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KENNEDY, J., dissenting

JUSTICE KENNEDY, dissenting.

By definition, the cases within the ambit of the Court's holding are confined to those in which the factual record developed in the state-court proceedings is inadequate to resolve the legal question. I should think those cases will be few in number. Townsend v. Sain, 372 U. S. 293, 318 (1963), has been the law for almost 30 years and there is no clear evidence that this particular classification of habeas proceedings has burdened the dockets of the federal courts. And in my view, the concept of factual inadequacy comprehends only those petitions with respect to which there is a realistic possibility that an evidentiary hearing will make a difference in the outcome. This serves to narrow the number of cases in a further respect and to ensure that they are the ones, as JUSTICE O'CONNOR points out, in which we have valid concerns with constitutional error.

Our recent decisions in Coleman v. Thompson, 501 U. S. 722 (1991), McCleskey v. Zant, 499 U. S. 467 (1991), and Teague v. Lane, 489 U. S. 288 (1989), serve to protect the integrity of the writ, curbing its abuse and ensuring that the legal questions presented are ones which, if resolved against the State, can invalidate a final judgment. So we consider today only those habeas actions which present questions federal courts are bound to decide in order to protect constitutional rights. We ought not to take steps which diminish the likelihood that those courts will base their legal decision on an accurate assessment of the facts. For these reasons and all those set forth by JUSTICE O'CONNOR, I dissent from the opinion and judgment of the Court.






No. 90–1846. Argued February 24, 1992—Decided May 4, 1992 Respondent Hernandez, a prisoner proceeding pro se, filed five civil rights

suits in forma pauperis against petitioner California prison officials, alleging, inter alia, that he was drugged and homosexually raped 28 times by various inmates and prison officials at different institutions. Finding that the facts alleged appeared to be wholly fanciful, the District Court dismissed the cases under 28 U. S. C. $ 1915(d), which allows courts to dismiss an in forma pauperis complaint “if satisfied that the action is frivolous.” Reviewing the dismissals de novo, the Court of Appeals reversed and remanded three of the cases. The court's lead opinion concluded that a court can dismiss a complaint as factually frivolous only if the allegations conflict with judicially noticeable facts and that it was impossible to take judicial notice that none of the alleged rapes occurred; the concurring opinion concluded that Circuit precedent required that Hernandez be given notice that his claims were to be dismissed as frivolous and a chance to amend his complaints. The Court of Appeals adhered to these positions on remand from this Court for consideration of the Court's intervening decision in Neitzke v. Williams, 490 U. S. 319, which held that an in forma pauperis complaint “is frivolous (under $ 1915(d)] where it lacks an arguable basis either in law or

in fact," id., at 325. Held:

1. The Court of Appeals incorrectly limited the power granted the courts to dismiss a frivolous case under $ 1915(d). Section 1915(d) gives the courts “the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.” Id., at 327. Thus, the court is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the plaintiff's allegations. However, in order to respect the congressional goal of assuring equality of consideration for all litigants, the initial assessment of the in forma pauperis plaintiff's factual allegations must be weighted in the plaintiff's favor. A factual frivolousness finding is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible,


whether or not there are judicially noticeable facts available to contradict them, but a complaint cannot be dismissed simply because the court finds the allegations to be improbable or unlikely. The “clearly baseless" guidepost need not be defined with more precision, since the district courts are in the best position to determine which cases fall into this category, and since the statute's instruction allowing dismissal if a court is “satisfied” that the complaint is frivolous indicates that the frivolousness decision is entrusted to the discretion of the court entertaining the complaint. Pp. 31-33.

2. Because the frivolousness determination is a discretionary one, a $ 1915(d) dismissal is properly reviewed for an abuse of that discretion. It would be appropriate for a court of appeals to consider, among other things, whether the plaintiff was proceeding pro se, whether the district court inappropriately resolved genuine issues of disputed fact, whether the court applied erroneous legal conclusions, whether the court has provided a statement explaining the dismissal that facilitates intelligent appellate review, and whether the dismissal was with or without prejudice. With respect to the last factor, the reviewing court should determine whether the district court abused its discretion by dismissing the complaint with prejudice or without leave to amend if it appears that the allegations could be remedied through more specific pleading, since dismissal under $ 1915(d) could have a res judicata effect on frivolousness determinations for future in forma pauperis petitions. This Court expresses no opinion on the Court of Appeals' rule that a pro se litigant bringing suit in forma pauperis is entitled to notice and an opportunity to amend the complaint to overcome any deficiency unless

it is clear that no amendment can cure the defect. Pp. 33–35. 929 F. 2d 1374, vacated and remanded.

O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and WHITE, SCALIA, KENNEDY, SOUTER, and THOMAS, JJ., joined. STEVENS, J., filed a dissenting opinion, in which BLACKMUN, J., joined, post, p. 35.

James Ching, Supervising Deputy Attorney General of California, argued the cause for petitioners. With him on the briefs were Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Kenneth C. Young, Assistant Attorney General, and Joan W. Cavanagh, Supervising Deputy Attorney General.

Opinion of the Court

Richard W. Nichols, by appointment of the Court, 502 U. S. 966, argued the cause and filed a brief for respondent.*

JUSTICE O'CONNOR delivered the opinion of the Court.

The federal in forma pauperis statute, codified at 28 U. S. C. $ 1915, allows an indigent litigant to commence a civil or criminal action in federal court without paying the administrative costs of proceeding with the lawsuit. The statute protects against abuses of this privilege by allowing a district court to dismiss the case “if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.” § 1915(d). In Neitzke v. Williams, 490 U. S. 319 (1989), we considered the standard to be applied when determining whether the legal basis of an in forma pauperis complaint is frivolous under $ 1915(d). The issues in this case are the appropriate inquiry for determining when an in forma pauperis litigant's factual allegations justify a $ 1915(d) dismissal for frivolousness, and the proper standard of appellate review of such a dismissal.


Petitioners are 15 officials at various institutions in the California penal system. Between 1983 and 1985, respondent Mike Hernandez, a state prisoner proceeding pro se, named petitioners as defendants in five civil rights suits filed in forma pauperis. In relevant part, the complaints in these five suits allege that Hernandez was drugged and homosexually raped a total of 28 times by inmates and prison

*Solicitor General Starr, Assistant Attorney General Mueller, and Deputy Solicitor General Roberts filed a brief for the United States as amicus curiae urging reversal.

Elizabeth Alexander, David C. Fathi, John A. Powell, Steven R. Shapiro, and Matthew Coles filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance.

Opinion of the Court

officials at different institutions.* With few exceptions, the alleged perpetrators are not identified in the complaints, because Hernandez does not claim any direct recollection of the incidents. Rather, he asserts that he found needle marks on different parts of his body, and fecal and semen stains on his clothes, which led him to believe that he had been drugged and raped while he slept.

Hernandez's allegations that he was sexually assaulted on the nights of January 13, 1984, and January 27, 1984, are supported by an affidavit signed by fellow prisoner Armando Esquer (Esquer Affidavit), which states:

“On January 13, 1984, at approximately 7:30 a.m., I was on my way to the shower, when I saw correctional officer McIntyre, the P-2 Unit Officer, unlock inmate Mike Hernandez's cell door and subsequently saw as two black inmates stepped inside his cell. I did not see Officer McIntyre order these two black inmates out of inmate Mike Hernandez's cell after they stepped inside, even though inmate Mike Hernandez was asleep inside. After about ten minutes, I returned from the shower, and I noticed my friend, Mike Hernandez, was being sexually assaulted by the two black inmates. Officer McIn

*See Amended Complaint in Hernandez v. Ylst, et al., No. CIV S-83– 0645 (Feb. 9, 1984) (alleging rape by unidentified correctional officers at California State Prison at Folsom on the night of July 29, 1982), Brief for Respondent 2–4; Motion to Amend Complaint in Hernandez v. Denton, et al., No. CIV S-83–1348 (June 19, 1984) (alleging rape by one or more prisoners at California Medical Facility at Vacaville on the night of July 29, 1983, and one additional episode in December 1983), Brief for Respondent 5; Complaint in Hernandez v. Ylst, et al., No. CIV S-84-1074 (Aug. 20, 1984) (alleging six additional druggings and rapes occurring between August 12 and November 4, 1983), Brief for Respondent 6; Complaint in Hernandez v. Ylst, et al., No. CIV S-84–1198 (Sept. 17, 1984) (alleging three additional incidents occurring between November 26 and December 12, 1983), Brief for Respondent 6-7; Complaint in Hernandez v. Ylst, et al., No. CIV S-85-0084 (Jan. 21, 1985) (alleging 16 additional incidents occurring between January 13 and December 10, 1984), Brief for Respondent 7.

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