisoners, the principle is well-established that

regardless of whether a litigant seeking to proceed in forma pauperis is a prisoner

or not, a court may and should dismiss the action and refuse to appoint counsel

where the action is frivolous. See Kinney v. Plymouth Rock Squab Co., 236 U.S.

43 (1915). Indeed, we have often cited § 1915(e)(2)(B) when dismissing

litigants’ claims because frivolous, even where the litigants were not prisoners

within the meaning of the PLRA. See, e.g., Jamison v. Costco Wholesale, 280

Fed. Appx. 738 (10th Cir. 2008) (dismissing non-prisoner complaint under

Americans with Disabilities Act under § 1915); see also Hafen v. Carter, 274

Fed. Appx. 701 (10th Cir. 2008); Azubuko v. New Hampshire, 175 Fed. Appx. 975

(10th Cir. 2006). Accordingly, Mr. Ruston cannot proceed if his action is

frivolous, regardless of whether he is a prisoner within the meaning of the PLRA.
-4-

An action is frivolous under § 1915(e)(2)(B) if “the claim [is] based on an

indisputably meritless legal theory or if it is founded on clearly baseless factual

contentions.” Schlicher v. Thomas, 111 F.3d 777, 779 (10th Cir. 1997) (internal

quotations omitted). Here, Mr. Ruston contends that defendants, including the

Church of Jesus Christ of Latter Day Saints, various relatives, the state of Texas,

and others, are engaged in a conspiracy designed to, among other things, destroy

his small businesses, violate international law and the Convention Against

Torture, and commit acts of stalking, kidnaping, attempted murder, torture,

slander, robbery, bribery, and mail fraud. Mr. Ruston alleges facts including a

massive “brain washing scheme” and asserts, amongst other things, that the state

of Texas operates as a “R.I.C.O. racketeering enterprise.” Complaint 3, 5. 

After reviewing the factual basis for Mr. Ruston’s complaint, we are

satisfied that “it is founded on clearly baseless factual contentions.” Dismissal is

therefore warranted under § 1915(e)(2)(B). Accordingly, the district court’s

dismissal of his complaint is AFFIRMED on this alternative ground.

Entered for the Court,

Michael W. McConnell

Circuit Judge