Hall v. Bellmon

Decision Date03 June 1991
Docket NumberNo. 90-6326,90-6326
PartiesKenneth E. HALL, Jr., Plaintiff-Appellant, v. Henry BELLMON, Governor; Robert H. Henry, Attorney General; Gary Maynard; Steven Kaiser; Captain E. Smith; Sgt. B. Jones; Buddy Honaker; Two Unnamed Guards, Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Kenneth E. Hall, Jr., pro se.

Robert H. Henry, Atty. Gen. of Okl., and Karin M. Kriz, Asst. Atty. Gen. of Okl., Oklahoma City, Okl., for defendants-appellees.

Before LOGAN, MOORE and BALDOCK, Circuit Judges.

LOGAN, Circuit Judge.

Pro se plaintiff Kenneth E. Hall, Jr. appeals the district court's dismissal of his claim that the policies and procedures of the Lexington Assessment and Reception Center (LARC), as well as the actions of LARC employees, violated his First Amendment right to free exercise of religion. He contends that the district court applied the wrong legal standards in dismissing his case, improperly relied on evidence not in the pleadings, and failed to give proper notice and opportunity for discovery. 1


Because all are relevant to our discussion of the issues, we summarize here the procedure and law applicable to the three most common pretrial points at which a district court may dispose of a pro se complaint.


First, if the plaintiff is proceeding in forma pauperis, a court "may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious." 28 U.S.C. Sec. 1915(d). A Sec. 1915(d) dismissal may be sua sponte when "on the face of the complaint it clearly appears that the action is frivolous or malicious." Henriksen v. Bentley, 644 F.2d 852, 854 (10th Cir.1981); see also Neitzke v. Williams, 490 U.S. 319, 324, 109 S.Ct. 1827, 1831, 104 L.Ed.2d 338 (1989). 2 The term "frivolous" refers to "the inarguable legal conclusion" and "the fanciful factual allegation." Neitzke, 490 U.S. at 325, 109 S.Ct. at 1831. The purpose of Sec. 1915(d) is "to discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits that paying litigants generally do not initiate...." Id. at 327, 109 S.Ct. at 1832-33.

In contrast to Fed.R.Civ.P. 12(b)(6), which authorizes dismissal whenever a complaint fails to state a claim on which relief can be granted "without regard to whether [the claim] is based on an outlandish legal theory or on a close but ultimately unavailing one," Sec. 1915(d) authorizes dismissal of "a claim based on an indisputably meritless legal theory." Neitzke, 490 U.S. at 327, 109 S.Ct. at 1833. "[W]henever a plaintiff states an arguable claim for relief, dismissal for frivolousness under Sec. 1915(d) is improper, even if the legal basis underlying the claim ultimately proves incorrect." McKinney v. Oklahoma, 925 F.2d 363, 365 (10th Cir.1991) (emphasis in original) (citing Neitzke, 490 U.S. at 328, 109 S.Ct. at 1833). Examples of claims based on inarguable legal theories include those against which the defendants are undeniably immune from suit and those alleging an infringement of a legal interest that clearly does not exist. Neitzke, 490 U.S. at 327, 109 S.Ct. at 1832-33.

Section 1915(d) also gives the district court "the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Id. Clearly baseless factual allegations are those that are "fantastic" or "delusional." Id. at 327-28, 109 S.Ct. at 1832-33. The concern that pro se litigants have notice and opportunity to avoid dismissal of their legitimate claims by amending and supporting their pleadings militates against equating Sec. 1915(d) and Rule 12(b)(6) standards, id. at 329-30, 109 S.Ct. at 1834; that same concern forbids equating Sec. 1915(d) and Fed.R.Civ.P. 56 summary judgment standards. A plausible factual allegation, even if it lacks evidentiary support, is not "frivolous" as contemplated by Sec. 1915(d), even though it may not survive a motion for summary judgment.

When the pro se plaintiff is a prisoner, a court-authorized investigation and report by prison officials (referred to as a Martinez report) is not only proper, but may be necessary to develop a record sufficient to ascertain whether there are any factual or legal bases for the prisoner's claims. Martinez v. Aaron, 570 F.2d 317, 318-19 (10th Cir.1978); see also Gee v. Estes, 829 F.2d 1005, 1007 (10th Cir.1987). Telephone evidentiary hearings before a judge or magistrate may serve the same purpose as a Martinez report. Gee, 829 F.2d at 1008. Although a court may consider the Martinez report in dismissing a claim pursuant to Sec. 1915(d), id. at 1007, it cannot resolve material disputed factual issues by accepting the report's factual findings when they are in conflict with pleadings or affidavits. Reed v. Dunham, 893 F.2d 285, 287 n. 2 (10th Cir.1990); El'Amin v. Pearce, 750 F.2d 829, 832 (10th Cir.1984); Sampley v. Ruettgers, 704 F.2d 491, 493 n. 3 (10th Cir.1983). A bona fide factual dispute exists even when the plaintiff's factual allegations that are in conflict with the Martinez report are less specific or well-documented than those contained in the report. Because pro se litigants may be unfamiliar with the requirements to sustain a cause of action, they should be provided an opportunity to controvert the facts set out in the Martinez report.


Second, the court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). The complaint should not be dismissed for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (footnote omitted); Meade v. Grubbs, 841 F.2d 1512, 1526 (10th Cir.1988); Grider v. Texas Oil & Gas Corp., 868 F.2d 1147, 1148 (10th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 76, 107 L.Ed.2d 43 (1989). A court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Meade, 841 F.2d at 1526; Morgan v. City of Rawlins, 792 F.2d 975, 978 (10th Cir.1986). If matters outside the pleadings are considered by the court, the Rule 12(b)(6) motion is treated as a motion for summary judgment and disposed of pursuant to Fed.R.Civ.P. 56. Fed.R.Civ.P. 12(b); Reed, 893 F.2d at 287 n. 2. Although dismissals under Rule 12(b)(6) typically follow a motion to dismiss, giving plaintiff notice and opportunity to amend his complaint, a court may dismiss sua sponte "when it is 'patently obvious' that the plaintiff could not prevail on the facts alleged, and allowing him an opportunity to amend his complaint would be futile." McKinney, at 365 (citations omitted).

A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); see also Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976); Gillihan v. Shillinger, 872 F.2d 935, 938 (10th Cir.1989). We believe that this rule means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements. 3 At the same time, we do not believe it is the proper function of the district court to assume the role of advocate for the pro se litigant.

The broad reading of the plaintiff's complaint does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based. Not every fact must be described in specific detail, Conley, 355 U.S. at 47, 78 S.Ct. at 102-03, and the plaintiff whose factual allegations are close to stating a claim but are missing some important element that may not have occurred to him, should be allowed to amend his complaint, Reynoldson v. Shillinger, 907 F.2d 124, 126-27 (10th Cir.1990). Nevertheless, conclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based. Dunn v. White, 880 F.2d 1188, 1197 (10th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 871, 107 L.Ed.2d 954 (1990); Sooner Products Co. v. McBride, 708 F.2d 510, 512 (10th Cir.1983); Clulow v. Oklahoma, 700 F.2d 1291, 1303 (10th Cir.1983), overruled on other grounds sub nom, Garcia v. Wilson, 731 F.2d 640 (10th Cir.1984), aff'd, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985); Wise v. Bravo, 666 F.2d 1328, 1333 (10th Cir.1981); Lorraine v. United States, 444 F.2d 1, 2 (10th Cir.1971). This is so because a pro se plaintiff requires no special legal training to recount the facts surrounding his alleged injury, and he must provide such facts if the court is to determine whether he makes out a claim on which relief can be granted. Moreover, in analyzing the sufficiency of the plaintiff's complaint, the court need accept as true only the plaintiff's well-pleaded factual contentions, not his conclusory allegations. Dunn, 880 F.2d at 1190 (quoting Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir.1984)).


Third, the court may grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A motion for summary judgment that is supported by affidavits or other materials provided under oath gives the adverse party notice that summary judgment is possible; the adverse party...

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