Mike Hernandez v. George F. Denton, Director of Corrections, Paul J. Morris, Warden, Eddie Ylst, in His Official and Individual Capacity, Mr. Hartman

919 F.2d 573 Mike HERNANDEZ, Plaintiff-Appellant, v. George F. DENTON, Director of Corrections, Paul J. Morris, Warden, Eddie Ylst, in His Official and Individual Capacity, Mr. Hartman, Defendants-Appellees. Nos. 86-2139, 87-1693, 87-1694. United States Court of Appeals, Ninth Circuit. Nov. 21, 1990. Richard W. Nichols, McDonough, Holland & Allen, Sacramento, Cal., for plaintiff-appellant. Richard Thomson, Supervising Deputy Atty. Gen., Sacramento, Cal., for defendants-appellees. Before ALDISERT, * WALLACE and SCHROEDER, Circuit Judges. SCHROEDER, Circuit Judge: 1 The Supreme Court vacated our original divided disposition in this case, reported at 861 F.2d 1421 (9th Cir.1988) and remanded for further consideration in light of Neitzke v. Williams, 490 U.S. 319 , 109 S.Ct. 1827 , 104 L.Ed.2d 338 (1989). We have given further consideration after requesting briefs from the parties as to the bearing of that decision on this case. 2 The appellant, Mike Hernandez, is a prisoner proceeding in forma pauperis in suits against prison officials. At issue are the district court's dismissals of complaints alleging 42 U.S.C. Sec. 1983 violations. The district court dismissed all the claims…

concurring:

I concur for the reasons stated in my prior concurrence, Hernandez v. Denton, 861 F.2d 1421, 1427 (9th Cir.1988). For clarification, I eliminate the last ten words of the concurrence.

The Supreme Court vacated our original divided disposition in this case, reported at 861 F.2d 1421 (9th Cir.1988) and remanded for further consideration in light of Neitzke v. Williams, 490 U.S. 319 , 109 S.Ct. 1827 , 104 L.Ed.2d 338 (1989). We have given further consideration after requesting briefs from the parties as to the bearing of that decision on this case.

The appellant, Mike Hernandez, is a prisoner proceeding in forma pauperis in suits against prison officials. At issue are the district court’s dismissals of complaints alleging 42 U.S.C. § 1983 violations. The district court dismissed all the claims as “frivolous” under 28 U.S.C. § 1915 (d) and Hernandez appealed.

In our original opinions, we unanimously affirmed the district court’s dismissal of plaintiff’s procedural due process claims and his claim that prison officials violated his eighth amendment rights by depriving him of a mattress for one night. We held that no amendment could cure the defects in those allegations. See Franklin v. Murphy, 745 F.2d 1221 , 1228 n. 9 (9th Cir.1984). Those rulings are not affected by the subsequent grant of the defendants’ petition for certiorari.

In the original opinions, a…

dissenting:

The issue that divides this panel in this remand from the Supreme Court is whether the allegations contained in a pro se complaint filed by an inmate at the Atas-cadero State Hospital can ever survive the barrier imposed by 28 U.S.C. § 1915 (d) authorizing the district court to dismiss a claim filed in forma pauperis “if satisfied that the action is frivolous.” Atascadero is a state hospital for the criminally insane and mentally disordered.

The majority refuse to meet the issue head on and prefer to remand to the district court to permit this obviously very disturbed inmate to file an amended complaint. They conclude that this unfortunate state prisoner should have the opportunity “to amend the claims to provide more specific factual recitations of the time and place of each of the rapes and conduct on the part of prison officials which violated constitutional standards.”

I believe that no amendment can save Hernandez’ fanciful claims. I reiterate the views set forth extensively in my previous dissenting opinion in Hernandez v. Denton, 861 F.2d 1421, 1427-40 (9th Cir.1988) (Aldisert, J., dissenting), and would hold that no amendment of facts can cure the claims…