                                   United States Court of Appeals,

                                             Fifth Circuit.

                                             No. 91–7290

                                         Summary Calendar.

                         David Darrell MOORE, et al., Plaintiffs–Appellants,

                                                   v.

                             Ray MABUS, et al., Defendants–Appellees.

                                            Nov. 2, 1992.

Appeal from the United States District Court for the Northern District of Mississippi.

Before POLITZ, Chief Judge, KING and GARWOOD, Circuit Judges.

          POLITZ, Chief Judge:

          David Darrell Moore and Elton Banks appeal the 28 U.S.C. § 1915(d) dismissal of their pro

se, in forma pauperis civil rights complaint, and the denial of their application for appointment of

counsel. We affirm in part, vacate the dismissal, remand for further proceedings, and direct that

counsel be appointed.

                                             Background

          Moore and Banks are inmates at the Mississippi State Penitentiary in Parchman, Mississippi.

In 1990 Moore, Banks, and Eddie Ray Gowdy1 filed a 42 U.S.C. § 1983 complaint against various

Mississippi state officials alleging, in relation to HIV-positive prisoners: (1) deliberate indifference

to serious medical needs in violation of the eighth amendment, (2) conditions of confinement in

violation of the eighth amendment, (3) violation of the fourteenth amendment right of privacy, (4)

loss of privileges in violation of fourteenth amendment due process and equal protection components,

and (5) denial of rights guaranteed by state law. The complaint also inartfully purported to be a class

action on behalf of prisoners denominated by the plaintiffs as the "fluid" class. The plaintiffs moved

for appointment of counsel.



   1
       Gowdy apparently has been released from prison.
          Following a Spears2 hearing the magistrate judge recommended dismissal as frivolous under

28 U.S.C. § 1915(d). The district court accepted the recommendation, denied the appointment of

counsel, and dismissed the complaint. Moore and Banks timely appealed.

                                               Analysis

          The district court did not have the benefit of two recent Supreme Court decisions when it

considered the instant complaint. Denton v. Hernandez3 clarified the legal standard for a finding of

factual frivolousness under section 1915(d)4 and the standard for appellate review of such a finding,

and Wilson v. Seiter5 mandated the application of the deliberate indifference standard to all conditions

of confinement cases.

Spears after Neitzke and Denton

          Spears, decided some years before Neitzke and Denton, has not been reexamined in light of

these new Supreme Court teachings. Our holding in Spears that the "standard for determining the

legal sufficiency of a complaint is the same under Fed.R.Civ.P. 12 or 28 U.S.C. § 1915(d)" did not

survive Neitzke. The Neitzke Court concluded that "frivolousness in the § 1915(d) context refers to

a more limited set of claims than does Rule 12(b)(6),"6 and held that while Rule 12(b)(6) and section

1915(d) overlap, "it does not follow that a complaint which falls afoul of the former standard will

invariably fall afoul of the latter." 7 To the extent that an in forma pauperis complaint fails to state

a claim because it lacks even an arguable basis in law, Rule 12(b)(6) and section 1915(d) both counsel

dismissal. When a complaint raises an arguable question of law which the district court ultimately

finds is correctly resolved against the plaintiff, dismissal under Rule 12(b)(6) is appropriate; however,


   2
       Spears v. McCotter, 766 F.2d 179 (5th Cir.1985).
   3
       ––– U.S. ––––, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992).
   4
    Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989), provided the
analogous guidance for a finding of legal frivolousness under section 1915(d).
   5
       ––– U.S. ––––, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991).
   6
       Neitzke, 490 U.S. at 329, 109 S.Ct. at 1833.
   7
       Neitzke, 490 U.S. at 326, 109 S.Ct. at 1832.
dismissal under the section 1915(d) frivolousness standard is not. In explaining this conclusion, the

Neitzke Court reasoned that "[a]ccording opportunities for responsive pleadings to indigent litigants

commensurate to the opportunities accorded similarly situated paying plaintiffs is all the more

important because indigent plaintiffs so often proceed pro se and therefore may be less capable of

formulating legally competent initial pleadings."8

              In Denton the Supreme Court applied Neitzke dicta to draw a firm distinction between

factually and legally frivolous complaints and the appropriate section 1915(d) standard:

              [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," and
              "delusional." As those words suggest, a finding of factual frivolousness is appropriate when
              the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there
              are judicially noticeable facts available to contradict them. An in forma pauperis complaint
              may not be dismissed, however, simply because the co urt finds the plaintiff's allegations
              unlikely.9

The Court reaffirmed that a section 1915(d) dismissal is reviewed for abuse of discretion.10 In

determining whether a district court has abused its discretion, the appellate court may consider

whether (1) the plaintiff is proceeding in forma pauperis, (2) the court inappropriately resolved

genuine issues of disputed fact, (3) the court applied erroneous legal conclusions, (4) the court has

provided a statement of reasons which facilitates "intelligent appellate review,"11 and (5) any factual

frivolousness could have been remedied through a more specific pleading.12

              We view Neitzke and Denton as mandating that a Spears-hearing record clearly distinguish

between findings of factual, legal, or mixed factual and legal frivolousness. In addition, to facilitate

a meaningful, "intelligent appellate review" the district court's reasons for a section 1915(d) dismissal

should reflect the Neitzke–Denton considerations.


   8
       Neitzke, 490 U.S. at 330, 109 S.Ct. at 1834.
   9
       Denton, ––– U.S. at –––– – ––––, 112 S.Ct. at 1733–1734, 118 L.Ed.2d at 349–350.
   10
    Denton, ––– U.S. at ––––, 112 S.Ct. at 1734, 118 L.Ed.2d at 350. A section 1915(d)
dismissal is not a dismissal on the merits but may have res judicata effect. Id.
   11
        Id.
   12
        Denton, ––– U.S. at ––––, 112 S.Ct. at 1734, 118 L.Ed.2d at 351.
The Allegations

          Plaintiffs allege that: (1) during September 1989, after meeting with the prison classification

committee, Moore was upgraded to "A" level custody, assigned to the prison law library as a clerk,

and t ransferred to Unit 29–J, a minimum security unit; (2) Moore then signed a contract which

granted him certain privileges, including access to vocational classes, college, jobs, extended family

visits, gym call, nightly telephone visits, emergency leave, attendance at entertainment functions, and

other privileges; (3) in October 1989 Moore was transferred to Unit 15–B, the administrative

segregation unit, and denied all privileges, including the contract privileges; (4) in November 1989

Moore and approximately 45 other HIV-positive prisoners were moved to Unit 28–D, a unit

designated for housing o f HIV-positive prisoners where the living conditions were substantially

inferior to the housing of other prisoners because of defective plumbing, vermin and insect infestation,

and building deterioration exposing prisoners to adverse weather conditions; (5) there was a lack of

physicians trained to treat HIV-related medical problems; (6) prison dentists refused to provide

HIV-positive prisoners with timely treat ment; (7) Moore did not receive adequate diagnosis and

treatment of his AIDS condition; (8) AIDS drugs were not provided; (9) some HIV-positive

prisoners remained in the general prison population; (10) privileges were denied HIV-positive

prisoners without any rational basis other t han their medical status; (11) guards failed to protect

HIV-positive prisoners; and (12) prisoner privacy rights were violated by publication of their medical

status.

          We cannot determine from the complaint whether any or all of the allegations that refer to

Moore alone are intended to be class-wide. Both the magistrate judge and the district court referred

to a prior Mississippi state court action in which Moore purportedly raised the same issues and

concluded that Moore's claims were barred by the res judicata effects of the dismissal of that suit.

The state court record is not before us; we cannot address that issue.13

Legal Frivolousness


   13
    Accord, Denton, ––– U.S. at –––– – ––––, 112 S.Ct. at 1734–1735, 118 L.Ed.2d at
350–351.
          This complaint poses questions nearly identical to those faced by our Eleventh Circuit

colleagues in Harris v. Thigpen.14 Both complaints pose allegations of serious constitutional

violations related to the "range of difficult, AIDS-related issues that confront all correctional officials,

administrators, policymakers and inmates as they attempt to grapple with the problems engendered

by the presence of HIV infection in our nation's prisons and jails." When our colleagues noted the

seminal importance of Thigpen, they were not reviewing an appeal from a section 1915(d) dismissal

but one following a post-trial judgment. Reflecting the careful record development inherent in a

full-blown trial, the lengthy Thigpen opinion details the novelty and difficulty of resolution of the

issues. Thigpen does not involve the mere application of well-settled principles of law. Many of the

issues with which the Thigpen court struggled are res nova in this circuit.

          Applying the Neitzke considerations for testing a finding of legal frivolousness, we conclude

that the instant case involves: (1) pro se, in forma pauperis plaintiffs; (2) instances of potentially

disputed facts resolved by the district court; (3) potentially erroneous legal conclusions by the district

court; and (4) an inability to perform an intelligent appellate review for lack of adequate record

development and because of an inadequate statement of reasons for the dismissal. For these reasons

Neitzke not only counsels, but commands a reversal of the section 1915(d) dismissal.15

Eighth Amendment Deliberate Indifference Considerations

           Because of the paucity of the record, any comment that we might make with respect to the

merits of the case is subject to the suggestion of speculation. Nonetheless an observation is

warranted. Wilson does not require a "smoking gun" in order to find deliberate indifference. Nor

does Wilson attempt to define what acts might constitute deliberate indifference. Rather, the Wilson

Court reaffirmed that the determination must be made with "due regard for differences in the kind of

conduct to which an Eighth Amendment objection is lodged."16 The Court reaffirmed an earlier

holding that "[s]ome conditions of confinement may establish an Eighth Amendment violation "in

   14
        941 F.2d 1495 (11th Cir.1991).
   15
        Neitzke, 490 U.S. at 328–330, 109 S.Ct. at 1833–1834.
   16
        Wilson, ––– U.S. at ––––, 111 S.Ct. at 2326, 115 L.Ed.2d at 281.
combination' when each would not do so alone, but only when they have a mutually enforcing effect

that produces the deprivation of a single, identifiable human need...."17

Segregation and Privacy Rights

           Moore's complaint about the abridgment of his right of privacy and the loss of privileges in

violation of the fourteenth amendment due process and equal protection components are without

merit and the dismissal thereof is affirmed. Prior to the district court's ruling, on the appeal of the

temporary injunction ruling,18 we held that Moore had demonstrated no likelihood of success on the

privacy claim. Further, the identification and segregation of HIV-positive prisoners obviously serves

a legitimate penological interest.19

Appointment of Counsel

           Thigpen also informs why we believe the district court erred in denying the plaintiffs' motion

to appoint counsel under Ulmer v. Chancellor.20 Thigpen demonstrates beyond cavil that (1) the type

and complexity of the issues raised in the complaint are deserving of professional development, (2)

the complex subject of HIV–AIDS management in a prison environment is beyond the ability of a

mere prisoner to investigate adequately, (3) the scope of the questions raised and the extensive

resources required to pursue properly the issues in this case far exceed the capability and resources

of a prisoner, and (4) the apparently essential testimony from experts on HIV–AIDS management in

the prison environment will require pro fessional trial skills. We are persuaded that this is an

extraordinary case in which appointment of counsel will assist the plaintiffs, the State of Mississippi,

and the court in resolving these important unanswered questions. The district court should promptly

appoint qualified counsel.

                                               Conclusion

          The denial of the motion for the appointment of counsel is REVERSED and counsel is to be

   17
        Wilson, ––– U.S. at ––––, 111 S.Ct. at 2327, 115 L.Ed.2d at 283 (emphasis in original).
   18
        Moore v. Mabus, 931 F.2d 890 (5th Cir. Apr. 16, 1991) (unpublished).
   19
        Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987).
   20
        691 F.2d 209 (5th Cir.1982).
appointed. The district court judgment insofar as it dismisses the privacy and loss of privileges claims

is AFFIRMED; otherwise the dismissal of the complaint as frivolous is VACATED and the case is

REMANDED for further proceedings consistent herewith.
