929 F.2d 1374 (9th Cir. 1990), 86-2139, Hernandez v. Denton

Docket Nº:86-2139, 87-1693 and 87-1694.
Citation:929 F.2d 1374
Party Name:Mike HERNANDEZ, Plaintiff-Appellant, v. George F. DENTON, Director of Corrections; Paul J. Morris, Warden; Eddie Ylst, in his official and individual capacity; Mr. Hartman, Defendants-Appellees.
Case Date:November 21, 1990
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1374

929 F.2d 1374 (9th Cir. 1990)

Mike HERNANDEZ, Plaintiff-Appellant,


George F. DENTON, Director of Corrections; Paul J. Morris,

Warden; Eddie Ylst, in his official and

individual capacity; Mr. Hartman,


Nos. 86-2139, 87-1693 and 87-1694.

United States Court of Appeals, Ninth Circuit

November 21, 1990

As Amended on Denial of Rehearing

En Banc April 10, 1991.

Page 1375

Richard W. Nichols, McDonough, Holland & Allen, Sacramento, Cal., for plaintiff-appellant.

Richard Thomson, Supervising Deputy Atty. Gen., Sacramento, Cal., for defendants-appellees.

Before ALDISERT, [*] WALLACE and SCHROEDER, Circuit Judges.

SCHROEDER, Circuit Judge:

The Supreme Court vacated our original divided disposition in this case, reported at 861 F.2d 1421 (9th Cir.1988) and remanded for further consideration in light of Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). We have given further consideration after requesting briefs from the parties as to the bearing of that decision on this case.

The appellant, Mike Hernandez, is a prisoner proceeding in forma pauperis in suits against prison officials. At issue are the district court's dismissals of complaints alleging 42 U.S.C. Sec. 1983 violations. The district court dismissed all the claims as "frivolous" under 28 U.S.C. Sec. 1915(d) and Hernandez appealed.

In our original opinions, we unanimously affirmed the district court's dismissal of plaintiff's procedural due process claims and his claim that prison officials violated his eighth amendment rights by depriving him of a mattress for one night. We held that no amendment could cure the defects in those allegations. See Franklin v. Murphy, 745 F.2d 1221, 1228 n. 9 (9th Cir.1984). Those rulings are not affected by the subsequent grant of the defendants' petition for certiorari.

In the original opinions, a majority also reversed the district court's dismissal of Hernandez' claims of rape, other physical abuse, and deprivation of footwear. The majority held that it was improper for a district court to dismiss a pro se complaint as frivolous under section 1915 unless claims were "patently meritless." We also held that the standard of "frivolousness" of section 1915(d) is not the same as the Federal Rule of Civil Procedure 12(b)(6) legal standard for dismissal for failure to state a claim. Hernandez, 861 F.2d at 1425. Relying upon this court's decision in Franklin, we held that a pro se prisoner complaint may not be dismissed under section 1915 unless it has no " 'arguable substance

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in law [or] fact.' " Hernandez, 861 F.2d at 1425, quoting Franklin, 745 F.2d at 1227.

The Supreme Court has now held in Neitzke, as a majority of us originally concluded in this case, that the standard of "frivolousness" is not the same as the Rule 12(b)(6) standard, and that a complaint should not be dismissed under section 1915 simply because it fails to state a claim. The Supreme Court cited with approval our decision in Franklin v. Murphy in holding that a complaint is frivolous when "it lacks an arguable basis either in law or in fact" and that section 1915 "embraces not only the inarguable legal conclusion, but also the fanciful factual allegation." Neitzke, 109 S.Ct. at 1831.

In this case, the most troublesome allegations are appellant's claims that he was drugged and homosexually raped over twenty times by inmates and prison officials at different prisons. Because the claims lacked factual recitations of time and place and persons responsible, the complaints failed to state rape claims upon which relief could be granted under the Rule 12(b)(6) standard. Nevertheless, because rape by prison guards or deliberate indifference by prison guards to rape by inmates would raise constitutional concerns, the claims were not patently without legal substance. Although the claims of such repeated similar events undoubtedly involved some exaggeration, a majority of us were unable to say with certainty...

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