Mike Hernandez, Plaintiff-appellant, v. George F. Denton, Director of Corrections; Paul J. Morris,warden; Eddie Ylst, in His Official Andindividual Capacity; Mr. Hartman,defendants-appellees, 966 F.2d 533 (9th Cir. 1992)

ORDER

The United States Supreme Court in Denton v. Hernandez, --- U.S. ----, 112 S. Ct. 1728, 118 L. Ed. 2d 340 (1992), vacated the judgment of this court and remanded for further proceedings in conformity with the Court's opinion.

In its opinion remanding the case to this court, the Supreme Court specifically noted that an in forma pauperis complaint may not be dismissed under 28 U.S.C. § 1915(d) "simply because the court finds the plaintiff's allegations unlikely" and that the plaintiff's factual allegations "must be weighted in favor of the plaintiff." Denton, 112 S. Ct. at 1733. The Court also listed various factors which an appeals court might consider in reviewing the district court's decision to dismiss a complaint as frivolous. These factors reflect, for example, the concern that the district court not "inappropriately resolve [ ] genuine issues of disputed fact" in the context of a frivolousness determination. See id. at 1734.

Because the Court has determined that the district court is in the "best position to determine which cases fall into th [e] category" of claims which are "clearly baseless," id., and because the district court in reaching its decision in this matter did not have the benefit of the Supreme Court's decisions in Neitzke v. Williams, 490 U.S. 319, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989), and Denton v. Hernandez, supra, or this court's decision in Noll v. Carlson, 809 F.2d 1446 (9th Cir. 1987), we VACATE the judgment below and REMAND for proceedings consistent with these opinions.