United States Court of Appeals,
Fifth Circuit.
No. 91–7290
Summary Calendar.
David Darrell MOORE, et al., Plaintiffs–Appellants,
v.
Ray MABUS, et al., Defendants–Appellees.
Nov. 2, 1992.
Appeal from the United States District Court for the Northern District of Mississippi.
Before POLITZ, Chief Judge, KING and GARWOOD, Circuit Judges.
POLITZ, Chief Judge:
David Darrell Moore and Elton Banks appeal the 28 U.S.C. § 1915(d) dismissal of their pro
se, in forma pauperis civil rights complaint, and the denial of their application for appointment of
counsel. We affirm in part, vacate the dismissal, remand for further proceedings, and direct that
counsel be appointed.
Background
Moore and Banks are inmates at the Mississippi State Penitentiary in Parchman, Mississippi.
In 1990 Moore, Banks, and Eddie Ray Gowdy1 filed a 42 U.S.C. § 1983 complaint against various
Mississippi state officials alleging, in relation to HIV-positive prisoners: (1) deliberate indifference
to serious medical needs in violation of the eighth amendment, (2) conditions of confinement in
violation of the eighth amendment, (3) violation of the fourteenth amendment right of privacy, (4)
loss of privileges in violation of fourteenth amendment due process and equal protection components,
and (5) denial of rights guaranteed by state law. The complaint also inartfully purported to be a class
action on behalf of prisoners denominated by the plaintiffs as the "fluid" class. The plaintiffs moved
for appointment of counsel.
1 Gowdy apparently has been released from prison. Following a Spears2 hearing the magistrate judge recommended dismissal as frivolous under
28 U.S.C. § 1915(d). The district court accepted the recommendation, denied the appointment of
counsel, and dismissed the complaint. Moore and Banks timely appealed.
Analysis
The district court did not have the benefit of two recent Supreme Court decisions when it
considered the instant complaint. Denton v. Hernandez3 clarified the legal standard for a finding of
factual frivolousness under section 1915(d)4 and the standard for appellate review of such a finding,
and Wilson v. Seiter5 mandated the application of the deliberate indifference standard to all conditions
of confinement cases.
Spears after Neitzke and Denton
Spears, decided some years before Neitzke and Denton, has not been reexamined in light of
these new Supreme Court teachings. Our holding in Spears that the "standard for determining the
legal sufficiency of a complaint is the same under Fed.R.Civ.P. 12 or 28 U.S.C. § 1915(d)" did not
survive Neitzke. The Neitzke Court concluded that "frivolousness in the § 1915(d) context refers to
a more limited set of claims than does Rule 12(b)(6),"6 and held that while Rule 12(b)(6) and section
1915(d) overlap, "it does not follow that a complaint which falls afoul of the former standard will
invariably fall afoul of the latter." 7 To the extent that an in forma pauperis complaint fails to state
a claim because it lacks even an arguable basis in law, Rule 12(b)(6) and section 1915(d) both counsel
dismissal. When a complaint raises an arguable question of law which the district court ultimately
finds is correctly resolved against the plaintiff, dismissal under Rule 12(b)(6) is appropriate; however,
2 Spears v. McCotter, 766 F.2d 179 (5th Cir.1985). 3 ––– U.S. ––––, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992). 4 Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989), provided the analogous guidance for a finding of legal frivolousness under section 1915(d). 5 ––– U.S. ––––, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). 6 Neitzke, 490 U.S. at 329, 109 S.Ct. at 1833. 7 Neitzke, 490 U.S. at 326, 109 S.Ct. at 1832. dismissal under the section 1915(d) frivolousness standard is not. In explaining this conclusion, the
Neitzke Court reasoned that "[a]ccording opportunities for responsive pleadings to indigent litigants
commensurate to the opportunities accorded similarly situated paying plaintiffs is all the more
important because indigent plaintiffs so often proceed pro se and therefore may be less capable of
formulating legally competent initial pleadings."8
In Denton the Supreme Court applied Neitzke dicta to draw a firm distinction between
factually and legally frivolous complaints and the appropriate section 1915(d) standard:
[A] court may dismiss a claim as factually frivolous only if the facts alleged are "clearly baseless," a category encompassing allegations that are "fanciful," "fantastic," and "delusional." As those words suggest, a finding of factual frivolousness 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. An in forma pauperis complaint may not be dismissed, however, simply because the co urt finds the plaintiff's allegations unlikely.9
The Court reaffirmed that a section 1915(d) dismissal is reviewed for abuse of discretion.10 In
determining whether a district court has abused its discretion, the appellate court may consider
whether (1) the plaintiff is proceeding in forma pauperis, (2) the court inappropriately resolved
genuine issues of disputed fact, (3) the court applied erroneous legal conclusions, (4) the court has
provided a statement of reasons which facilitates "intelligent appellate review,"11 and (5) any factual
frivolousness could have been remedied through a more specific pleading.12
We view Neitzke and Denton as mandating that a Spears-hearing record clearly distinguish
between findings of factual, legal, or mixed factual and legal frivolousness. In addition, to facilitate
a meaningful, "intelligent appellate review" the district court's reasons for a section 1915(d) dismissal
should reflect the Neitzke–Denton considerations.
8 Neitzke, 490 U.S. at 330, 109 S.Ct. at 1834. 9 Denton, ––– U.S. at –––– – ––––, 112 S.Ct. at 1733–1734, 118 L.Ed.2d at 349–350. 10 Denton, ––– U.S. at ––––, 112 S.Ct. at 1734, 118 L.Ed.2d at 350. A section 1915(d) dismissal is not a dismissal on the merits but may have res judicata effect. Id. 11 Id. 12 Denton, ––– U.S. at ––––, 112 S.Ct. at 1734, 118 L.Ed.2d at 351. The Allegations
Plaintiffs allege that: (1) during September 1989, after meeting with the prison classification
committee, Moore was upgraded to "A" level custody, assigned to the prison law library as a clerk,
and t ransferred to Unit 29–J, a minimum security unit; (2) Moore then signed a contract which
granted him certain privileges, including access to vocational classes, college, jobs, extended family
visits, gym call, nightly telephone visits, emergency leave, attendance at entertainment functions, and
other privileges; (3) in October 1989 Moore was transferred to Unit 15–B, the administrative
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United States Court of Appeals,
Fifth Circuit.
No. 91–7290
Summary Calendar.
David Darrell MOORE, et al., Plaintiffs–Appellants,
v.
Ray MABUS, et al., Defendants–Appellees.
Nov. 2, 1992.
Appeal from the United States District Court for the Northern District of Mississippi.
Before POLITZ, Chief Judge, KING and GARWOOD, Circuit Judges.
POLITZ, Chief Judge:
David Darrell Moore and Elton Banks appeal the 28 U.S.C. § 1915(d) dismissal of their pro
se, in forma pauperis civil rights complaint, and the denial of their application for appointment of
counsel. We affirm in part, vacate the dismissal, remand for further proceedings, and direct that
counsel be appointed.
Background
Moore and Banks are inmates at the Mississippi State Penitentiary in Parchman, Mississippi.
In 1990 Moore, Banks, and Eddie Ray Gowdy1 filed a 42 U.S.C. § 1983 complaint against various
Mississippi state officials alleging, in relation to HIV-positive prisoners: (1) deliberate indifference
to serious medical needs in violation of the eighth amendment, (2) conditions of confinement in
violation of the eighth amendment, (3) violation of the fourteenth amendment right of privacy, (4)
loss of privileges in violation of fourteenth amendment due process and equal protection components,
and (5) denial of rights guaranteed by state law. The complaint also inartfully purported to be a class
action on behalf of prisoners denominated by the plaintiffs as the "fluid" class. The plaintiffs moved
for appointment of counsel.
1 Gowdy apparently has been released from prison. Following a Spears2 hearing the magistrate judge recommended dismissal as frivolous under
28 U.S.C. § 1915(d). The district court accepted the recommendation, denied the appointment of
counsel, and dismissed the complaint. Moore and Banks timely appealed.
Analysis
The district court did not have the benefit of two recent Supreme Court decisions when it
considered the instant complaint. Denton v. Hernandez3 clarified the legal standard for a finding of
factual frivolousness under section 1915(d)4 and the standard for appellate review of such a finding,
and Wilson v. Seiter5 mandated the application of the deliberate indifference standard to all conditions
of confinement cases.
Spears after Neitzke and Denton
Spears, decided some years before Neitzke and Denton, has not been reexamined in light of
these new Supreme Court teachings. Our holding in Spears that the "standard for determining the
legal sufficiency of a complaint is the same under Fed.R.Civ.P. 12 or 28 U.S.C. § 1915(d)" did not
survive Neitzke. The Neitzke Court concluded that "frivolousness in the § 1915(d) context refers to
a more limited set of claims than does Rule 12(b)(6),"6 and held that while Rule 12(b)(6) and section
1915(d) overlap, "it does not follow that a complaint which falls afoul of the former standard will
invariably fall afoul of the latter." 7 To the extent that an in forma pauperis complaint fails to state
a claim because it lacks even an arguable basis in law, Rule 12(b)(6) and section 1915(d) both counsel
dismissal. When a complaint raises an arguable question of law which the district court ultimately
finds is correctly resolved against the plaintiff, dismissal under Rule 12(b)(6) is appropriate; however,
2 Spears v. McCotter, 766 F.2d 179 (5th Cir.1985). 3 ––– U.S. ––––, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992). 4 Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989), provided the analogous guidance for a finding of legal frivolousness under section 1915(d). 5 ––– U.S. ––––, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). 6 Neitzke, 490 U.S. at 329, 109 S.Ct. at 1833. 7 Neitzke, 490 U.S. at 326, 109 S.Ct. at 1832. dismissal under the section 1915(d) frivolousness standard is not. In explaining this conclusion, the
Neitzke Court reasoned that "[a]ccording opportunities for responsive pleadings to indigent litigants
commensurate to the opportunities accorded similarly situated paying plaintiffs is all the more
important because indigent plaintiffs so often proceed pro se and therefore may be less capable of
formulating legally competent initial pleadings."8
In Denton the Supreme Court applied Neitzke dicta to draw a firm distinction between
factually and legally frivolous complaints and the appropriate section 1915(d) standard:
[A] court may dismiss a claim as factually frivolous only if the facts alleged are "clearly baseless," a category encompassing allegations that are "fanciful," "fantastic," and "delusional." As those words suggest, a finding of factual frivolousness 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. An in forma pauperis complaint may not be dismissed, however, simply because the co urt finds the plaintiff's allegations unlikely.9
The Court reaffirmed that a section 1915(d) dismissal is reviewed for abuse of discretion.10 In
determining whether a district court has abused its discretion, the appellate court may consider
whether (1) the plaintiff is proceeding in forma pauperis, (2) the court inappropriately resolved
genuine issues of disputed fact, (3) the court applied erroneous legal conclusions, (4) the court has
provided a statement of reasons which facilitates "intelligent appellate review,"11 and (5) any factual
frivolousness could have been remedied through a more specific pleading.12
We view Neitzke and Denton as mandating that a Spears-hearing record clearly distinguish
between findings of factual, legal, or mixed factual and legal frivolousness. In addition, to facilitate
a meaningful, "intelligent appellate review" the district court's reasons for a section 1915(d) dismissal
should reflect the Neitzke–Denton considerations.
8 Neitzke, 490 U.S. at 330, 109 S.Ct. at 1834. 9 Denton, ––– U.S. at –––– – ––––, 112 S.Ct. at 1733–1734, 118 L.Ed.2d at 349–350. 10 Denton, ––– U.S. at ––––, 112 S.Ct. at 1734, 118 L.Ed.2d at 350. A section 1915(d) dismissal is not a dismissal on the merits but may have res judicata effect. Id. 11 Id. 12 Denton, ––– U.S. at ––––, 112 S.Ct. at 1734, 118 L.Ed.2d at 351. The Allegations
Plaintiffs allege that: (1) during September 1989, after meeting with the prison classification
committee, Moore was upgraded to "A" level custody, assigned to the prison law library as a clerk,
and t ransferred to Unit 29–J, a minimum security unit; (2) Moore then signed a contract which
granted him certain privileges, including access to vocational classes, college, jobs, extended family
visits, gym call, nightly telephone visits, emergency leave, attendance at entertainment functions, and
other privileges; (3) in October 1989 Moore was transferred to Unit 15–B, the administrative
segregation unit, and denied all privileges, including the contract privileges; (4) in November 1989
Moore and approximately 45 other HIV-positive prisoners were moved to Unit 28–D, a unit
designated for housing o f HIV-positive prisoners where the living conditions were substantially
inferior to the housing of other prisoners because of defective plumbing, vermin and insect infestation,
and building deterioration exposing prisoners to adverse weather conditions; (5) there was a lack of
physicians trained to treat HIV-related medical problems; (6) prison dentists refused to provide
HIV-positive prisoners with timely treat ment; (7) Moore did not receive adequate diagnosis and
treatment of his AIDS condition; (8) AIDS drugs were not provided; (9) some HIV-positive
prisoners remained in the general prison population; (10) privileges were denied HIV-positive
prisoners without any rational basis other t han their medical status; (11) guards failed to protect
HIV-positive prisoners; and (12) prisoner privacy rights were violated by publication of their medical
status.
We cannot determine from the complaint whether any or all of the allegations that refer to
Moore alone are intended to be class-wide. Both the magistrate judge and the district court referred
to a prior Mississippi state court action in which Moore purportedly raised the same issues and
concluded that Moore's claims were barred by the res judicata effects of the dismissal of that suit.
The state court record is not before us; we cannot address that issue.13
Legal Frivolousness
13 Accord, Denton, ––– U.S. at –––– – ––––, 112 S.Ct. at 1734–1735, 118 L.Ed.2d at 350–351. This complaint poses questions nearly identical to those faced by our Eleventh Circuit
colleagues in Harris v. Thigpen.14 Both complaints pose allegations of serious constitutional
violations related to the "range of difficult, AIDS-related issues that confront all correctional officials,
administrators, policymakers and inmates as they attempt to grapple with the problems engendered
by the presence of HIV infection in our nation's prisons and jails." When our colleagues noted the
seminal importance of Thigpen, they were not reviewing an appeal from a section 1915(d) dismissal
but one following a post-trial judgment. Reflecting the careful record development inherent in a
full-blown trial, the lengthy Thigpen opinion details the novelty and difficulty of resolution of the
issues. Thigpen does not involve the mere application of well-settled principles of law. Many of the
issues with which the Thigpen court struggled are res nova in this circuit.
Applying the Neitzke considerations for testing a finding of legal frivolousness, we conclude
that the instant case involves: (1) pro se, in forma pauperis plaintiffs; (2) instances of potentially
disputed facts resolved by the district court; (3) potentially erroneous legal conclusions by the district
court; and (4) an inability to perform an intelligent appellate review for lack of adequate record
development and because of an inadequate statement of reasons for the dismissal. For these reasons
Neitzke not only counsels, but commands a reversal of the section 1915(d) dismissal.15
Eighth Amendment Deliberate Indifference Considerations
Because of the paucity of the record, any comment that we might make with respect to the
merits of the case is subject to the suggestion of speculation. Nonetheless an observation is
warranted. Wilson does not require a "smoking gun" in order to find deliberate indifference. Nor
does Wilson attempt to define what acts might constitute deliberate indifference. Rather, the Wilson
Court reaffirmed that the determination must be made with "due regard for differences in the kind of
conduct to which an Eighth Amendment objection is lodged."16 The Court reaffirmed an earlier
holding that "[s]ome conditions of confinement may establish an Eighth Amendment violation "in
14 941 F.2d 1495 (11th Cir.1991). 15 Neitzke, 490 U.S. at 328–330, 109 S.Ct. at 1833–1834. 16 Wilson, ––– U.S. at ––––, 111 S.Ct. at 2326, 115 L.Ed.2d at 281. combination' when each would not do so alone, but only when they have a mutually enforcing effect
that produces the deprivation of a single, identifiable human need...."17
Segregation and Privacy Rights
Moore's complaint about the abridgment of his right of privacy and the loss of privileges in
violation of the fourteenth amendment due process and equal protection components are without
merit and the dismissal thereof is affirmed. Prior to the district court's ruling, on the appeal of the
temporary injunction ruling,18 we held that Moore had demonstrated no likelihood of success on the
privacy claim. Further, the identification and segregation of HIV-positive prisoners obviously serves
a legitimate penological interest.19
Appointment of Counsel
Thigpen also informs why we believe the district court erred in denying the plaintiffs' motion
to appoint counsel under Ulmer v. Chancellor.20 Thigpen demonstrates beyond cavil that (1) the type
and complexity of the issues raised in the complaint are deserving of professional development, (2)
the complex subject of HIV–AIDS management in a prison environment is beyond the ability of a
mere prisoner to investigate adequately, (3) the scope of the questions raised and the extensive
resources required to pursue properly the issues in this case far exceed the capability and resources
of a prisoner, and (4) the apparently essential testimony from experts on HIV–AIDS management in
the prison environment will require pro fessional trial skills. We are persuaded that this is an
extraordinary case in which appointment of counsel will assist the plaintiffs, the State of Mississippi,
and the court in resolving these important unanswered questions. The district court should promptly
appoint qualified counsel.
Conclusion
The denial of the motion for the appointment of counsel is REVERSED and counsel is to be
17 Wilson, ––– U.S. at ––––, 111 S.Ct. at 2327, 115 L.Ed.2d at 283 (emphasis in original). 18 Moore v. Mabus, 931 F.2d 890 (5th Cir. Apr. 16, 1991) (unpublished). 19 Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). 20 691 F.2d 209 (5th Cir.1982). appointed. The district court judgment insofar as it dismisses the privacy and loss of privileges claims
is AFFIRMED; otherwise the dismissal of the complaint as frivolous is VACATED and the case is
REMANDED for further proceedings consistent herewith.