Slip opinion

NOTE: Where it is feasible, a syllabus
(headnote) will be released, as is being
done in connection with this case, at
the time the opinion is issued.  The
syllabus constitutes no part of the
opinion of the Court but has been pre-
pared by the Reporter of Decisions for
the convenience of the reader.  See
United States v. Detroit Lumber Co., 200
U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

          Syllabus

DENTON, DIRECTOR OF CORRECTIONS OF CALIFORNIA, et al. v. HERNANDEZ
certiorari to the united states court of appeals for the ninth circuit

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 paupe-
ris against petitioner California prison offi-
cials, alleging, inter alia, that he was drugged
and homosexually raped 28 times by various
inmates and prison officials at different insti-
tutions.   Finding that the facts alleged ap-
peared 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 pau-
peris 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 pre-
cedent required that Hernandez be given notice
that his claims were to be dismissed as frivo-
lous 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. Wil-
liams, 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 plain-
tiff's allegations.  However, in order to respect
the congressional goal of assuring equality of
consideration for all litigants, the initial as-
sessment of the in forma pauperis plaintiff's
factual allegations must be weighted in the
plaintiff's favor.  A factual frivolousness find-
ing 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 be-
cause the court finds the allegations to be
improbable or unlikely.  The ``clearly baseless''
guidepost need not be defined with more preci-
sion, 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 com-
plaint.  Pp.5-7.
2.Because the frivolousness determination is
a discretionary one, a 1915(d) dismissal is
properly reviewed for an abuse of that discre-
tion.  It would be appropriate for a court of
appeals to consider, among other things, wheth-
er 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 intel-
ligent appellate review, and whether the dis-
missal was with or without prejudice.  With re-
spect to the last factor, the reviewing court
should determine whether the district court
abused its discretion by dismissing the com-
plaint 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 judi-
cata effect on frivolous 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 opportuni-
ty to amend the complaint to overcome any defi-
ciency unless it is clear that no amendment can
cure the defect.  Pp.7-9.
929 F.2d 1374, reversed and remanded.

O'Connor, J., delivered the opinion of the Court,
in which Rehnquist, C. J., and White, Scalia, Ken-
nedy, Souter, and Thomas, JJ., joined.  Stevens,
J., filed a dissenting opinion, in which Blackmun,
J., joined.
Opinion

NOTICE: This opinion is subject to formal
revision before publication in the pre-
liminary print of the United States
Reports.  Readers are requested to
notify the Reporter of Decisions, Su-
preme Court of the United States, Wash-
ington, D.C. 20543, of any typographical
or other formal errors, in order that
corrections may be made before the
preliminary print goes to press.


SUPREME  COURT OF THE UNITED STATES--------
         No. 90-1846
          --------
GEORGE F. DENTON, DIRECTOR OF CORRECTIONS OF
  CALIFORNIA, et al., PETITIONERS v.
            MIKE HERNANDEZ
on writ of certiorari to the united states
court of appeals for the ninth circuit
             [May 4, 1992]

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 pro-
tects 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.  28
U. S. C. 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.
                   I
Petitioners are fifteen officials at various
institutions in the California penal system.
Between 1983 and 1985, respondent Mike Hernandez,
a state prisoner proceeding pro se, named peti-
tioners as defendants in five civil rights suits
filed in forma pauperis.  In relevant part, the com-
plaints in these five suits allege that Hernandez
was drugged and homosexually raped a total of 28
times by inmates and prison 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 in-
mates stepped inside his cell.  I did not see
Officer McIntyre order these two black in-
mates 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 McIntyre returned to lock inmate Mike
Hernandez's cell door after the two black
inmates stepped out.  I watch[ed] all this
activity from the hallway and my cell door.
``On January 27th, 1984, I was again on my way
to the shower, when I noticed the same correc-
tional officer as he unlocked inmate Mike
Hernandez's cell door, and also saw as two
black inmates stepped inside inmate Mike
Hernandez's cell.  Then I knew right away that
both they and Officer McIntyre were up to no
good.  After this last incident, I became con-
vinced that Officer McIntyre was deliberately
unlocking my friend, Mike Hernandez's cell as
he [lay] asleep, so that these two black in-
mates could sexually assault him in his cell.
Exhibit H in No. CIV S-85-0084, Brief for
Respondent 9.
Hernandez also attempted to amend one complaint
to include an affidavit signed by fellow inmate
Harold Pierce, alleging that on the night of July
29, 1983, he ``witnessed inmate Dushane B-71187
and inmate Milliard B-30802 assault and rape
inmate Mike Hernandez as he lay . . . asleep in bed
206 in the N-2 Unit Dorm.''  See Exhibit G to Motion
to Amend Complaint in Hernandez v. Denton, et al.,
No. CIV S-83-1348 (June 19, 1984), Brief for Re-
spondent 6.
The District Court determined that the five
cases were related and referred them to a magis-
trate, who recommended that the complaints be
dismissed as frivolous.  The magistrate reasoned
that  each complaint, taken separately, is not
necessarily frivolous, but that  a different
picture emerges from a reading of all five com-
plaints together.  Id., at 11.  As he explained:
 [Hernandez] alleges that both guards and in-
mates, at different institutions, subjected him to
sexual assaults.  Despite the fact that different
defendants are allegedly responsible for each
assault, the purported modus operandi is identical
in every case.  Moreover, the attacks occurred
only sporadically throughout a three year period.
The facts thus appear to be `wholly fanciful' and
justify this court's dismissal of the actions as
frivolous.  Ibid.  By order dated May 5, 1986, the
District Court adopted the recommendation of the
magistrate and dismissed the complaints.
Hernandez appealed the dismissal of three of the
five cases (Nos. CIV S-83-0645, CIV S-83-1348, CIV
S-85-0084; see n. 1, supra).  Reviewing the dis-
missal de novo, the Court of Appeals for the Ninth
Circuit reversed and remanded.  Hernandez v.
Denton, 861 F. 2d 1421 (1988).  In relevant part,
Judge Schroeder's lead opinion concluded that a
district court could dismiss a complaint as factu-
ally frivolous only if the allegations conflicted
with judicially noticeable facts, that is, facts
 `capable of accurate and ready determination by
resort to sources whose accuracy cannot reason-
ably be questioned.'''  Id., at 1426 (quoting Fed.
Rule Evid. 201).  In this case, Judge Schroeder
wrote, the court could not dismiss Hernandez's
claims as frivolous because it was impossible to
take judicial notice that none of the alleged
rapes occurred.  861 F. 2d, at 1426.  Judge Wallace
concurred on the ground 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 to remedy the
deficiencies.  Id., at 1427.  Judge Aldisert dis-
sented.  He was of the opinion that the allega-
tions were  the hallucinations of a troubled man,
id., at 1440, and that no further amendment could
save the complaint.  Id., at 1439-1440.
We granted petitioners' first petition for a writ
of certiorari, 493 U. S. 801 (1989), vacated the
judgment, and remanded to the Court of Appeals
for consideration of our intervening decision in
Neitzke v. Williams, 490 U. S. 319 (1989).  On remand,
the Court of Appeals reaffirmed its earlier
decision.  929 F. 2d 1374 (1991).  Judge Schroeder
modified her original opinion to state that judi-
cial notice was just  one useful standard for
determining factual frivolousness under 1915(d),
but adhered to her position that the case could
not be dismissed because no judicially noticeable
fact could contradict Hernandez's claims of rape.
Id., at 1376.  Judge Wallace and Judge Aldisert
repeated their earlier views.
We granted the second petition for a writ of
certiorari to consider when an in forma pauperis
claim may be dismissed as factually frivolous
under 1915(d).  502 U. S.  (1991).  We hold that
the Court of Appeals incorrectly limited the power
granted the courts to dismiss a frivolous case
under 1915(d), and therefore vacate and remand
for application of the proper standard.  II
In enacting the federal in forma pauperis stat-
ute, Congress  intended to guarantee that no
citizen shall be denied an opportunity to com-
mence, prosecute, or defend an action, civil or
criminal, in any court of the United States, solely
because . . . poverty makes it impossible . . . to
pay or secure the costs of litigation.  Adkins v.
E.I. DuPont de Nemours & Co., 335 U. S. 331, 342
(1948) (internal quotations omitted).  At the same
time that it sought to lower judicial access
barriers to the indigent, however, Congress
recognized that  a litigant whose filing fees and
court costs are assumed by the public, unlike a
paying litigant, lacks an economic incentive to
refrain from filing frivolous, malicious, or repet-
itive lawsuits.  Neitzke, supra, at 324.  In re-
sponse to this concern, Congress included sub-
section (d) as part of the statute, which allows
the courts to dismiss an in forma pauperis com-
plaint  if satisfied that the action is frivolous
or malicious.
Neitzke v. Williams, supra, provided us with our
first occasion to construe the meaning of  frivo-
lous under 1915(d).  In that case, we held that  a
complaint, containing as it does both factual
allegations and legal conclusions, is frivolous
where it lacks an arguable basis either in law or
in fact.  Id., at 325.  In Neitzke, we were con-
cerned with the proper standard for determining
frivolousness of legal conclusions, and we deter-
mined that a complaint filed in forma pauperis
which fails to state a claim under Federal Rule of
Civil Procedure 12(b)(6) may nonetheless have  an
arguable basis in law precluding dismissal under
1915(d).  Neitzke, 490 U. S., at 328-329.  In so
holding, we observed that the in forma pauperis
statute, unlike Rule 12(b)(6),  accords judges not
only the authority to dismiss a claim based on an
indisputably meritless legal theory, but also the
unusual power to pierce the veil of the complain-
t's factual allegations and dismiss those claims
whose factual contentions are clearly baseless.
Id., at 327.   Examples of the latter class, we
said,  are claims describing fantastic or delu-
sional scenarios, claims with which federal dis-
trict judges are all too familiar.  Id., at 328.
Petitioners contend that the decision below is
inconsistent with the  unusual dismissal power
we recognized in Neitzke, and we agree.  Contrary
to the Ninth Circuit's assumption, our statement
in Neitzke that 1915(d) gives courts the authori-
ty to  pierce the veil of the complaint's factual
allegations means that a court is not bound, as
it usually is when making a determination based
solely on the pleadings, to accept without ques-
tion the truth of the plaintiff's allegations.  We
therefore reject the notion that a court must
accept as  having an arguable basis in fact, id.
at 325, all allegations that cannot be rebutted by
judicially noticeable facts.  At the same time, in
order to respect the congressional goal of  ass-
ur[ing] equality of consideration for all liti-
gants, Coppedge v. United States, 369 U. S. 438,
447 (1962), this initial assessment of the in forma
pauperis plaintiff's factual allegations must be
weighted in favor of the plaintiff.  In other words,
the 1915(d) frivolousness determination, fre-
quently made sua sponte before the defendant has
even been asked to file an answer, cannot serve
as a factfinding process for the resolution of
disputed facts.
As we stated in Neitzke, a court may dismiss a
claim as factually frivolous only if the facts
alleged are  clearly baseless, 490 U. S., at 327,
a category encompassing allegations that are
 fanciful, id., at 325,  fantastic, id., at 328,
and  delusional, ibid.  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
court finds the plaintiff's allegations unlikely.
Some improbable allegations might properly be
disposed of on summary judgment, but to dismiss
them as frivolous without any factual development
is to disregard the age-old insight that many
allegations might be  strange, but true; for truth
is always strange, Stranger than fiction.  Lord
Byron, Don Juan, canto XIV, stanza 101 (T. Steffan,
E. Steffan & W. Pratt eds. 1977).
Although Hernandez urges that we define the
 clearly baseless guidepost with more precision,
we are confident that the district courts, who are
 all too familiar with factually frivolous claims,
Neitzke, supra, at 328, are in the best position to
determine which cases fall into this category.
Indeed, the statute's instruction that an action
may be dismissed if the court is  satisfied that
it is frivolous indicates that frivolousness is a
decision entrusted to the discretion of the court
entertaining the in forma pauperis petition.  We
therefore decline the invitation to reduce the
 clearly baseless inquiry to a monolithic stan-
dard.
Because the frivolousness determination is a
discretionary one, we further hold that a 1915(d)
dismissal is properly reviewed for an abuse of
that discretion, and that it was error for the
Court of Appeals to review the dismissal of
Hernandez's claims de novo.  Cf. Boag v. MacDougall,
454 U. S. 364, 365, n. (1982) (per curiam) (reversing
dismissal of an in forma pauperis petition when
dismissal was based on an erroneous legal conclu-
sion and not exercise of the  broad discretion
granted by 1915(d)); Coppedge, supra, at 446
(District Court's certification that in forma
pauperis appellant is taking appeal in good faith,
as required by 1915(a), is  entitled to weight).
In reviewing a 1915(d) dismissal for abuse of
discretion, it would be appropriate for the court
of appeals to consider, among other things,
whether the plaintiff was proceeding pro se, see
Haines v. Kerner, 404 U. S. 519, 520-521 (1972);
whether the court inappropriately resolved
genuine issues of disputed fact, see supra, at
6-7; whether the court applied erroneous legal
conclusions, see Boag, 454 U. S., at 365, n.; wheth-
er the court has provided a statement explaining
the dismissal that facilitates  intelligent appel-
late review, ibid.; and whether the dismissal was
with or without prejudice.
With respect to this last factor:  Because a
1915(d) dismissal is not a dismissal on the merits,
but rather an exercise of the court's discretion
under the in forma pauperis statute, the dismissal
does not prejudice the filing of a paid complaint
making the same allegations.  It could, however,
have a res judicata effect on frivolousness
determinations for future in forma pauperis
petitions.  See, e.g., Bryant v. Civiletti, 214 U. S.
App. D. C. 109, 110-111, 663 F. 2d 286, 287-288, n. 1
(1981) (1915(d) dismissal for frivolousness is res
judicata); Warren v. McCall, 709 F. 2d 1183, 1186, and
n. 7 (CA7 1983) (same); cf. Rogers v. Bruntrager, 841
F. 2d 853, 855 (CA8 1988) (noting that application
of res judicata principles after 1915(d) dismissal
can be  somewhat problematical).  Therefore, if it
appears that frivolous factual allegations could
be remedied through more specific pleading, a
court of appeals reviewing a 1915(d) disposition
should consider whether the District Court
abused its discretion by dismissing the complaint
with prejudice or without leave to amend.  Be-
cause it is not properly before us, we express no
opinion on the Ninth Circuit rule, applied below,
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.  E.g., Potter v. McCall, 433 F. 2d 1087, 1088
(1970); Noll v. Carlson, 809 F. 2d 1446 (1987).
Accordingly, we vacate the judgment below and
remand for proceedings consistent with this
opinion.

                       It is so ordered.


Dissent
 

SUPREME COURT OF THE UNITED STATES--------
         No. 90-1846
          --------
GEORGE F. DENTON, DIRECTOR OF CORRECTIONS OF
  CALIFORNIA, et al., PETITIONERS v.
            MIKE HERNANDEZ
on writ of certiorari to the united states
court of appeals for the ninth circuit
                                    [May 4, 1992]

Justice Stevens, with whom Justice Blackmun
joins, dissenting.
My disagreement with the Court is narrow.  I
agree with its articulation of the standard to be
applied in determining whether an in forma pauperis
complaint is frivolous under 28 U. S. C. 915(d).
Moreover, precedent supports the Court's deci-
sion to remand the case without expressing any
view on the proper application of that standard to
the facts of the case.  See, e. g., Rufo v. Inmates
of Suffolk County Jail, 502 U. S.  (1992).
Nevertheless, because I am satisfied that the
decision of the Court of Appeals is entirely
consistent with the standard announced today, I
would affirm its judgment.
