Phillips v. AT & T

365 F. App'x 960

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 17, 2010
• Docket: 09-6264
• Status: Unpublished

Opinion

ORDER AND JUDGMENT **

PAUL KELLY, JR., Circuit Judge.

Plaintiff-Appellant Victoria Phillips, appearing pro se, appeals from the district court’s dismissal of her complaint without prejudice for failure to effect service. 1 R. 46. The complaint alleges that, in June 2008, Ms. Phillips received a phone bill from AT & T with an improper $9.99 charge. 1 R. 3. Dissatisfied with AT & T’s handling of the matter, she filed this complaint seeking $45 million in damages on the theories of identity theft, fraud upon her account, wire fraud and mail fraud. 1 R. 3. A magistrate judge granted IFP status, 1 R. 16, but then the district court, after ordering the Plaintiff to show cause, 1 R. 39, dismissed the complaint for inadequate proof of service, 1 R. 46. Given the grant of IFP status, the district court was responsible for ensuring service. See Olsen v. Mapes, 333 F.3d 1199, 1204 (10th Cir.2003).

However, under 28 U.S.C. § 1915(e)(2)(B), a court may dismiss an action or an appeal that is frivolous or malicious or fails to state a claim on which relief may be granted. This is just such a case. The factual allegations contained in the complaint stray into the fanciful and delusional, see Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989), and it is certain that the com plaint lacks facial plausibility warranting the relief requested, see Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).

APPEAL DISMISSED.

** This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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.