DENTON, DIRECTOR OF CORRECTIONS OF CALIFORNIA v. HERNANDEZ

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Argument of James Ching

Chief Justice Rehnquist: We'll hear argument now on No. 90-1846, George F. Denton, Director of Corrections of California v. Mike Hernandez.

Mr. Ching.

Mr. Ching: Mr. Chief Justice, and may it please the Court:

This matter is before the Court for a second time.

The initial decision, Hernandez I, announced an exclusive judicial notice rule for determination of frivolity under section 1915(d).

This Court summarily remanded, granted the petition, remanded the case to the Ninth Circuit for determination according to the then-recent case of Neitzke.

Unknown Speaker: We didn't hear oral argument--

Mr. Ching: No, Your Honor.

Unknown Speaker: --We just held the case for Neitzke.

Mr. Ching: Yes.

You remanded it for review in light of Neitzke.

Hernandez II, the product of that remand, once again announces an exclusive judicial notice rule.

This rule is contrary to the holdings of Neitzke and is contrary to the logic of, the interpretation of 1915 in the line of cases this Court has announced beginning with McDonald and Sindram, passing through the announcement of Rule 38.9 and the recent case of Zatko.

The... it is my contention initially there is no justification for an exclusive judicial notice rule.

The Ninth Circuit has fashioned this requirement out of thin air.

It has no basis in law and is contrary to policy.

Unknown Speaker: Are you going to explain in a little more detail what is the exclusive judicial notice rule that you're referring to, Mr. Ching?

Mr. Ching: Yes, Your Honor.

The Ninth Circuit required that before a case could be determined as frivolous and in forma pauperis status rejected, reference had to be made through judicial notice to some objective negating fact which positively contramanded the allegations of the pleading.

This approach is contrary to that in Neitzke, in which this Court required that, contrary to a 12(b) motion for judgment on the pleadings, a district court had to pierce the veil and eliminate, pierce the veil of the pleadings in the complaint and eliminate the fantastic and the delusional.

Clearly the Ninth Circuit rule fails as to the fantastic.

There is no judicial notice to be made that a plaintiff is not Satan or Mohammed or a martian.

These fantastic cases prove that the exclusive judicial notice rule cannot be left in place.

The present case presents the other half of Neitzke, the delusional cases.

Within the corners of these five complaints is ample proof of a diagnosed delusional condition and of perceptions which not only defy the principles of formal logic but also defy common sense, and in fact are perfectly predictable from the initial medical diagnosis in the record.

This is an individual who is incapable of reasoning in an appropriate manner.

We do not say that because he is ill his complaints must be ignored.

But because he is ill his perceptual apparatus is seriously wanting.

Unknown Speaker: Well, Mr. Ching, do you take the view that the trial judge is to determine the credibility of the allegations made in a complaint, the factual allegations made, or do you take the position that the trial court should just determine what rational inferences can be drawn from the facts that are alleged?

Mr. Ching: The use of the term credibility I believe is an unfortunate one, my point being that there is no evaluation of a witness' testimony made within the four corners of the five complaints.

Unknown Speaker: I mean, it would seem to me that in... looking at the complaints here that perhaps it could be said that no rational inference of rapes could be made from the facts that were alleged with the exception, of course, of the affidavits submitted by Armando Esquer.

What do you do about that, where he says he witnessed sexual assaults on the complaining party?

Mr. Ching: I agree with you as to the evaluation that must be made of the unsupported allegations.

The issue of the supporting affidavits does tend to lend credibility to the allegations that are referred to--

Unknown Speaker: Well, as to that do you think in the face of the affidavit of Armando Esquer, that as to that complaint which is one of the five, that it can be dismissed--

Mr. Ching: --Your Honor, I would say--

Unknown Speaker: --as frivolous?

Mr. Ching: --on its face, read without the context of the five complaints, it would survive a frivolity determination, and indeed it might very well survive a 12(b)(5), 12(b)(6) rather.

There is a range of rationality within the complaints.

As to whether or not all would survive is a matter that I think is at first instance entrusted to the discretion of the trial court.

However, the larger context and the context to which the magistrate referred in dismissing these complaints is that the seemingly rational is in fact tainted by the less rational contained in the grouping.

Unknown Speaker: But, but when you look at the affidavit of this third party, then it seems to me you're saying that the trial judge should just make a credibility determination as to that affidavit.

Mr. Ching: Well, insofar as what the trial judge should be doing in evaluating a complaint, he should be attempting to pierce the veil, whatever that means, in Neitzke terms.

Neitzke states that a 12(b)(5), 12(b)(6) cannot be based on a credibility determination.

I believe there is an inference in Neitzke that the court is entitled to go beyond the mere surface reading of it and is entitled to take both judicial notice and to make rational connections amongst the parts of the complaints that appear before it.

The--

Unknown Speaker: Could I ask, was this dismissal here with prejudice or without prejudice?

Mr. Ching: --It was not, it was not formally stated to be either.

I believe that the Ninth Circuit intended it--

Unknown Speaker: I'm sorry.

Mr. Ching: --the denial of in forma pauperis was all the court intended.

Unknown Speaker: So you think that all we're, so you think that he could have rebrought any one of these complaints if he could pony up the money for the filing fee and--

Mr. Ching: Yes, Your Honor, I, it is--

Unknown Speaker: --I mean, that makes a big difference as to what our standard is going to be.

If all we're doing is excluding somebody from the IFP, it seems to me it's one thing, but if you think the dismissal means he can't rebring it, then maybe we ought to have a higher standard.

Mr. Ching: --The dismissal is one which simply denies IFP.

I see no greater significance to it.

The Ninth Circuit has in fact taken the position by requiring not only the objective judicial notice rule, but also the de novo review on appeal, and also the reporting requirements to the inmate, that is reporting to the inmate how the complaint is deficient, that no subjectivity should enter into this process.

I think that is fundamentally contrary to the position set forth in the cases that relate to 39.8, excuse me, 38.9... 39.8... in any case, this Court's rule regarding frivolity.

The term frivolous is inherently subjective.

It is inherently judgmental.

It is, it can only be based--

Unknown Speaker: Well, do you read any of our cases as saying that a complaint is frivolous if it has a legally sustainable basis?

Mr. Ching: --Certainly not.

This Court has always adhered to the rule that the frivolous case is one that is inarguable in law or fact.

This, in a case that presented an arguable legal claim--

Unknown Speaker: Because it would seem to me that most of the cases under 39.8 are cases that are just not sustainable as a matter of law.

Mr. Ching: --Well, Your Honor--

Unknown Speaker: I don't know what precedential value you can get from those cases.

We haven't stated any standard to the contrary of what the respondent argues here.

Mr. Ching: --The standard set forth in 39.8 is the same that is set forth in 1915(d), and is perfectly consistent with any theory that this Court has inherent power to order its own business.

Unknown Speaker: Yes, but the standard for frivolity in a petition for certiorari to this Court may be quite different when applied on facts from the standard of frivolity applied to a complaint filed in the district court.

Mr. Ching: Within the terms of the rules, and of course the different subject matter and jurisdiction of the courts, that may be true.

However, frivolous seems to have a unitary meaning within the three contexts.

The 1915 use of frivolous seems to be the same as in 39.8.

Unknown Speaker: I don't understand the realm of discretion and subjectivity you're arguing.

I take it you mean that what might pass one district judge wouldn't pass another so far as this rule is concerned?

Mr. Ching: I believe that would be one consequence of a discretionary interpretation of frivolity, and yet I believe we have to entertain a discretionary interpretation of frivolity because there is no substantial means to assure a perfectly uniform result in each application to the various district courts.

The suggestion has been made by the United States that the terms used in Rule 11, not well grounded in law, are interpretable or applicable to the frivolity determination in 1915(d).

This is a rule that has its basis in the arguments that were pointed out in the dissents, that the fundamental basis for requiring a frivolity determination is to ensure that an economically feasible litigation comes before the court.

Rule 11 attempts to apply some kind of economic calculus to the actions of counsel in bringing litigation and it relies on, it has a well-formed case law which in fact could be applicable to the determination of frivolity in this instance.

Unknown Speaker: Rule 11 is really premised on the idea of sanctions, frequently monetary sanctions--

Mr. Ching: Yes.

Unknown Speaker: --imposed against counsel, perhaps, and in some cases perhaps clients, and the fact that one is seeking to proceed IFP pretty well negates the idea that sanctions of that sort are going to be used.

Mr. Ching: It's my understanding that the United States' position applies only to the importation of the test itself and rather than the utilization of sanctions.

Certainly it would be futile against indigent plaintiffs.

However, the attempt to require plaintiffs to make that decision or be held to that standard is a unitary one.

If the Court has no further questions I would like to reserve my time for rebuttal.

Unknown Speaker: Very well, Mr. Ching.

Mr. Nichols, we'll hear from you.

Argument of Richard W. Nichols

Mr. Nichols: Mr. Chief Justice, and may it please the Court:

Section 1915 is a statute of general applicability to poor persons.

It is a statute enacted in support of a congressional goal that access to the courts should be equally available to the poor as well as to the rich.

It is not a statute which applies only to prisoner or civil rights cases such as this case is, and, as the Chief Justice has indicated, it is not a sanction statement, statute.

In balancing the right of access under Section 1915 against caseload concerns that district courts obviously have that moved Congress to authorize dismissals for frivolousness under the statute, it is desirable that district courts be afforded an objective standard... this is one of the substantial differences between the petitioner and the respondent in this case... an objective standard pursuant to which they can determine whether particular factual allegations have an arguable basis and therefore are not frivolous.

This Court has already partially determined an objective standard in Neitzke, namely the standard that the claim must have a, quote, arguable basis, unquote, in law and fact.

Arguable does not mean reasonable chance of succeeding according to the viewer.

Arguable in the view of the respondent means whether any rational fact-finder could conclude that the allegations are true.

Unknown Speaker: Doesn't arguable almost, you think of it as an adjective used to modify something dealing with law rather than facts.

Mr. Nichols: Certainly that is the sense in which it is most frequently used, but the Court's definition of the standard in Neitzke applied the same definition, arguable basis, to both law and fact.

And it seems to the respondent that in trying to figure out what an arguable basis is, Mr. Chief Justice, that a rational fact-finder would be the one to determine whether a particular factual argument is or is not arguable.

Unknown Speaker: Are you inserting a whole layer of some sort of determination different from a motion to dismiss or a motion for summary judgment?

Mr. Nichols: It's essentially, essentially akin to a motion for summary judgment procedure, although not necessarily having to be brought by motion.

The Neitzke case clearly establishes that motions to dismiss and frivolousness dismissals are different in kind.

And if I may respond to Justice Scalia's earlier question, it is the respondent's view, it is my view that a frivolousness dismissal constitutes a factual determination of frivolousness which would preclude the bringing of a second action on the same claims if the plaintiff could get together the money to pay the filing fee.

Unknown Speaker: And yet Neitzke certainly allows the district court or the magistrate, whoever is the initial determiner, to probe beyond the surface allegations.

You don't have to treat it the way you do a dismiss, where a motion to dismiss or all properly pleaded facts are treated as true.

Mr. Nichols: Absolutely, and--

Unknown Speaker: So what more can the district court do, in your view, than it can do on a motion to dismiss, which is virtually nothing so far as well pleaded facts?

Mr. Nichols: --Well, the district court can require a number of, impose a number of procedural requirements to require the plaintiff to get away from pleading conclusions and plead evidentiary material, heightened facts, so that the district court can determine, prior to the plaintiff coming in for an evidentiary credibility determination, whether the pleadings with those items of evidence would be sufficient to enable a rational fact-finder to conclude that there was something worth proceeding on to the credibility point.

Unknown Speaker: The rule, the section as written contemplates some dismissals without further leave to amend or anything else, don't you think?

Mr. Nichols: It certainly contemplates dismissals without leave to amend.

I suppose that there are some types of allegations that are so outlandish on their face that no rational fact-finder could ever conclude, no matter how much opportunity to amend was granted, that they would, that they could survive.

Unknown Speaker: Well, Mr. Nichols, some of the allegations here may fall in that category, I would suggest.

Mr. Nichols: Well, some of them... I will certainly admit, Justice O'Connor, that quite a number of them fail to survive a 12(b)(6) test at this point, and it may be on amendment--

Unknown Speaker: Well, they may fail to allow a rational inference to be drawn as to some of them.

Mr. Nichols: --Well, Mr. Hernandez has never been given an opportunity to amend in respond, in response to the Ninth Circuit's view of what he ought to be able to do.

We don't know what he might try to do by way of amendment.

If I may give you an example, let's assume a prisoner says I was raped by Robin Hood and his merry men.

Clearly an irrational allegation on its face.

However, if you superimpose on that the possibility of a prisoner alleging that there had been a prison show about Robin Hood and some of the other inmates had kept some of the clothing and the other inmates in that clothing had come in, maybe it's not quite so irrational.

Unknown Speaker: What if you were--

Mr. Nichols: And the notice point, it seems to me, is a kind of a due process thing that if you're going to throw a plaintiff out with prejudice he ought to have an opportunity to plead his best case.

And when we're talking about pro se plaintiffs we can almost presume that they haven't pled their best case in the first instance.

Unknown Speaker: --Mr. Nichols, in your response to Justice O'Connor you said that some of the allegations here would not survive a 12(b)(6) motion, as if you were, that were a more extreme test than 1915.

I had thought that just the opposite was true, that some allegations of fact that would survive a 12(b)(6) test could be thrown out on the grounds of fantasy or delusion in a way that we have never said a 12(b)(6) motion would reach them.

Mr. Nichols: Your Honor, what I had in mind in response to Justice O'Connor was Mr. Hernandez has brought in the director of the prison system, he has brought in the warden, and he has not pled anything remotely close to personal responsibility on the part of those people.

Unknown Speaker: But... you were not then addressing the 28 rape claims, assuming responsible--

Mr. Nichols: I will go a little farther than that, Mr. Chief Justice.

Some of the rape claims say I suspect.

I don't know who did it, but guard Perdoni was on the shift at the time it happened.

I would be perfectly prepared to concede that that does not constitute a sufficient allegation against the unknown guard or the speculative guard to survive a 12(b)(6) motion in terms of an allegation of personal responsibility for a specific act.

But what the Ninth Circuit has done has been to say a lot of these allegations probably don't survive a 12(b)(6), but it is the rule of our circuit that, as Mr. Ching has referred to it, the notice rule, that before the Ninth Circuit will dismiss a case under 12(b)(6) with prejudice it requires that a pro se plaintiff be given notice of the deficiency and an opportunity to amend.

Unknown Speaker: --Well, it--

--Was this a dismissal under 12(b)(6)?

Mr. Nichols: No, it was not.

This was a dismissal under 1915.

Unknown Speaker: Well, did you just misspeak yourself?

Mr. Nichols: No.

What I said, what I intended to say, Justice White, was that the Ninth Circuit in reversing the 1915 dismissal pointed out that many of these allegations as they stood would not survive a 12(b)(6), but that the district court ought to give the plaintiff, Mr. Hernandez, an opportunity to replead in light of its discussion of those legal deficiencies so that he could attempt to avoid those 12(b)(6) deficiencies.

Unknown Speaker: Well, what about 1915?

What did they say about 1915?

Mr. Nichols: They said that 1915 required them to be able to take judicial notice that no rapes occurred, and they could not do that.

Unknown Speaker: Well, the state is challenging that standard for dismissing under 1915.

Mr. Nichols: The state, as I understand it, is contending that the district court has absolute and standardless discretion to dismiss under 1915.

Unknown Speaker: Well, anyway, they disagree with the Ninth Circuit on 1915.

Mr. Nichols: Certainly.

Unknown Speaker: They do.

Well, are you going to argue about that?

Are you going to get to that sometime?

Mr. Nichols: Yes, Justice White.

It is my view that a 1915 dismissal cannot be justified unless the court can make a determination that no rational fact-finder could ultimately conclude that the allegations of the complaint are worthy of belief.

Unknown Speaker: But even Robin Hood and his merry men does not qualify for that in your view?

Mr. Nichols: In my view Robin Hood and his merry men without any other facts does not, would be dismissible under 1915.

Unknown Speaker: Would not?

Mr. Nichols: Would.

Unknown Speaker: It would?

Mr. Nichols: Yes.

But what I am saying is that--

Unknown Speaker: Why is that?

Mr. Nichols: --if you superimpose additional facts on top of that, then maybe you can start dealing with a mentally ill prisoner who perceives matters perhaps a little differently than you and I might perceive them, articulates them a little differently--

Unknown Speaker: I understand, but what... your bottom line is I can dismiss it as a district judge?

A guy comes in and says I have been raped by Robin Hood and his merry men--

Mr. Nichols: --If that is all he says--

Unknown Speaker: --That's all he says.

Mr. Nichols: --That's all he says--

Unknown Speaker: I don't have to let him amend?

Mr. Nichols: --That's my bottom line.

Unknown Speaker: Why don't I have to let him amend?

Mr. Nichols: I am sorry.

If I can back up for a moment, Justice Scalia.

If that's all he says and he doesn't attempt to amend.

If he attempts to... he ought to be given notice, in my view, that it is the court's intent to dismiss under 1915 unless he amends to set forth some additional facts that carry with them an indicia of rationality.

Unknown Speaker: But the Ninth Circuit disposed of the 1915 issue on the requirement of judicial notice.

Mr. Nichols: That's correct.

Unknown Speaker: And then the remand wasn't in connection with 1915, it was the 12(b)(6).

Mr. Nichols: I believe the remand was on both issues.

Unknown Speaker: Well, what were they going to remand?

Oh, I mean the remand for giving him a chance to amend was on 12(b)(6).

Mr. Nichols: They were going to give him a chance to amend to cure the 12(b)(6) deficiencies and to--

Unknown Speaker: And?

Mr. Nichols: --and to amend to cure what appeared to be irrational allegations as they stood.

Unknown Speaker: Under--

Mr. Nichols: Under 1915.

Unknown Speaker: --If one reads 1915(d) in connection with Rule 56 for summary judgment in a civil case, Rule 12(b)(6), motion to dismiss, it is supposed to open the possibility, one would think, and I think Neitzke supports this, of a judge, before the complaint is served or answered, at a very, very early stage, to dismiss a certain small class of cases even though they might state, if the facts were believed, they might state a legal claim.

Now, if one tacks on the notice requirement that the Ninth Circuit is talking about, the leave to amend, it loses all its usefulness.

A judge is far, a trial judge is far better off saying I'll never use 1915, we'll just get the state to respond, file a motion for summary judgment, and decide it that way.

It seems to me, with all the baggage that you say 1915 carries with it, it is virtually useless.

Mr. Nichols: Mr. Chief Justice, the posture that we take is that a district judge can do all of those things prior to service and prior to requiring that an answer or responsive pleading be filed by a defendant.

Unknown Speaker: But the district court will have taken up a considerable amount of its time in doing those things.

It would have perhaps taken less time to simply say let the state answer, file a motion for summary judgment, we'll have that argued, I'll decide it then.

Mr. Nichols: Well, it seems to us, Mr. Chief Justice, that the district court is required to take a look at each of the allegations.

For example in this case there are some allegations that respectfully are not irrational in my view under anybody's test.

Unknown Speaker: No one doubts the district court must take a look at each of the allegations, but the question is may the district court dismiss some allegations as frivolous without any ifs, ands, or buts about it?

Mr. Nichols: I believe that the district court may not do so unless and until a plaintiff has been given a knowing opportunity to present his best evidentiary case to the court.

And if he can't pass muster at that time then the district court can dismiss without having to have process served.

Unknown Speaker: What if he, what if the court does all of that and after doing that 99 of the allegations are clearly frivolous, they are of the Robin Hood category, and there is one that, yeah, it could have happened, most unlikely in the company of these 99 other absolutely mad allegations.

The court has to let that one go forward, you think, and couldn't say this is a ridiculous, frivolous suit, out of here?

Mr. Nichols: That is our view, Justice Scalia.

The court does have to let that one go forward.

Unknown Speaker: Well, why is that?

It seems to me... do you know any other provision that is phrased this way?

It doesn't say it may dismiss if the action is frivolous or malicious.

It says it may dismiss if satisfied that the action is frivolous or malicious.

I think that--

Mr. Nichols: I know of no other statute that has that--

Unknown Speaker: --Don't you think that has a flavor of, look, use your common sense, district judge.

This is something that doesn't have to be accorded, the ability to bring suit without paying the filing fees.

If you're satisfied that it's a frivolous suit, dismiss it without prejudice, and if he wants to pay money to make these frivolous claims he can do it.

Mr. Nichols: --Well, there is two questions there as I see it, Justice Scalia.

Number one is that this is not a refusal in the first instance by the district court to permit this complaint to be filed under section 19(a).

The district court did permit these complaints to be filed and specifically found that it could not find on the face of each separate complaint that it was frivolous.

And the 1915(d) dismissal order was entered only after the district court looked at all of these case, related them all together and dismissed them on the basis of one is not incredible but 28 is, in effect.

Unknown Speaker: Dealing with a mentally disturbed person, and that there was not much reason to believe that any of these complaints was valid.

And it would seem to me a very reasonable determination by the district court.

Mr. Nichols: It is our view, Justice Scalia, that that type of a rationale puts you on the slippery slope of essentially denying to mentally ill persons as a class the right of access to the court because any mentally ill person is going to be to some degree unable to state a claim that would not be subject to that type of criticism.

Unknown Speaker: It's not a denial of access to the courts.

It's a denial of the special privilege of being able to come to court without paying the money.

Right?

You can always still file it if you can pay the filing fee.

Mr. Nichols: But that privilege was granted here.

This is a second step after that privilege was granted by the district court.

Unknown Speaker: Does the district court have any discretion under 1915(a) if the affidavit is filed?

I don't read that section as requiring any determination of merit or likely merit by the district court.

Mr. Nichols: Well, there is an argument to be made, and I don't believe it is a proper argument, but there is an argument to be made that in section 1915(a) the use of the word may, the district court may authorize the filing without prepayment of fees, constitutes an empowerment to the district court to refuse to authorize such a filing even if the affidavit of poverty conclusively establishes poverty eligibility.

That is not the case that we are dealing with here, however, because the district court in this case did grant leave.

Unknown Speaker: May I ask you a question, Mr. Nichols?

I'm not sure that I understand your argument to be the same as the theory of the Ninth Circuit, and that's what I want to be sure I--

Mr. Nichols: It is not 100 percent the same, Justice Stevens.

Unknown Speaker: --Well, specifically in the case of an allegation that one would call fantastic or delusional scenarios, men from Mars, little green men doing things to someone.

They wouldn't require notice to dismiss that kind of a complaint, as I understand it.

Mr. Nichols: Well, where I perceive my difference from the Ninth Circuit, Justice Stevens, is that the Ninth Circuit relied on a judicial notice concept that the facts alleged were not subject to reasonable dispute.

Now that to me is an evidentiary test, and the test that I am arguing to this Court is a test that is measured at the stage of the fact-finder or the ultimate determiner of the action, not an evidentiary test.

And in that sense it is a test that is closer, I believe, to the summary judgment test that the Court has articulated in Matsushita and Celotex.

Unknown Speaker: I'm still a little... I'm not sure we're on the same wave length here, that's what's bothering me.

In order to affirm the Ninth Circuit one would not have to hold that in the category of fantastic or delusional scenarios, they treat those separately, that notice is required.

You may argue that notice is desirable in those cases, but the Ninth Circuit didn't hold that.

Mr. Nichols: That's correct, Your Honor.

Unknown Speaker: And what they said, that this is a case which seems highly improbable but there is enough corroboration... Justice O'Connor mentioned the affidavit and some of these things... that they alleged 28 rapes, well, maybe one occurred, who knows, that you can't, you don't put it in the fantastic or delusional category, but in the factual category.

Then they say there is notice required.

Mr. Nichols: They... I don't think the Ninth Circuit imposes a notice requirement in 1915 at all.

Unknown Speaker: Okay--

Mr. Nichols: What the Ninth Circuit does do is to require that all of the alleged facts be considered to be true unless judicial notice to the contrary can be taken.

Unknown Speaker: --And judicial notice, for example, would be if they were men from Mars, we would take judicial notice that that's fantastic and we can dismiss without looking any farther.

Mr. Nichols: Right.

Unknown Speaker: But if you've got something that on its face is not totally improbable you don't dismiss on its face--

Mr. Nichols: That's absolutely correct.

Unknown Speaker: --without requiring a response.

Mr. Nichols: That's absolutely correct, Justice Stevens.

Unknown Speaker: Mr. Nichols, your test is what?

It's an absolute... isn't it all relative?

The men from Mars?

I mean, Robin Hood is dead, I suppose, but men from Mars?

There may be men from Mars, you know.

Do we really know that there aren't?

Mr. Nichols: Well, I think that's--

Unknown Speaker: If somebody came in with a paid complaint alleging some cause of action that depended upon that, you know--

Mr. Nichols: --I think that's what judges sort out, Justice Scalia.

Unknown Speaker: --So it's not an absolute impossibility test.

It's just what seems to you to be likely or not, right?

Mr. Nichols: No.

Not what seems to the individual district judge.

What any rational fact-finder could determine.

I go back here and I rest very strongly on the test in the summary judgment cases, that the rational fact-finder is the test, and that's not--

Unknown Speaker: You are irrational if you allow the possibility that there exist creatures on Mars?

Mr. Nichols: --I'm sorry?

Unknown Speaker: You're irrational if you entertain that possibility?

Is that--

Mr. Nichols: In the present state of knowledge in this society I think that is true.

Unknown Speaker: --If you entertain the possibility?

Mr. Nichols: There is nothing that I am aware of--

Unknown Speaker: My goodness.

I'm glad you weren't on board with Columbus.

Mr. Nichols: --I'm sorry?

Unknown Speaker: I'm glad you were not on board with Columbus.

I mean, you know, they would have said the same thing about the round earth, I suppose.

Mr. Nichols: Well--

Unknown Speaker: Don't feel badly about this, Mr. Nichols.

You can stick with it if you like.

Mr. Nichols: --I suppose that Columbus was putting up some of his own money in connection with the ships that he sailed west on and not asking entirely for the crown's fisc on it.

Unknown Speaker: Spain didn't have a section 1915(d).

Mr. Nichols, it seems to me what you have come back to, though, is that you say this is the same as a summary judgment standard.

I'm not sure that I discern any difference.

Mr. Nichols: That... I think that is essentially right.

Where there is a difference is--

Unknown Speaker: But if you say that then don't you run contrary to what we said in Neitzke?

Mr. Nichols: --I am sorry, Justice Kennedy.

Unknown Speaker: If you say that isn't that contrary to our case in Neitzke where we said there is a difference?

Mr. Nichols: Neitzke dealt with the distinctions between 1915(d) and 12(b)(6), not distinctions between 1915(d) and summary judgement.

12(b)(6) you have to accept as true the facts that are alleged.

Summary judgment you can probe those facts to the degree that if you conclude that no rational fact-finder could support a conclusion you can grant summary judgment, even though there is a scintilla of evidence to the contrary.

And that is the, that is the test that I am proposing.

Unknown Speaker: What is the standard of review?

Do you have a position on that?

What--

Mr. Nichols: Yes, Justice Scalia.

The standard--

Unknown Speaker: --Is it de novo entirely or abuse of discretion?

What?

Mr. Nichols: --I would propose a de novo standard or review because what we are talking about here is judging the viability or nonviability of written documents.

It's not like a Rule 11 situation where you are inquiring into the reasonableness of an investigation under the circumstances.

Unknown Speaker: Even though it says if satisfied, the court may do it if satisfied that the action is frivolous?

Mr. Nichols: It seems to me that the if satisfied test of absolute standardless discretion would do precisely what Mr. Ching conceded to Justice O'Connor would happen, namely allow a district judge in Michigan to handle exactly the same allegations as a district judge in Texas in completely opposite ways.

And--

Unknown Speaker: That may be the case, but that's always the case when you apply an abuse of discretion standard.

If there is discretion it means things can be done differently in different districts.

Mr. Nichols: --Well--

Unknown Speaker: But you have no explanation for the words if satisfied that then.

It may as well have read, as far as your case is concerned, if the action is frivolous or malicious, which is not what it says.

Mr. Nichols: --That's correct, Your Honor.

I do not have an explanation.

Unknown Speaker: You don't defend the Ninth Circuit's standard, and I suppose we could, if we don't agree with it either I suppose we could just remand and say make up another one, or we could say here's what the right standard is.

And we could say and by the way, the respondent proposed a standard that we think isn't too bad, so we're going to remand and have you decide the case under that standard.

Mr. Nichols: It--

Unknown Speaker: Is that what we should do?

Mr. Nichols: --I'd take it a step further, Justice White.

Unknown Speaker: You wouldn't have us apply your standard up here?

Mr. Nichols: I would not have you apply my standard up here.

I would have you remand the case to the Ninth Circuit with directions to remand it to the district court to apply that standard.

Unknown Speaker: Or, if we don't agree with your standard, whatever standard we come up with should go back to the district court?

Mr. Nichols: Whatever standard you come up with ought to go back to the district court, and it ought to be a standard that is applied to each specific factual claim and not just simply to the complaints as a whole.

Unknown Speaker: The United States seems to think that the lower courts are at sea after Neitzke.

They don't, they're all over the lot.

Is that right?

Mr. Nichols: I don't know that I would argue with that.

Unknown Speaker: All right.

Thank you.

Thank you, Mr. Nichols.

Mr. Ching, do you have rebuttal?

You have 16 minutes remaining.

Rebuttal of James Ching

Mr. Ching: Your Honor, I would suggest that the Court was correct in stating that there has been an accretion of miscellaneous procedures, all of them unauthorized by law, such as the Spears and Martinez reports, such as holding these complaints in some file, such as requiring or in fact encouraging fact pleading rather than notice pleading in these instances.

These measures are inappropriate for this lowest tier of decisions to be made by the district court.

Neitzke pointed out there is a difference between summary judgment and 1915(d).

Similarly there is a difference between 1915(d) and summary... and a motion to dismiss.

1915(d) has a purpose.

It is presumptively supposed to do something.

It is supposed to screen frivolous cases out.

This is not a decision that requires a panoply of procedures, nor does it require adversaries be summoned to report on the true facts of the situation.

Unknown Speaker: May I ask you, Mr. Ching, what your understanding of the Ninth Circuit rule is?

Is it not true that they think there's a category of cases called fantastic or delusional that the district judge can just dismiss out of hand?

Mr. Ching: Yes.

But my interpretation of the words, in reading both opinions, is that fantastic and delusional must be established by judicial notice.

Unknown Speaker: Right.

If they, in other words if they take judicial notice of the fact that even though it's possible, as Justice Scalia points out, the probability that there are men from Mars in this particular prison is sufficiently remote that the judge can take judicial notice of the improbability and therefore go ahead and dismiss?

Mr. Ching: I believe I must disagree with that.

It is a rational attempt to make sense of what the Ninth Circuit says.

However, judicial notice is quite clear.

We have a rule that states what judicial notice can be taken of.

Unknown Speaker: What is it?

Mr. Ching: Well, it states that there is permissive and mandatory judicial notice available of such facts in a general group that are beyond question, statutes of the United States--

Unknown Speaker: Which negate the allegations of the complaint?

Is that it?

Mr. Ching: --Yes.

And so by extension I find it very difficult to think that a court could in good faith take judicial notice that there are no martians.

Therefore we're left--

Unknown Speaker: What do you suppose we meant when we referred... that comes out of Neitzke, I think, the fantastic or delusional scenarios.

Do you think, what do you think we meant by that?

Mr. Ching: --I think the Court did in fact mean Mars.

It meant--

Unknown Speaker: We didn't mean judicial notice though?

Mr. Ching: --You certainly did not, Your Honor.

You meant exactly the opposite.

You meant a subjective common sense determination, ab initio, without an accretion of procedures.

Unknown Speaker: But what is it, maybe I miss it in the Ninth Circuit, what is it in the Ninth Circuit opinion that tells us that even in the kind, the martian type delusional case they are not going to dismiss?

I don't understand the judicial notice argument in that particular context.

Mr. Ching: Well, I must say I find it very difficult to understand it as well.

Unknown Speaker: I thought what they said was that there are allegations here that have some factual support, and there is enough factual support that we'll send them back and have the district judge take a look at them.

Mr. Ching: Exactly.

Well, judicial notice is the wrong term.

This is--

Unknown Speaker: They don't use that term, do they?

Mr. Ching: --Yes, they do.

Unknown Speaker: Do they?

Mr. Ching: In both opinions.

They are quite firm and they refer to the rule itself.

This is the problem.

Unknown Speaker: You're right.

Mr. Ching: The problem is the term of art cannot be utilized in this context with any rational, legitimate administrative justification.

There is no judicial notice possible that there are no martians.

Hence Mr. Hernandez will prosecute a martian complaint.

Certainly if it's well pleaded it will go through 12(b)(5), 12(b)(6) rather.

If it's, if the people cannot produce evidence, the defendants, that there are no martians, it passes summary judgment.

We have to go to trial and ask the jury what essentially the judge should have done in the first place.

We will have to ask the jury whether it's rational to believe there are martians who are prosecuting, who are, with the aid of the Department of Corrections, persecuting--

Unknown Speaker: And if they put a martian on the stand the jury might believe them.

Mr. Ching: --Very well.

And imagine discovery, you know.

The problems are rife, and the problems arise because the trial court under the Ninth Circuit doctrine is not given sufficient leeway to make these rational decisions.

Unknown Speaker: And your point is if a martian is, can be determined delusional, it's not too much of a jump to say that these allegations of repeated rapes while he was asleep without his awaking are pretty close to the same category?

Mr. Ching: I would say within the context of these five, yes.

He supplied us his entire medical data.

We know he is a diagnosed psychotic.

We know he is taking drugs for this condition.

Unknown Speaker: Yeah, but what do you do about the affidavit of the eye witness?

Mr. Ching: I am prepared to admit there is a range of possibilities that he can create and he has created.

Any lawyer worth his salt can figure out which ones are going to have the best chance of succeeding.

Unknown Speaker: So do you say the complaint nevertheless should have been dismissed in its entirety?

Mr. Ching: Yes.

I believe that--

Unknown Speaker: I haven't, I don't understand that.

Mr. Ching: --There is a smaller context, and with great solicitude you can isolate any one of these pleadings and make sense of them.

But you're not required to interpret this in an isolated context.

When a complaint comes to the court it is to consider the whole complaint.

Unknown Speaker: But just because the fellow is psychotic doesn't mean he's not going to be raped.

Mr. Ching: Oh, certainly not.

My point here, though, is this particular psychosis is one that affects perception and the ability to deal and frame complaints which have some basis in reality.

Well, I am perfectly pleased to submit the matter at this point.

Chief Justice Rehnquist: Thank you, Mr. Ching.

The case is submitted.

Unknown Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.

Print this transcript Transcript: 

Argument of Speaker

Mr. Speaker: The opinion and judgment in Denton against Hernandez will be announced by Justice O'Connor.

Argument of Justice O'Connor

Mr. O'Connor: This case comes to us on certiorari to the United States Court of Appeals for the Ninth Circuit.

The respondent, Hernandez, a prisoner proceeding pro se, filed five civil rights suits in forma pauperis against the petitioner, the California Prison Officials, alleging, among other things, that he was drugged and homosexually raped while he slept a total of 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 pursuant to 28 United States Code Section 1915(d) which allows Federal Courts to dismiss an in forma pauperis complaint if satisfied that the action is frivolous.

The Court of Appeals reversed and remanded.

The lead opinion concluded that a court can dismiss a complaint as factually frivolous only if the allegations conflict with judicial and noticeable facts, and that it was impossible to take judicial notice that none of the alleged rapes occurred.

The Court of Appeals adhered to its position when this Court remanded the case for consideration of our intervening decision in Neitzke versus Williams which held that an in forma pauperis complaint is frivolous under Section 1915(d) where it lacks an arguable basis either in law or in fact.

We hold, in the opinion filed today, that the Court of Appeals incorrectly limited the power granted the court to dismiss a frivolous case under the federal in forma pauperis statute.

In Neitzke, we held that Section 1915(d) gives the courts the unusual power to pierce the vale of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.

Thus, the court is not bound to accept without question the truth of the plaintiff's allegations.

Although a complaint cannot be dismissed simply because the court finds the allegations to be improbable or unlikely, a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible.

Because the frivolousness determination is a discretionary one, we also hold that it was error for the Court of Appeals to review the District Court's dismissal de novo rather than for abuse of discretion.

The case is remanded to the Court of Appeals for application of the proper standard.

Justice Stevens has filed a dissenting opinion which is joined by Justice Blackmun.