in this case and in other cases of this nature. The order could very well require witnesses to be sworn. It comes at a stage in the proceedings when it may be more useful to all parties than would be the use of interrogatories We must also hold that if the method described above could not have been followed, and as an alternative thereto, that a 'record' could have been made by the imposition of a requirement that it be developed by the state authorities by use of administrative or grievance procedures provided for the state prison. This is, of course, not an exhaustion requirement and is especially important for the reasons alluded to above. 570 F.2d at 319. In Martinez v. Chavez, 574 F.2d 1043 (10th Cir. 1978), the plaintiff alleged that during his four months in the county jail he had been subjected to cruel and unusual punishment in the form of suffocating conditions as a result of inadequate ventilation. The plaintiff was granted leave to proceed in forma pauperis and the defendant filed an answer arguing that plaintiff's complaint failed to allege a violation of a federal constitutional right. The district court ordered the parties to submit affidavits and counter affidavits. The court then dismissed the complaint as frivolous under section 1915(d). The court approved the procedure utilized by the district court, noting that the affidavits revealed that the defendants had reported plaintiff's complaints regarding ventilation to the proper authorities. Therefore, it was clear that he was not deliberately indifferent to plaintiff's complaint. Accepting all of plaintiff's allegations of fact as true, it was clear that he could not establish a claim against the defendant. Therefore, the dismissal was proper. The court commented that the burden was on the district courts to develop effective and legally permissible methods of dealing with the ever increasing numbers of prisoner civil rights actions. See also Gordon v. Leeke, 574 F.2d 1147, 1150, 1152 (4th Cir. 1978). SECTION VI: FRIVOLOUS OR MALICIOUS TEST48 In the context of section 1915(d), the allegations of the complaint must be accepted as true. Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L. Ed. 2d 251 (1976). Pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers. The Court noted in Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L. Ed. 2d 90, 96 (1974), that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief."50 In Slavin v. Curry, 574 F.2d 1256, 1260 (5th Cir. 1978), the court stated that "a judge cannot allow the personal view that the allegations of a pro se complaint are implausible to temper his duty to appraise such pleadings liberally." Bennett v. Passic, 545 F.2d 1260, 1261 (10th Cir. 1976) identified the test for frivolousness as "whether the plaintiff can make a rational argument on the law or facts in support of his claim." Watson v. Ault, 525 F.2d 886, 892 (5th Cir. 1976), adopted the test for frivolous appeal defined by the Supreme Court in Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493, 498 (1967), as being whether it was without arguable merit, both in law and in fact. Duhart v. Carlson, 469 F.2d 471 (10th Cir. 1972) found that the district court had not erred in dismissing the complaint as frivolous and malicious where 48. See Section V, supra. 49. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). 50. Although Scheuer involved a motion to dismiss, rather than dismissal without service of process, this language was quoted by the Court in Estelle. the plaintiffs had brought many other complaints in the district court in which they made the same allegations and asked for similar relief.51 The court of appeals noted that a court "may take judicial notice of its own records." An example of an exceptionally litigous prisoner plaintiff is found in Carter v Telectron, Inc., 452 F.Supp. 944 (S.D. Tex. 1977). 52 There the court found that in a 15 year period the plaintiff had instituted at least 178 cases throughout the country, attempting to proceed in most of them as a pauper without prepayment of fees. The court found that the plaintiff had misused the section 1915 privilege in filing untrue allegations of poverty, in repeatedly suing certain defandants in different districts and divisions on the same or similar causes of action, in varying his allegations of citizenship in order to facially invoke federal diversity jurisdiction, in failing to disclose prior similar actions and their dispositions, in obtaining default judgments by use of the Texas Long Arm Statute, and failing to serve pleadings on defendants. The court also observed that the pleadings in some of the cases raised the possibility that the plaintiff filed forged answers in order to establish in personam jurisdiction over defendants and to place in the record admissions of liability for purposes of a subsequent motion for summary judgment. There does not seem to be a meaningful distinction between the test for dismissal under section 1915(d) as frivolous and the test for dismissal under Rule 12(b) (6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. In Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L. Ed. 2d 251 (1976), the district court dismissed the complaint sua sponte simultaneously with granting leave to file it in forma pauperis. Although the dismissal would therefore appear to be under section 1915(d), both the district court and the Supreme Court considered the proper test to be whether the complaint stated a cause of action. Estelle was followed in Smart v. Villar, 547 F.2d 112 (10th Cir. 1976), where the court affirmed a dismissal under section 1915 (d), appearing to apply the "cause of action" test, rather than the "frivolous or 51. Accord Graham v. Riddle, 554 F.2d 133 (4th Cir. 1977). 52. See also Section VII infra. malicious" test. However, in Lewis v. State of New York, 547 F.2d 4 (2d Cir. 1976), the court held that the district court had improperly dismissed for failure to state a claim prior to service of process. The court in discussing the procedural problems presented by sua sponte dismissal stated: "Failure to afford plaintiffs an opportunity to address the court's sua sponte motion to dismiss is, by itself, grounds for reversal. 546 F.2d 6 n. 4. In Massey v. Hutto, 545 F.2d 45 (8th Cir. 1976), the court directed the prison authorities to produce plaintiff's prison medical records and then dismissed plaintiff's three complaints. Although it is not entirely clear from the opinion, the dismissals appear to have been prior to service of process and to have been based upon each complaint's failure to state a claim. The court of appeals affirmed as to two dismissals, but reversed as to the third, appearing to apply the "statement of a claim" test. A complaint should not be dismissed sua sponte on an objection to the complaint, such as improper venue, which would be waived if not raised by the defendant in a timely manner. Sinwell v. Shapp, 536 F.2d 15 (3d Cir. 1976). Gordon v. Leeke, 574 F.2d 1147, 1152 (4th Cir. 1978), reversed dismissals of two actions, admitting that the plaintiffs had failed to make out claims against the named defendants: A district court is not required to act 574 F.2d at 1152. In Wilson v. Zarhadnick, 534 F.2d 55 (5th Cir. 1976) the district court had gone too far in assisting the pro se plaintiff. The plaintiff wrote a letter to the district judge complaining that the superintendent refused to let him have his legal materials and seeking injunctive relief. The judge drafted a complaint in the nature of a section 1983 suit and ordered the defendant superintendent to show cause why a preliminary injunction should not issue. The court improperly granted class action injunctive relief, which had not been sought by plaintiff, and required the state to furnish a legal library, further relief not sought by plaintiff. |