Mike Hernandez v. George F. Denton

ALDISERT, Circuit Judge,

concurring and dissenting:

When Mr. Monroe and his family were routed out of bed in the middle of the night *1428 by the Chicago police, and made to stand naked in their living room while the cops ransacked every room in their home, emptying drawers and ripping mattress covers, the Supreme Court took long overdue action. In Monroe v. Pape, 365 U.S. 167 , 81 S.Ct. 473 , 5 L.Ed.2d 492 (1961), the Court resuscitated, if not resurrected, the remedy of the Civil Rights Act of 1874, the now familiar 42 U.S.C. § 1983 . Since that day, this federal remedial statute has been successfully utilized to correct tens of thousands of civil rights violations of all description, in high school classrooms to maximum security wings of state prisons.

Section 1983 has been a major force in protecting the individual from countless abuses by the city, county, and state. We have become a more civilized society because of the protections it affords those under police arrest or confined to penal institutions. Thanks to section 1983, and concurrent prison reforms, we no longer tolerate the degrading experiences portrayed in film classics such as Paul Muni’s powerful role as Burns in “I Was a Fugitive from a Georgia Chain Gang,” or Paul Newman’s portrayal of “Cool Hand Luke." Nor do we tolerate the dehumanizing treatment that once existed in prisons, where an inmate was denuded of his dignity, stripped of his name, addressed by only an identification number, and constantly ran the risk of being brutally beaten or tossed into “the hole” indefinitely, at the sole whim of a prison guard.

It is with sympathy for the conditions of prison inmates, enthusiastic endorsement of the massive protection now extended to state prisoners by the filing or threat of filing of civil rights actions, and the profound sensitivity that must be extended to pro se petitions for relief, that I review the district court’s dismissal of Mike Hernandez’ complaints.

I join Judge Schroeder’s opinion to the extent that it affirms the district court’s dismissal of the procedural due process claim and the eighth amendment claim based on deprivation of a mattress. I do not agree with the analyses of the other claims set forth by Judges Wallace and Schroeder. I would affirm the judgment of the district court in all respects, for reasons other than those given by the district court.

Let it be understood at the outset that what divides this panel on the remaining claims is a very narrow issue. I do not read my colleagues’ opinions as deciding that the plaintiff’s many claims can, at this time, pass muster when measured against standards of frivolousness. I think the entire panel is unanimous in this respect. What divides us is that my colleagues seem to feel Hernandez was entitled to a second notice that his complaints were to be dismissed, and that, somehow, he ean amend his complaints again (all three complaints have been amended at least once), and make factual averments sufficient to permit him to mount the hurdle of frivolity.

Thus, we disagree only on procedure. Because Hernandez’ complaints are already fact-specific, setting forth a complete narrative of that which occurred first at Folsom prison and later at Vacaville, I believe that no amendment of facts can save the fatal deficiencies that permeate all his liability claims against the named defendants. The necessary factual predicate that forms the minor premise of his legal arguments can in no way be enlarged or altered to support a possible, let alone reasonable, inference of liability.

I.

Where a complaint fails to state a claim on which relief can be granted, there are two levels in the preliminary proceedings at which the complaint may be dismissed. The first is under the authority of 28 U.S. C. § 1915(d), even prior to service of the complaint upon the defendant. Franklin v. Murphy, 745 F.2d 1221, 1226 (9th Cir.1984) (Fr anklin). Under section 1915(d), the court may dismiss the case if satisfied that the action is frivolous. After service upon the defendant, the court may grant a motion for dismissal under Rule 12(b)(6), F.R.Civ.P.

The district court dismissed Hernandez’ rape allegations as frivolous, basing its judgment on the recommendation of a mag *1429 istrate. The magistrate decided that each complaint, when read independently of the other complaints filed by Hernandez, “is not necessarily frivolous,” ER 34 at 5, but that “a different picture emerges from a reading of all five complaints together.” Id. The magistrate relied on the test for frivolity set out in Franklin —specifically, that the concept of frivolous embraces complaints “postulating events and circumstances of a wholly fanciful kind.” Franklin, 745 F.2d at 1228 (quoting Crisafi v. Holland, 655 F.2d 1305, 1308 (D.C.Cir.1981) (per curiam)). The magistrate found Hernandez’ rape allegations “wholly fanciful” because they were reiterated in several different complaints alleging the same “modus operandi,” but involved different prison officials and inmates at different institutions.

Like my colleagues, I would not accept the reasoning of the magistrate adopted by the district court, for under the circumstances of this case, that would amount to making credibility findings on the pleadings. As Judge Schroeder correctly points out, in a section 1915(d) adjudication, we must assume the credibility of the plaintiff’s allegations unless they run counter to law, human behavior, or permissible inferences.

I would affirm the district court’s dismissal for entirely different reasons, a practice permitted in this Circuit. Hatch v. Reliance Ins. Co., 758 F.2d 409 (9th Cir.1985); Salmeron v. United States, 724 F.2d 1357, 1364 (9th Cir.1983); Angle v. United States, 709 F.2d 570, 573 (9th Cir.1983). I would hold that even if we credited every factual allegation in Hernandez’ complaints, the complaints are frivolous and no opportunity to amend can possibly cure that deficiency.

In each of the complaints at issue in the three appeals before us, Hernandez included a very detailed statement of facts. These facts, if believed, do not make out a claim “on the basis of reasonable inferences and not mere speculation.” Edward J. Sweeney & Sons, Inc. v. Texaco, 637 F.2d 105, 111 (3d Cir.1980).

The district court s dismissal of the complaints as frivolous is subject to de novo review by this court. Tripati v. First Nat’l Bank & Trust, 821 F.2d 1368, 1369 (9th Cir.1987); Rizzo v. Dawson, 778 F.2d 527, 530 (9th Cir.1985). Our role here is to determine whether, as a matter of law, the claims are critically deficient of the minimum quantum of fact, reason, and law from which the plaintiff might possibly be entitled to relief. In exercising this review, I proceed on the assumption that “plaintiff’s sworn allegations are ... uncontro-verted and entitled to the usual presumption of truth.” Franklin, 745 F.2d at 1228 .

My ultimate conclusion is that the multitude of allegations expressed in the separate complaints filed in the district court do not qualify for further consideration. I agree with the district court’s conclusion that the allegations are frivolous and therefore should be dismissed under 28 U.S.C. § 1915 (d).

II.

My point of beginning is a discussion of how the courts have interpreted the statutory term “frivolous.” “The court may dismiss the case ... if satisfied that the action is frivolous or malicious.” 28 U.S.C. § 1915 (d). The most familiar court definition of frivolous, that in Anders v. California, 386 U.S. 738 , 87 S.Ct. 1396 , 18 L.Ed.2d 493 (1967), is phrased in the negative. An-ders states that a contention is not frivolous if “any of the legal points [are] arguable on their merits.” Id. at 744 , 87 S.Ct. at 1400 . In Franklin , this court determined that an action is frivolous if it lacks “arguable substance in law and fact.” Franklin, 745 F.2d at 1227 . This Circuit has accepted the frivolity analysis formulated by the Court of Appeals for the D.C. Circuit:

A court may dismiss as frivolous complaints reciting bare legal conclusions with no suggestion of supporting facts, or postulating events and circumstances of a wholly fanciful kind. Similarly, ‘a complaint conflicting with facts of which the district court may take judicial notice might also properly be dismissed under *1430 section 1915(d).’ Taylor v. Gibson, 529 F.2d 709, 717 (5th Cir.1976).

Id. at 1228 (quoting Crisafi v. Holland, 655 F.2d 1305, 1307-08 (D.C.Cir.1981) (per curiam)).

This analysis sets out three possible standards for dismissing a complaint as frivolous: 1) does the complaint recite bare legal conclusions without supporting facts? 2) does the complaint postulate wholly fanciful events or circumstances? 3) does the complaint conflict with facts of which a court may take judicial notice? (A fourth standard — redundancy—was added by Tripati v. First Nat’l Bank & Trust, 821 F.2d 1368, 1370 (9th Cir.1987)). Judge Schroeder combines the second and third Franklin standards. She sees the “judicial notice” and the “wholly fanciful” tests as being one in the same. See Schroeder op. at 1426-27 (“Only if the facts alleged are impossible in light of any judicially noticeable fact may the district court find a complaint ‘wholly fanciful’ and hence without arguable substance in law or fact.”)

As I read Franklin , the “wholly fanciful” and “judicial notice” standards are two separate possible bases for dismissing a complaint as frivolous. Under Franklin , a court may indeed dismiss an action as frivolous if it is “dependent upon allegations which conflict with facts of which a district court may take judicial notice.” Schroeder op. at 1426. However, a court may also dismiss as frivolous an action “postulating events or circumstances of a wholly fanciful kind.” Franklin at 1228 . I find Hernandez’ allegations to be indisputably wholly fanciful.

“Frivolous,” which Webster’s Third New International defines as “of little weight or importance: having no basis in law or fact,” is derived from the Latin “friuolus,” which meant “worthless, trashy, insignificant, trifling, silly and empty.” I believe that Hernandez’ complaint comes within either the English or Latin definitions established.

I turn now to the procedures utilized in the federal courts in handling prisoner civil rights cases, and the relationship of those procedures to the determination of frivolity.

III.

As Judge Schroeder notes, this court has adopted the recommendations of the Prisoner Civil Rights Committee of the Federal Judicial Center (the Committee) relating to section 1915(d) cases:

[The Committee] recommends that the court make the frivolity determination before issuing process to protect defendants from the expense and inconvenience of answering a frivolous complaint. Federal Judicial Center, Recommended Procedures for Handling Prisoner Civil Rights Cases in the Federal Courts 59 (1980).

We find persuasive the reasoning of the cases holding that courts may dismiss frivolous actions filed in forma pauperis before service of process and adopt the procedure recommended by the Federal Judicial Center and applied here by the district court.

Franklin, 745 F.2d at 1226-27 .

Because I served as the Federal Judicial Center Committee’s chair, reference to the reasoning that undergirded the Committee’s efforts to guide federal courts in the use of section 1915(d) may be of some help. I begin with a statement of the Committee’s purposes:

First, to evaluate the handling of prisoner conditions-of-confinement cases with the purpose of recommending such changes as are desirable to increase the capacity to give prompt relief to meritorious prisoner cases.

Second, to help federal judges, magistrates, and staff personnel deal effectively and efficiently with these difficult-to-handle cases.

The Federal Judicial Center, Recommended Procedures for Handling Prisoner Civil Rights Cases in the Federal Courts xi (1980) [hereinafter “Report”]. The polestar that guided the Committee’s deliberations and hearings was to devise methods to preserve meritorious cases *1431 when faced with the statistical reality that most prisoner civil rights complaints are totally devoid of merit:

It is generally agreed that most prisoner rights cases are frivolous and ought to be dismissed under even the most liberal definition of frivolity. The Freund Report [named after Professor Paul Freund of Harvard who chaired the Study Group on the Caseload of the Supreme Court, 57 F.R.D. 573 (1972)] concluded that: “The number of these petitions found to have merit is very small, both proportionately and absolutely.” In fiscal year 1979, 9,943 of 10,301 or 96.5 percent of § 1983 cases terminated in federal court were dismissed or otherwise concluded prior to trial.

Report at 9-10 (footnotes omitted).

To understand the complex problems facing the federal judiciary today in this area, one must look at the crushing avalanche of pro se prisoner petitions that inundate our court system. No other judicial system in the world is exposed to this phenomenon, because all other systems require that court pleadings be filed by counsel. Recording the experience of only the past 20 years, we can note both the increasing number of prisoner civil rights actions filed and the minuscule percentage of those cases that reach trial:

Year Prisoner Civil Rights Cases Percentage Reaching Trial

1968 1,369 2.3

1969 1,631 2.6

1970 2,144 2.4

1971 2,260 3.3

1972 2,877 3.4

1973 3,500 4.9

1974 4,159 5.3

1975 5,033 5.8

1976 5,858 4.4

1977 6,679 5.6

1978 8,883 4.6

1979 10,301 3.5

1980 10,807 2.3

1981 13,248 4.4

1982 14,187 4.9

1983 16,434 4.8

1984 17,437 5.1

1985 17,271 4.0

1986 19,304 4.4

1987 22,127 3.9

Table C.4, Annual Reports of the Director of the Administrative Office of the United States Courts (1968-1987). As of June 30, 1987, there were 2,825 prisoner civil rights cases pending in the district courts of the Ninth Circuit, id., Table C.3A (1987), and 2,765 such cases had been terminated during the court year, id., Table C.3B (1987). Thus, in a 20-year period the cases have increased from 1,369 a year to 22,127, an ominous 1600 percent, and this Circuit has borne its proportionate share of the stress.

A.

This being so, we must bade fealty to three important goals: we must ensure that meritorious prisoner civil rights cases do not fall between the cracks. The “cry wolf!” syndrome can affect federal judges, especially district judges and magistrates, with what we may describe as a kind of jurisprudential weariness or fatigue, akin to what the Germans call Weltschmerz, that sets in from examining countless mer-itless petitions. At the same time, we must “protect defendants from the expense and inconvenience of answering a frivolous complaint.” Franklin, 745 F.2d at 1226 . Above all, we must respect our obligation to the federal judiciary to provide equal justice to all who seek relief in the federal courts and to ensure the maximum delivery of legal services to all litigants — pro se as well as those represented by counsel.

In 1980, when the case load was only half that of today, the Committee attempted to resolve these tensions by recommending that in prisoner civil rights complaints the plaintiff go beyond the requirement of ordinary notice pleading. The Committee would require the plaintiff to set forth the facts supporting his claim. Admittedly, this is a departure from the notice pleading requirement set forth in Rule 8, F.R.Civ.P., but the Committee reasoned that Rule 8 and other pleading rules were designed for cases in which the plaintiff was represented by counsel. This exception for pro se prisoner complaints was designed to assist the prisoner in setting forth at the earliest possible moment the facts that formed the basis of his complaint so that the claim could be properly evaluated. The Commit *1432 tee also reasoned that this would encourage the prisoner pro se plaintiff to tell his or her story without fear of being injured in the pleading process by not conforming to the niceties of pleading rules that were designed for the use and comprehension of persons learned in the law. Because in virtually all prisoner civil rights cases the plaintiff is pro se, we suggested Federal Judicial Center Form 1, which is now distributed to all federal district court clerk offices and to most state correctional institutions for use by inmates. Paragraph IY of Form 1 clearly instructs the plaintiff:

Statement of Claim

[State here as briefly as possible the facts of your case. Describe how each defendant is involved. Include also the names of other persons involved, dates, and places. Do not give any legal arguments or cite any cases or statutes. If you intend to allege a number of related claims, number and set forth each claim in a separate paragraph. Use as much space as you need. Attach extra sheet if necessary.]

Report at 92. The Eastern District of California, from which this appeal arises, utilizes this form. See, e.g., Civ. S-84-1074LKK. Indeed, the clerks in every district court within this circuit probably utilize the form. To assist inmates in preparing complaints, our Committee recommended that the form also be distributed to major penal institutions. The use of the form is widespread nationally and seems to be uniformly well received.

B.

The Committee also gave serious attention and detailed study to the question of dismissing complaints under section 1915(d):

Where a complaint fails to state a claim for which relief may be granted and for which no amendment can properly state such a claim, there are two levels in the preliminary proceedings where the complaint may be dismissed. The first may be under the authority of 28 U.S.C. § 1915 (d) even prior to service of the complaint upon the defendant. After service upon the defendant, the court may entertain a motion for dismissal under Rule 12(b)(6).

Report at 63 (emphasis added). The Committee recommended “dismissal with no opportunity to respond when the complaint is irreparably frivolous or malicious.” Id. at 60 , citing Worley v. California Dep’t of Corrections, 432 F.2d 769, 770 (9th Cir.1970) (no claim was stated and there was no deficiency in the allegations that could be overcome by amendment). In this respect, the Committee accepted Judge Ham-ley’s 1965 statement that a district judge may dismiss a prisoner’s civil rights complaint without opportunity to amend where “it clearly appears from the complaint that the deficiency cannot be overcome by amendment.” Armstrong v. Rushing, 352 F.2d 836, 837 (9th Cir.1965). This rule was restated in Potter v. McCall, 433 F.2d 1087, 1088 (9th Cir.1970). It has continued to be the rule in this Circuit. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir.1987); Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir.1980).

It is on this narrow ground that my colleagues and I part company in all three appeals. They require the district judge to give additional notice of his intention to dismiss and advise the plaintiff of his right to amend his complaint once again. I take the position that (1) the plaintiff already had notice of the court’s intention to dismiss — he was served with a copy of the magistrate’s findings and recommendations of dismissal under section 1915(d), to which he filed exceptions, and (2) given the specific nature of the plaintiff’s theories of liability, the factual deficiencies in his complaints “cannot be overcome by amendment.” Noll, 809 F.2d at 1448 ; Potter, 433 F.2d at 1088 ; Armstrong, 352 F.2d at 837 .

I will now address the specifics of Hernandez' complaints. In each of the complaints, Hernandez followed to the letter the Committee’s recommended Form 1, provided by the Eastern District of California. In each complaint, he set forth a section captioned “Statement of Facts.” This *1433 point is critical. Hernandez did not rely on notice pleading in describing his claims.

IV.

These are excerpts from Hernandez’ Statement of Facts in his complaint alleging sexual assault by prison guards at Folsom Prison:

1. Plaintiff alleges that he was sexually assaulted and raped by correctional officers in cell 1303, building 2, on the night of July 29, 1982, and during the early morning hours of July 30, 1982, during the first watch.

2. On the 30th day of July, 1982, plaintiff discovered evidence and signs of rape on his clothing, specifically a tee-shirt. On that same morning, on his way back from breakfast, to building 2, plaintiff overheard several correctional officers and inmates who work as tier tenders, taunting and ridiculing him. They were telling each other that plaintiff was getting raped in prison, and that plaintiff was raped the night before.

3. On or about the 5th day of August, 1982, plaintiff was interviewed_ At this interview, plaintiff complained to both Lieutenant Gonzalez and the other members of the committee that he had found signs and evidence of rape and sexual assault on his clothing. Plaintiff displayed his tee-shirt to the committee members, so they could see some feces stains....

4. Plaintiff further alleges that normally he does not sleep as many hours as he had slept on the night of July 29, 1982, for on that specific night he went to sleep early, at approximately 8:00 P.M., and did not wake up until after ten (10) hours, the following morning, at approximately 6:00 A.M. Plaintiff normally sleeps five (5) hours without awakening, but on the night of July 29,1982, he slept about twice as much as he normally sleeps.

ER 43 at 5-6.

In this complaint, Hernandez alleges a rape by unknown correctional officers on the basis of putative inferences only. There is no direct evidence that a rape occurred. Hernandez concludes he was raped because he found fecal stains on his teeshirt, slept later than usual, and received taunts from fellow inmates. He suggests that he could not have known about the actual victimizing of his body because he slept ten hours that night instead of his normal five. Thus, he would like us to draw two inferences: that he was drugged, and that because he was drugged, he was not aware he had been raped by unknown correctional officers.

A.

An inference is a process by which one proposition (a conclusion) is arrived at and affirmed on the basis of one or more other propositions, which are accepted as the starting point of the process. Stebbing suggests that an “[inference ... may be defined as a mental process in which a thinker passes from the apprehension of something given, the datum, to something, the conclusion, related in a certain way to the datum, and accepted only because the datum has been accepted.” 1 Whether an inference is deductive or inductive depends upon the nature of the relationship between the proposition that is given and the proposition that is inferred. Hernandez asks us to draw an inductive inference, a conclusion from a congeries of particulars. From the particular facts asserted in his complaint, he asks us to draw the conclusion by induction that the defendants can be held liable.

But whether an inference is valid, that is, whether the conclusion is sound and free from flaw, depends upon its logical force; the question of logical force is in turn based on the reasonableness of the conclusion requested to be drawn. Accordingly, inferences are permitted to be drawn in the law only to the extent that known human experience dictates that certain consequences can and do follow from basic circumstantial facts. What has been said in another context is relevant here:

*1434 The court’s role is especially crucial when, as here, the plaintiffs case, and therefore the defendant’s liability, is based solely on circumstantial evidence. The illegal action must be inferred from the facts shown at trial. Inferred factual conclusions based on circumstantial evidence are permitted only when, and to the extent that, human experience indicates a probability that certain consequences can and do follow from the basic circumstantial facts. The inferences that the court permits the jury to educe in a courtroom do not differ significantly from inferences that rational beings reach daily in informally accepting a probability or arriving at a conclusion when presented with some hard, or basic evidence. A court permits the jury to draw inferences because of this shared experience in human endeavors. See generally, McCormick, Handbook of the Law of Evidence 289-96 (2d edition 1972).

Edward J. Sweeney & Sons, Inc. v. Texaco, 637 F.2d 105, 116 (3d Cir.1980). I conclude that, under the facts pleaded here, the allegations do not qualify as sound, valid inferences. The test for a permissible inference is not whether human experience indicates a remote possibility that a particular conclusion may be drawn. Rather, the test is probability: was it more probable than not that these consequences can and do follow from the narrative or historical facts. In my view, applying the most generous of standards, the desired conclusion may not be drawn from the hard facts pleaded here. I further conclude that Hernandez can allege no other narrative facts by amendment that will permit that conclusion to be drawn.

B.

Even if we were to accept Hernandez’ inference, that he was in fact the victim of a rape, that inference still does not point to the liability of the named defendants. The Civil Rights Act, under which this action was filed, provides:

Every person who, under color of [state law] ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution ... shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983 .

The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by the plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658, 692 , 98 S.Ct. 2018, 2036 , 56 L.Ed.2d 611 (1978); see also Rizzo v. Goode, 423 U.S. 362 , 96 S.Ct. 598 , 46 L.Ed.2d 561 (1976). This court has held that “[a] person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another’s affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.1978).

The law is clear that the liability of supervisory personnel must be based on more than merely their right to control others. Monell, supra, 436 U.S. at 694 n. 58, 98 S.Ct. at 2037 n. 58. At a minimum, appellant is required to show a causal connection between the alleged harms suffered and appellees’ actions. The appellees must be shown to be responsible for setting in motion a series of acts by others, which the appellees knew or reasonably should have known would cause the others to inflict constitutional injury upon the plaintiff. Id. 743-44 .

Conclusionary allegations, unsupported by facts, [will be] rejected as insufficient to state a claim under the Civil Rights Act.... The plaintiff must allege with at least some degree of particularity overt acts which defendants engaged in that support the plaintiff’s claim.

Jones v. Community Redev. Agency, 733 F.2d 646 , 649 (9th Cir.1984) (citations omitted).

The defendants are the Director of Corrections, the prison Superintendent, and members of the disciplinary and classifica *1435 tion committees. The only “facts” supposedly establishing sexual assault were the discovery of feces on appellant’s tee-shirt and ridicule by unidentified correctional officers and inmates. No single fact whatsoever was alleged that would establish the personal involvement in any alleged rape of appellant by any of the defendants, either by way of personal participation or by way of knowledge of the participation of other inmates or correctional officers. Even if we credit every word of Hernandez’ Statement of Facts, the allegations are insufficient to hold the defendants liable because they lack the quality of arguable merit.

C.

The fatality can be precisely stated: we can infer conclusions imposing liability on the basis of circumstantial evidence only when, and to the extent that, human experience indicates a probability that certain consequences can and do follow from basic circumstantial facts. The basic relevant circumstantial facts here — sleeping late and finding fecal stains on a tee-shirt — cannot reasonably lead to the conclusion that the appellees were responsible for the alleged violations. This is fatal to Hernandez’ case and no amendment can bring it back to life. No amended statement can establish a causal connection between the alleged harms suffered and appellees’ actions.

y.

We now turn to the Folsom Prison eighth amendment claims:

14. Plaintiff alleges that he was placed in cell 812 in the security housing unit, and was forced to sleep on a sheet metal bunk without a mattress, for one night. Plaintiff was forced to borrow one blanket from inmate Raymond Rodriguez, who was housed in the cell next to his cell. Plaintiff was subjected to very uncomfortable bedding and suffered from freezing weather conditions, as he was housed in a cell, located across from broken windows.

15. Plaintiff alleges that he was denied footwear, because no officer in the security housing unit issued him a pair of shoes to wear after he was brought from the psychiatric ward; he was forced to go about without shoes for approximately thirty (30) days.

ER 43 at 8.

The eighth amendment proscribes “cruel and unusual punishments.” U.S. Const, amend, viii. This proscription embodies “broad and idealistic concepts of dignity, civilized standards, humanity, and decency,” Jackson v. Bishop, 404 F.2d 571, 579 (8th Cir.1968), against which we must evaluate penal treatment. The amendment draws its meaning from “the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 101 , 78 S.Ct. 590, 598 , 2 L.Ed.2d 630 (1958). Conduct and punishments which are incompatible with those standards, or which “involve the unnecessary and wanton infliction of pain,” are prohibited. Estelle v. Gamble, 429 U.S. 97, 102-03 , 97 S.Ct. 285, 290 , 50 L.Ed.2d 251 (1976).

Measured against these concepts, sleeping in a bunk without a mattress for one night cannot possibly rise to the dignity of an eighth amendment deprivation. Here the majority and I agree. But I disagree with Judge Schroeder’s description of the facts pleaded by Hernandez on the blanket claim: “Appellant alleges that he slept without a blanket for an unspecified amount of time in a room across from broken windows.” Judge Schroeder’s opinion at 1424. Judge Schroeder’s characterization of Hernandez’ factual pleading has no support whatsoever in the complaint. Rather, as indicated above, all Hernandez alleged was that he “was forced to borrow one blanket from Raymond Rodriguez, who was housed in the cell next to his cell.” This certainly does not qualify as an eighth amendment deprivation. Even if we assume that going without shoes for 30 days involves “the unnecessary and wanton infliction of pain,” Hernandez' allegation that an officer in the security housing unit failed to issue him a pair of shoes does not rise to a colorable claim against the defendants named here, because no one of those *1436 defendants was alleged to be the officer distributing the shoes.

Under Rizzo v. Goode, 423 U.S. 362 , 96 S.Ct. 598 , 46 L.Ed.2d 561 (1976), and Monell v. Department of Social Servs., 436 U.S. 658 , 98 S.Ct. 2018 , 56 L.Ed.2d 611 (1978), the mere right to control others, without any control or direction having been exercised, and without any failure to supervise, is not enough to support section 1983 liability. Accordingly, I believe that this eighth amendment contention is controlled by the important precept set forth in May v. Enomoto, 633 F.2d 164 (9th Cir.1980), to wit, that under the Civil Rights Act, a defendant cannot be charged with responsibility for neglectful acts of subordinates, absent that defendant’s direction or participation. Id. at 167 . The Civil Rights Act does not permit liability under respondeat superior. See Monell, 436 U.S. at 694 , 98 S.Ct. at 2037 .

I would affirm the district court’s dismissal of these claims. Although neither the magistrate nor the district judge discussed them in the written recommendations or in the opinion, it cannot be said that the district court disregarded these questions. The entire complaint was dismissed; the complaint included paragraphs 14 and 15; therefore, there can be no question that these allegations were dismissed. As a reviewing court, we are in the same position as a district court to test these contentions to determine whether they have arguable merit. In my view, they do not.

VI.

I turn now to the first Vacaville case. In his recommendations, the magistrate referred to the facts Hernandez would have alleged had he been permitted to amend his complaint. See ER 21 at 4. The district court adopted the magistrate’s findings and recommendations. I, too, shall proceed as if the proposed amended complaint were here before me:

1. On or about the 29th day of July, 1983, plaintiff alleges that he was ordered to move out of cell L-361, L-wing, unit IV, on the third floor, into the N-2 wing dorm, by Correctional Sergeant Anderson.

5. Plaintiff alleges that on the 30th day of July, 1983, he filed an inmate/parolee appeal form (602) with defendant Hartman’s and defendant Ingle’s office, wherein plaintiff complained about housing conditions and also claimed that he had found signs and evidence of sexual assault and rape on his clothing, and that he believed one or more inmates housed in the same dorm as him, assaulted and raped him on the night of July 29, 1983....

6. Subsequently, plaintiff alleges that he discovered four needle puncture wounds on different parts of his body: on the 2nd day of August, 1983, plaintiff displayed one needle wound on his right wrist to defendant Ingle; on the 3rd day of August, 1983, plaintiff displayed the same needle wound to his supervisor, at the law library, and two more needle wounds plaintiff had discovered on the calf of each leg; on the 6th day of August, 1983, plaintiff discovered a fourth needle wound on his left wrist, and displayed this needle wound to Officer Kre-ger, the N-2 wing dorm officer on the second watch, on the same day plaintiff was given permission to move out of the N-2 wing dorm and into a single-man cell in the same wing.

9. All the events described in paragraph five (5) were witnessed by inmate Harold Pierce; his affidavit is attached to this amended pleading as Exhibit G. (Exhibit G reads: “Harold Pierce hereby declares: ... On the night of July 29, 1983, I 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.”)

15. Plaintiff alleges that on or about the 15th and 16th days of December, 1983, he found signs and evidence of rape and sexual assault on his clothing and reported it to Officer B. Da Rosa on December 17, 1983....

ER 11 at 3-6.

The foregoing facts, if believed, do not make out a valid constitutional claim *1437 against the prison official defendants under either the due process clause or the eighth amendment. Again, Hernandez offers no direct evidence that he was raped. He relies only on the suggestion that somehow he was drugged and then raped while asleep. His only effective evidence is the affidavit of Harold Pierce describing events allegedly occurring on the night of July 29, 1983. That affidavit may have been sufficient to establish a state tort claim against inmates Dushane and Milliard, but it is insufficient to establish that the named defendants knew or should have known of these events and taken steps to prevent them. See Procunier v. Navarette, 434 U.S. 555, 562 , 98 S.Ct. 855, 860 , 55 L.Ed.2d 24 (1978); May v. Enomoto, 633 F.2d 164, 167 (9th Cir.1980); Johnson v. Duffy, 588 F.2d 740, 745 (9th Cir.1978).

VII.

The remaining appeal also involves events at Vacaville. In this complaint, appellant alleged he was raped as follows:

1. During the night of January 12-13, 1984, by defendant McIntyre and two inmates, based on needle marks;

2. During the night of January 26-27, 1984, also by McIntyre and two inmates, based on needle marks;

3. During the night of March 22-23, 1984, by unknown persons but believed to be defendant Perdoni, based on finding needle marks on his right wrist on the morning of March 23;

4. During the night of June 28-29, 1984, by unknown persons but believed to be defendant Perdoni, based on finding needle marks on his left arm, right wrist and right ankle on the morning of June 29;

5. On August 4 and August 23, 1984, during the 1:00 P.M.-3:00 P.M. watch, believed to be by defendant Perdoni, based on appellant’s discovery of needle marks;

6. On September 11, 1984, during the 1:00 P.M.-3:00 P.M. watch, by defendants Fitzgerald and Price, based on discovery of a needle mark on his left thumb;

7. On September 16, 1984, during the 1:30 P.M.-3:00 P.M., watch, by defendant Price, based on discovery of needle marks on his left arm and right wrist;

8. On September 21, 1984, shortly before 7:00 A.M. by defendants Perdoni and/or McIntyre, based on awakening feeling ill and nauseous and discovering needle marks on his abdomen.

9. During the night of September 26-27, 1984, by defendant McIntyre, based on awakening to discover needle marks on his left arm and abdomen;

10. On October 8, 1984, by defendant McIntyre, based on awakening to discover a needle mark on his right arm;

11. During the night of October 26-27 or 27-28, 1984, by defendant McIntyre, based on awakening on October 28 to discover needle marks on his left arm and abdomen;

12. During the night of November 22-23 or 23-24, 1984, by defendant McIntyre, based on awakening on November 25 to discover three needle marks on his left wrist;

13. During the early morning of December 5, 1984, by defendant Tomlinson, based on awakening to discover needle marks on his left arm;

14. During the early morning hours of December 9, 1984, by defendant Tomlin-son, based on awakening to discover needle marks on his left wrist and right leg; and,

15. During the early morning hours of December 10, 1984, by defendant McIntyre, based on awakening to discover a needle mark on his right arm.

Appellant also alleged that as a result of these various sexual assaults and drug injections, he suffered fevers, bacteriological skin infections, headaches, nausea, sinus infections and facial scarring, and that institutional physicians refused his request for antibiotic medication.

A.

To place this appeal in perspective, it is helpful at this point to summarize the other two appeals before us. In appeal No. 86-2139, in his amended complaint, Hernandez *1438 said he had been raped by correctional officers at Folsom Prison on July 29,1982. He reached this conclusion in the hypothesis that he found “signs of rape” on his tee-shirt, to wit, fecal stains, and that on the morning of July 30, 1982, he was ridiculed by unidentified correctional officers and inmates about having been raped the night before. He had no personal recollection of having been raped and made no identification of his supposed rapist. In appeal No. 87-1693, his proposed amended complaint contends that he was again raped — this time at Vacaville — on precisely the same day of the year as the Folsom rape, but one year later, on July 29, 1983. Again, he concluded that he had been raped because he found “evidence” of sexual assault on his clothing, viz, feces and semen stains on his shirts. He also claimed that he found a needle wound on his right wrist on August 2,1983; two needle wounds, one on each of his two legs, on August 3, 1983; and another needle wound on August 6, 1983. This time he alleged that his rapists were inmates, not correctional officers. Here, too, he had no personal knowledge of having been raped and made no identification of his alleged rapists.

B.

I now turn to an analysis of the massive complaint involving events at Vacaville in 1984. Here, Hernandez alleged that he had been raped 21, repeat 21, times. Hernandez named the Superintendent of the California Medical Facility at Vacaville, a correctional lieutenant, and six correctional officers as defendants. Of the alleged 21 acts of rape, four were allegedly committed by inmates. Although Correctional Officer McIntyre supposedly committed nine of these rapes, appellant’s complaint contains no fact capable of establishing that McIntyre, directly or by inference, or any of the other defendants, assaulted him. Here, too, he has no personal recollection of having experienced these savage assaults. His conclusions are based solely on the alleged discovery of needle punctures on his body. After these repeated acts, he complained he suffered only bacteria and acne on his face.

Irrespective of the outcome of this litigation, it must be acknowledged that Hernandez has established a world record capable of qualifying for the Guinness Book of Records: the only person who has been raped 28 separate times without knowing at the time that this was happening to him. Suffice it to say, as an experienced student and researcher in prisoner civil rights petitions, I believe that these three appeals go beyond the pale of frivolity. They are sheer and utter nonsense. They can be understood only by realizing that the appellant was diagnosed at Folsom Prison as an inmate requiring psychiatric treatment, that he was ordered transferred for this purpose, and that at the time of these appeals he is a patient at the Atascadero State Hospital. See ER, cover page.

VIII.

Even assuming appellant’s rape fantasy had some basis in rationality, his complaints are utterly devoid of any allegations establishing the personal involvement of any of the defendants. His contentions depend upon the following prosyllogisms and episyllogisms:

A.

Major Premise: Some needle marks are signs of drug injection.

Minor Premise: I awoke with some needle marks.

Conclusion: Therefore, I was drugged.

B.

Major Premise: One who is drugged can be raped without his knowledge.

Minor Premise: I was drugged.

Conclusion: Therefore, I was raped.

C.

Major Premise: Those correctional officials who are involved in or knowledgeable of inmate rapes are liable.

Minor Premise: Defendants are correctional officials.

*1439 Conclusion: Therefore, defendants are liable.

Both fallacies of form and material fallacies inhere in each of these three arguments. Rules of syllogistic logic, first identified by Aristotle, and universally acknowledged by all logicians, are involved here. 2 Syllogism “A” represents the fallacy of the undistributed middle term: 3 In a formally valid categorical syllogism, the middle term must be distributed in at least one of the premises. If either the minor term or the major term is distributed in the conclusion, it must be distributed in the premise in which it originates. 4 Here, the middle term “needle marks” is undistributed in both the major and minor premises. It does not necessarily follow that all needle marks are evidence of drug ingestion simply because some are. See, e.g., Spencer v. Texas, 385 U.S. 554, 569-570 , 87 S.Ct. 648, 657 , 17 L.Ed.2d 606 (1967) (Warren, C.J., dissenting).

Syllogism “B” discloses the formal fallacy of the illicit major term. Here, the major term in the syllogism (“raped”) is undistributed in the major premise (“can be raped”), but distributed in the conclusion (“was raped”). The resulting fallacy is obvious. Hundreds of physical or mental consequences can possibly follow injection or ingestion of drugs; being raped is only one possible consequence. Syllogism “C” violates a fundamental rule of categorical syllogisms: “A valid standard-form categorical syllogism must contain exactly three terms, each of which is used in the same sense throughout the argument.” Copi, supra note 2, at 217. In this case, the middle term, “correctional officials,” is used in a different sense in the minor premise than it is in the major premise, where it refers to “correctional officials who are involved or knowledgeable of inmate rapes.” This syllogism also exhibits the fallacy of the undistributed middle. The middle term, “those correctional officials who are involved or knowledgeable of inmate rapes” is undistributed in the major premise. The term “correctional officials” is also undistributed in the minor premise because it refers only to the defendant-correctional officials, not the entire universe of correctional officials.

But even if Hernandez’ arguments met the requirements of formal logical form, they would still contain fatal defects. The arguments contain material fallacies, that is, errors or evasions that appear only through an analysis of the meaning of the terms, rather than an analysis of the logical form. For example, each syllogism is a non sequitur, an argument exhibiting the lack of a logical connection. From the mix of pleaded facts — needle marks, fecal stains on a tee-shirt, sleeping later than usual on one occasion — any conclusion pinning liability on the defendants here is a paradigmatic non sequitur. See materials collected in R. Aldisert, The Judicial Process 626-57 (1976).

IX.

At a very minimum, appellant is required to show a causal connection between the alleged harms suffered and the actions of the defendants. Hernandez’ theory that he was raped is based only on the factual allegation that he discovered needle marks on his body the morning after the alleged incidents.

As a matter of law, the conclusion that he had been raped cannot be drawn as a permissible, let alone a reasonable, inference from the needle marks; a fortiori, the presence of the needle marks as a major premise cannot by any logical process lead *1440 to a conclusion implicating the named correctional officials as perpetrators of the rapes.

But what is of paramount importance here is that no amendment of facts in the complaint can cure this fatality given the theory advanced and the inferences required. This is a classic example of the precept set forth in the Worley, Armstrong, and Noll line of cases — if it clearly appears that the deficiency in the complaint cannot be overcome by amendment, the district court may dismiss under section 1915(d) without genuflecting to the needless ritual of giving the plaintiff the opportunity to amend a second time before entering an order of dismissal. This precept was reaffirmed as recently as April 26, 1988, by this court in Albrecht v. Lund, 845 F.2d 193, 195 (9th Cir.1988). (“If the district court determines that the ‘allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency,’ then the dismissal without leave to amend is proper.”) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393 , 1401 (9th Cir.1986)).

I would affirm the judgment of the district court in all respects for the reasons stated herein. The grand purpose of prisoner civil rights petitions under section 1983 is to insure that the structured society within penal institutions possesses the minimum accoutrements of civilized order. It is to eliminate savage and barbarous treatment. It should not be prostituted by the hallucinations of a troubled man. And that is what we have here.

. L. Stebbing, A Modem Introduction to Logic 211-212 (6th ed. 1947).

. See I. Copi, Introduction to Logic 201-02, 217-18 (7th ed.) (1986); J. Cooley, A Primer of Formal Logic 306 (1942); J. Creighton, An Introduction to Logic 139 (1958); R. Eaton, General Logic 95 (1931); W. Jevon, Elementary Lessons in Logic 127 (1965); L. Stebbing, A Modem Introduction to Logic 88 (1948).

. Copi, supra, note 2, at 219-20. The three terms of the categorical syllogism are “middle,” “major," and “minor.” A term is "distributed” if it refers to the whole of its class; if it refers to only part of its class, it is "undistributed.”

."For the two terms of the conclusion really to be connected through the third, at least one of them must be related to the whole of the class designated by the third or middle term.” Copi, supra note 2, at 219.