RILEY, J.
Appellant-Plaintiff, Eric D. Smith (Smith), an inmate at the New Castle Correctional Facility, appeals the dismissal of his 42 U.S.C. § 1983 action against Jeff Wrigley (Wrigley), the superintendent of that facility, and David Ittenbach (Ittenbach), the grievance executive assistant at the facility.
We reverse.
Smith presents two issues for our review, one of which we find to be dispositive and restate as: Whether the trial court erred in dismissing Smith’s complaint as frivolous under Indiana’s Frivolous Claim Law, Ind. Code § 34-58-1-2.
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Because Indiana’s Frivolous Claim Law tracks the federal statutes, as well as the United States Supreme Court’s interpretation of the word “frivolous” in those statutes, we adopt that interpretation. Applying that interpretation to Smith’s complaint, we cannot say that it is either legally or factually frivolous. To reiterate, the Court described a legally frivolous claim as one that relies upon an “inarguable legal conclusion” or an “indisputably meritless legal theory.” Neitzke, 490 U.S. at 325, 327. Here, Smith claimed that DOC staff have control over the temperature of the water in the prison showers and that they have at times made it “scolding [sic] hot – so hot that it will burn you[.]” (Appellant’s App. p. 7). He also claimed that he broke his ankle during recreation time and that the shackles that he is forced to wear when he is taken out of his cell cause him “severe pain.” (Appellant’s App. p. 11). Smith contends that these actions violate his Eighth Amendment right to be free from cruel and unusual punishment. Certainly this is a valid legal theory and conclusion, even if it is eventually determined that the facts alleged by Smith are false.
Moreover, Smith’s claims do not meet the United States Supreme Court’s standard for factual frivolousness. In Neitzke, the Court held that a court may dismiss a claim as factually frivolous only if the facts alleged are “clearly baseless,” a category encompassing allegations that are “fanciful,” “fantastic,” or “delusional.” 490 U.S. at 325, 327-28. In Denton, the Court stated that these words suggest that “a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible.” Id. at 33. Smith, however, alleges specific behavior by DOC staff that is allegedly causing him specific injuries. Cf. Smith v. Donahue, — N.E.2d —, No. 46A03-0712-CV-571 (Ind. Ct. App. June 4, 2009) (affirming dismissal of complaint in which Smith alleged no operative facts and made only broad legal conclusions). While Smith’s complaint might turn out to be baseless, it is not clearly baseless on its face. To borrow from one current United States Supreme Court justice, Smith’s complaint does not include claims about little green men, his recent trip to Pluto, or his experiences in time travel. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1959 (2009) (Souter, J., dissenting).
Given Smith’s penchant for litigation, we acknowledge the very real possibility that his claims in this case are completely false or at least exaggerations of the truth. He has more than fifty cause numbers listed under his name on our Online Docket, and he has no doubt filed other suits that have not made it onto our docket, at least not yet. His lawsuits have included allegations regarding a “painful odor” in a DOC facility and the lack of televisions in a segregation unit. In one suit, Smith claimed an “inalienable right” to Rogaine. See “Prisoner Lawsuits Costly to State” (available at http://www.wthr.com/Global/story.asp?s=5097630) (last accessed June 1, 2009). Defendants in Smith’s suits include the Chief Justices of the United States and the Indiana Supreme Courts. At this point, there is little reason to believe anything that Smith says or writes. The trial judge in this case knows this as well as anyone; as he noted in his order dismissing Smith’s complaint, Smith has filed more than one case per month in Henry Superior Court I alone since being transferred to New Castle Correctional Facility on July 3, 2008. Nonetheless, as the United States Supreme Court stated in Denton, a complaint should not be dismissed as frivolous “simply because the court finds the plaintiff’s allegations unlikely.” 504 U.S. at 33. In sum, we cannot say that Smith’s complaint lacks an arguable basis in law or in fact as defined by the United States Supreme Court.
Of course, Indiana’s Frivolous Claim Law includes in its definition of “frivolous” a third category of claims: those that are “made primarily to harass a person.” I.C. § 34-58-1-2(b)(1). We have no doubt that Smith files most of his complaints, possibly including this one, primarily to harass the defendants and/or the courts. In some cases, this will be clear from the face of the complaint, e.g., the Rogaine case. Prisoners have no right to be provided with Rogaine, and any lawsuit claiming such a right is clearly frivolous. However, in other cases, such as this one, the face of the complaint will state a valid legal theory, and a court would not know whether Smith’s claims were made to harass a person until the case is more fully developed. In those cases, dismissal at the screening stage would not be, and could not be, based on anything more than the speculation of the trial court judge. In our system, cases cannot be resolved based on speculation.
Put bluntly, we cannot endorse a system in which Eric Smith’s complaints are dismissed merely because they were filed by Eric Smith. This would be the equivalent of shutting the courthouse doors altogether. Indiana’s Three Strikes Law did the same thing to Smith, and last year, our supreme court found that law to be unconstitutional. See Smith v. Ind. Dep’t of Corr., 883 N.E.2d 802 (Ind. 2008). The court held that, under the Indiana Constitution, “an individualized assessment of each claim is required, and a claim cannot be dismissed on the basis of who presents it rather than whether it has merit.” Id. at 806; see also Jones v. Bock, 549 U.S. 199, 203 (2007) (“Most of these cases have no merit; many are frivolous. Our legal system, however, remains committed to guaranteeing that prisoner claims of illegal conduct by their custodians are fairly handled according to law.”).
Finally, we pause to clarify that it is not our holding that all prisoner complaints must be allowed to proceed past the pleading phase. Complaints that are facially frivolous, e.g., those that reference little green men or a constitutional right to Rogaine, can still be summarily dismissed at the screening stage. In the meantime, we urge our legislature to consider some of the steps taken by other states in an attempt to lessen the burden of meritless offender litigation, several of which our supreme court cited in its Smith opinion last year. 883 N.E.2d at 808-09. Likewise, as noted by our supreme court, federal courts have upheld the PLRA, which does not prevent inmates from pursuing claims but merely requires that they pay the filing fee. Id. at 809.
Based on the foregoing, we conclude that the trial court erred by dismissing Smith’s complaint as frivolous under Indiana Code section 34-58-1-2.
Reversed.
KIRSCH, J., and MATHIAS, J., concur.