Abraham Gladney , J R . v. PENDLETON CORRECTIONAL FACILITY and INDIANA DEPARTMENT OF CORRECTIONS

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-2182
A BRAHAM G LADNEY , J R .,
Plaintiff-Appellant,
v.
P ENDLETON C ORRECTIONAL F ACILITY and I NDIANA
D EPARTMENT OF C ORRECTIONS ,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Terre Haute Division.
No. 00 C 268—John D. Tinder, Judge.
____________
S UBMITTED J UNE 27, 2002—D ECIDED S EPTEMBER 13, 2002
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Before POSNER , K ANNE , and E VANS , Circuit Judges.
P OSNER , Circuit Judge. A state prison inmate brought a
civil rights suit against prison officials. The district court
dismissed the suit as frivolous, 28 U.S.C. § 1915A(b)(1),
and the inmate appeals. The only issue, one we left open
in Sanders v. Sheahan, 198 F.3d 626 (7th Cir. 1999), but
think the time has come to resolve, is the standard of
appellate review of determinations of “factual” frivolous-
ness under section 1915A(b)(1). Usually suits are dis-
missed as frivolous because there is absolutely no legal
basis for the plaintiff’s claim. Sometimes, however, a suit

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2 No. 01-2182
is dismissed because the facts alleged in the complaint
are so nutty (“delusional” is the polite word) that they’re
unbelievable, even though there has been no evidentiary
hearing to determine their truth or falsity. See, e.g., Lee
v. Clinton, 209 F.3d 1025, 1025 (7th Cir. 2000); Bilal v.
Driver, 251 F.3d 1346 (11th Cir. 2001); Lawler v. Marshall,
898 F.2d 1196, 1199 (6th Cir. 1990). Stated differently but
with the same result, no evidentiary hearing is required
in a prisoner’s case (or anyone else’s, for that matter)
when the factual allegations are incredible. Blackledge v.
Allison, 431 U.S. 63, 76 (1977); United States v. McMullen,
98 F.3d 1155, 1159 (9th Cir. 1996); Peavy v. United States,
31 F.3d 1341, 1345 (6th Cir. 1994); Houston v. Lockhart, 982
F.2d 1246, 1250 (8th Cir. 1993). That was the basis of the
dismissal here. The complaint alleges that on numerous
occasions over a span of three years unnamed guards
at three different prisons unlocked the door to the plain-
tiff’s cell while he was asleep, allowing inmates to come
in and drug and sexually assault him. He slept through
all these outrages and only discovered what had hap-
pened when one day he noticed a needle mark under his
lip. When he visited the prison infirmary to have the
mark attended to, the medical personnel claimed not to
see the mark because they were trying to make him
think that he was delusional. These are copycat allega-
tions from Denton v. Hernandez, 504 U.S. 25, 27-28
(1992), and are obviously and knowingly false.
It was Denton, coincidentally, that held that a district
court’s finding of factual frivolousness under an earlier,
similarly worded statute, 28 U.S.C. § 1915(d), is to be
reviewed for abuse of discretion, a deferential standard.
True, the district judge hasn’t a great advantage over the
appellate judges when it comes to assessing the adequacy
of a complaint, but, as emphasized in Denton itself and in
a number of other cases as well, see 504 U.S. at 33; Neitzke

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No. 01-2182 3
v. Williams, 490 U.S. 319, 328 (1989); Bilal v. Driver, supra,
251 F.3d at 1349; Nasim v. Warden, 64 F.3d 951, 955 (4th
Cir. 1995); Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994)
(though only Bilal and Adams involved factual frivolous-
ness), he has some, because district judges see many more
prisoner suits, with their often bizarre allegations, than
appellate judges do. In addition, the determination that
particular factual allegations are too crazy to trigger any
sort of evidentiary proceeding (such as requiring the de-
fendants to file affidavits in support of a motion for sum-
mary judgment) is case-specific and so does not engage
the primary duty of an appellate court, which is to main-
tain the coherence and (reasonable) uniformity, as well
as the lawfulness and intelligence, of legal doctrine. See,
e.g., Buford v. United States, 532 U.S. 59, 65-66 (2001); Cooter
& Gell v. Hartmarx Corp., 496 U.S. 384, 403-04 (1990); Thomas
v. General Motors Acceptance Corp., 288 F.3d 305, 307-08
(7th Cir. 2002); United States v. Hill, 196 F.3d 806, 808
(7th Cir. 1999); Mars Steel Corp. v. Continental Bank N.A., 880
F.2d 928, 933-34 (7th Cir. 1989); United States v. Childress, 58
F.3d 693, 702-03 (D.C. Cir. 1995).
Here we pause to note that some of the cases we cited
earlier were decided not under 28 U.S.C. § 1915(d) but
under its materially identical successor, section 1915(e)(2)
(B)(i). Both old (d) and new (e)(2)(B)(i) govern all cases
in which the plaintiff is asking to be allowed to proceed
in forma pauperis, that is, without having to prepay filing
fees. Section 1915A(b)(1), in contrast, though like (e)(2)(B)(i)
enacted as part of the Prisoner Litigation Reform Act, has
a different domain: all suits by prisoners, whether or not
they seek to proceed in forma pauperis. Denton, as we
said, was decided under section 1915(d), and 1915A(b)(1)
differs in two principal respects: dismissal is mandatory
rather than discretionary, if the conditions for dismissal
such as frivolousness are met (“the court shall . . . dismiss

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4 No. 01-2182
the complaint . . . if the complaint . . . is frivolous,” 28 U.S.C.
§ 1915A(b)(1) (emphasis added)); and dismissal is with
prejudice, whereas under 1915(d) or 1915(e)(2)(B)(i) the
plaintiff could (can) proceed by paying the filing fee.
Denton v. Hernandez, supra, 504 U.S. at 34; Underwood v.
Wilson, 151 F.3d 292, 296 (5th Cir. 1998); McGore v.
Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997). Section
1915A(b)(1) does not say in so many words that dismissal
is with prejudice, but the implication is clear from the
fact that it applies to all prisoner suits, not merely those
sought to be prosecuted in forma pauperis. As the Su-
preme Court said in Denton, “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 com-
plaint making the same allegations.” 504 U.S. 34. Obvious-
ly that would be true if the suit had been dismissed be-
cause the plaintiff had failed to establish that he really
was indigent. But a suit dismissed on the ground that
it is frivolous normally cannot be refiled. As we explained
in Okoro v. Bohman, 164 F.3d 1059, 1062-64 (7th Cir. 1999),
while a frivolous suit does not engage the jurisdiction of
the district court to decide the merits of the suit, the
court has jurisdiction to determine its jurisdiction, and its
determination precludes the plaintiff from filing a new
suit with the same jurisdictional defect. See also Smith-Bey
v. Hospital Administrator, 841 F.2d 751, 758 (7th Cir. 1988).
That is the usual rule and the one applicable to section
1915A(b)(1).
Such differences as there are between section 1915
and section 1915A do not bear on the considerations
relevant to the scope of review of a finding of factual
frivolousness. The standard of review is the same under
both statutes, and it is abuse of discretion.
A FFIRMED .

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No. 01-2182 5
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—9-13-02

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