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Prisoner's Claim of Censorship of Non-Obscene Materials Remanded
The U.S. Tenth Circuit Court of Appeals, reversing the U.S. District Court
in Kansas, held that dismissal of a Kansas prisoner's claim against Kansas
Department of Corrections (DOC) officials accused of censoring "obscene"
materials was properly dismissed but that the prisoner's claim of
censorship by officials of non-obscene letters and photographs was
improperly dismissed.
Billie Elliott, a DOC prisoner at the Lansing Correctional Facility (LCF)
in Lansing, Kansas, sued LCF mailroom officials under 42 U.S.C. §1983
claiming that officials violated his First and Fourteenth Amendment rights
by arbitrarily and capriciously censoring non-obscene publications,
pictures and letters, by not notifying him of the withholding, and by
permitting some prisoners to receive obscene materials while denying them
to him and others.
The district court dismissed Elliott's claims under 28 U.S.C.
§1915(e)(2)(B). The court held that Elliott's First Amendment claims were
frivolous and unsupported. The district court also held that some claims
had not been administratively exhausted. Finally, the court held that "the
limited nature of the alleged inequality [on the equal protection claim] is
simply insufficient to support a claim of purposeful discrimination."
Elliott appealed.
The appeals court held that dismissal of the First Amendment claim of
censorship of obscene materials was warranted because the claim was
frivolous. The censorship of non-obscene letters and photographs from a
female pen pal, however, had to be reversed on the basis of the factual
dispute between Elliott and the mailroom officials as to what happened. The
appellate court also held that the district court had erred in finding
Elliott's claim that prison officials acted arbitrarily and capriciously
was not fully exhausted. The Tenth Circuit reversed Elliott's claim that
mailroom officials converted censored materials to their personal use,
noting "the record before this court does not show what the prison
officials did with the materials they seized or what ultimately happened to
the materials." The appeals court noted that such a claim was a state law
claim and may not be cognizable under 42 U.S.C. §1983. The appellate court
also reversed the district court on Elliott's claim of due process
violations, finding, contrary to the district court, that Elliott had
exhausted his administrative remedies. The dismissal of Elliott's equal
protection claim was affirmed.
The district court's dismissal was affirmed in part, reversed in part and
remanded for further proceedings. This was not a ruling on the merits of
the case. This case is published in the Federal Appendix and is subject to
rules governing unpublished cases. See: Elliott v. Cummings, 49 Fed.Appx.
220 (10th Cir. 2002).
in Kansas, held that dismissal of a Kansas prisoner's claim against Kansas
Department of Corrections (DOC) officials accused of censoring "obscene"
materials was properly dismissed but that the prisoner's claim of
censorship by officials of non-obscene letters and photographs was
improperly dismissed.
Billie Elliott, a DOC prisoner at the Lansing Correctional Facility (LCF)
in Lansing, Kansas, sued LCF mailroom officials under 42 U.S.C. §1983
claiming that officials violated his First and Fourteenth Amendment rights
by arbitrarily and capriciously censoring non-obscene publications,
pictures and letters, by not notifying him of the withholding, and by
permitting some prisoners to receive obscene materials while denying them
to him and others.
The district court dismissed Elliott's claims under 28 U.S.C.
§1915(e)(2)(B). The court held that Elliott's First Amendment claims were
frivolous and unsupported. The district court also held that some claims
had not been administratively exhausted. Finally, the court held that "the
limited nature of the alleged inequality [on the equal protection claim] is
simply insufficient to support a claim of purposeful discrimination."
Elliott appealed.
The appeals court held that dismissal of the First Amendment claim of
censorship of obscene materials was warranted because the claim was
frivolous. The censorship of non-obscene letters and photographs from a
female pen pal, however, had to be reversed on the basis of the factual
dispute between Elliott and the mailroom officials as to what happened. The
appellate court also held that the district court had erred in finding
Elliott's claim that prison officials acted arbitrarily and capriciously
was not fully exhausted. The Tenth Circuit reversed Elliott's claim that
mailroom officials converted censored materials to their personal use,
noting "the record before this court does not show what the prison
officials did with the materials they seized or what ultimately happened to
the materials." The appeals court noted that such a claim was a state law
claim and may not be cognizable under 42 U.S.C. §1983. The appellate court
also reversed the district court on Elliott's claim of due process
violations, finding, contrary to the district court, that Elliott had
exhausted his administrative remedies. The dismissal of Elliott's equal
protection claim was affirmed.
The district court's dismissal was affirmed in part, reversed in part and
remanded for further proceedings. This was not a ruling on the merits of
the case. This case is published in the Federal Appendix and is subject to
rules governing unpublished cases. See: Elliott v. Cummings, 49 Fed.Appx.
220 (10th Cir. 2002).
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Related legal case
Elliott v. Cummings
| Year | 2002 |
|---|---|
| Cite | 49 Fed.Appx. 220 (10th Cir. 2002). |
| Level | Court of Appeals |
| Attorney Fees | 0 |
| Damages | 0 |
| Injunction Status | N/A |
[U] Elliott v. Cummings, 49 Fed.Appx. 220 (10th Cir. 10/09/2002)
[1] UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
[2] No. 01-3317
[3] 49 Fed.Appx. 220, 2002
[4] October 9, 2002
[5] BILLIE ELLIOTT, PLAINTIFF - APPELLANT,
v.
WILLIAM L. CUMMINGS, DEPUTY SECRETARY, KANSAS DEPARTMENT OF CORRECTIONS; DAVID R. MCKUNE, WARDEN, KANSAS DEPARTMENT OF CORRECTIONS; PAM GREEN, MAILROOM SUPERVISOR, KANSAS DEPARTMENT OF CORRECTIONS; TABOR MEDILL, ADMINISTRATIVE ASSISTANT, KANSAS DEPARTMENT OF CORRECTIONS; MICHAEL DAVID, ADMINISTRATIVE ASSISTANT, KANSAS DEPARTMENT OF CORRECTIONS; DUANE MUCKENTHALER, CM I, KANSAS DEPARTMENT OF CORRECTIONS; (FNU) (LNU), OFFICER D.M., MAILROOM OFFICER, KANSAS DEPARTMENT OF CORRECTIONS, DEFENDANTS - APPELLEES.
[6] (D.C. No. 00-CV-3309-GTV) (D. Kansas)
[7] Before Murphy, Anderson, and Hartz, Circuit Judges.
[8] The opinion of the court was delivered by: Harris L Hartz Circuit Judge
[9] ORDER AND JUDGMENT *fn1
[10] After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
[11] Pro se plaintiff Billie Elliott, an inmate at the Lansing Correctional Facility in Lansing, Kansas, appeals the district court's dismissal of his 42 U.S.C. § 1983 complaint. We exercise jurisdiction under 28 U.S.C. § 1291. We affirm in part, reverse in part, and remand this matter to the district court for further proceedings.
[12] I. Background
[13] Under Kan. Admin. Regs. 44-12-601(q)(3), prison officials at the Lansing Correctional Facility are required to censor, and not permit into the facility, all publications mailed to inmates which contain obscenity. Kan. Admin. Regs. 44-12-313(b) defines "obscenity" as follows:
[14] Any material is obscene if the average person applying contemporary community standards would find that the material, taken as a whole: (1) appeals to the prurient interest; (2) has patently offensive representations or descriptions of (A) ultimate sex acts, normal or perverted, actual or simulated, including sexual intercourse or sodomy; or (B) masturbation, excretory functions, sadomasochistic abuse, or lewd exhibition of the genitals; and (3) would not be considered by a reasonable person to have serious literary, educational, artistic, political, or scientific value.
[15] This definition is in accordance with the definition of obscenity articulated by the United States Supreme Court in Miller v. California, 413 U.S. 15, 24-25 (1973).
[16] As we understand his complaint, plaintiff is not challenging the prison officials' authority to censor and exclude obscene materials from the prison. Instead, plaintiff alleges that defendants have acted in an arbitrary and capricious manner in censoring non-obscene publications and correspondence that were mailed to him at the prison; that defendants have seized publications and correspondence without promptly notifying him of the decisions to withhold the materials from him; that defendants have converted his publications and correspondence for their own personal use; and that defendants have treated him differently from other inmates because other inmates have been permitted to receive the same or similar types of non-obscene pornographic materials. Plaintiff alleges that defendants have thereby violated his rights under the First and Fourteenth Amendments; he seeks to recover damages and has requested both declaratory and injunctive relief.
[17] In support of the allegations in his complaint, and as evidence that he has exhausted all available administrative remedies, plaintiff attached documentation to his complaint which shows the following:
[18] 1. On September 30, 1999, plaintiff submitted grievance No. AA20000209, complaining that employees in the prison's mail room had seized and censored his copy of the December 1999 issue of Hawk magazine. Plaintiff claimed that the issue was not obscene and should not have been censored since it did not contain any photographs showing sexual penetration. He further claimed on appeal that another inmate at the prison had been permitted to receive a copy of the issue. On appeal to the Secretary of Corrections, a designee of the secretary determined that it was not necessary to take any action on plaintiff's grievance because the warden's office had advised that plaintiff was permitted to receive the issue.
[19] 2. On October 11, 1999, plaintiff submitted grievance No. AA20000254, complaining that employees in the prison's mail room had seized and censored his copy of the December 1999 issue of Hawk magazine. On appeal to the Secretary of Corrections, a designee of the secretary determined that it was not necessary to take any action on plaintiff's grievance because the issue was not being censored.
[20] 3. On October 28, 1999, plaintiff submitted a property damage claim, No. AA0105772, seeking to recover the $10.00 cost of the December 1999 issue of Hawk magazine. On appeal to the Department of Corrections, a designee of the department recommended disapproval of the claim because the issue had been approved and there was no proof it had not been sent to plaintiff.
[21] 4. On February 7, 2000, plaintiff submitted grievance No. AA20000599, complaining that employees in the prison's mail room had seized and censored his copy of the April 2000 issue of Hawk magazine and thereby violated his rights under the First Amendment. On appeal to the Secretary of Corrections, a designee of the secretary determined that the issue contained photographs depicting full sexual penetration and was properly censored as containing obscenity.
[22] 5. On February 28, 2000, plaintiff submitted grievance No. AA20000671, complaining that employees in the prison's mail room had seized and censored his copy of the May 2000 issue of Hawk magazine and thereby violated his rights under federal law. On appeal to the Secretary of Corrections, a designee of the secretary determined that the issue contained photographs depicting oral sexual penetration and bodily fluids and was properly censored as containing obscenity.
[23] 6. In March 2000, plaintiff submitted grievance No. AA20000713, complaining that he had ordered a back issue of the December 1999 issue of Hawk magazine and been permitted to receive the back issue, but his copy of the back issue was subsequently confiscated by a prison official. On appeal to the Secretary of Corrections, a designee of the secretary determined that the back issue was properly confiscated because it contained obscenity in the form of photographs depicting simulated sexual activity and discharged sexual fluids, and the prior determination that plaintiff was permitted to receive the issue was in error. (On March 14, 2000, plaintiff submitted a similar grievance regarding the confiscation of the back issue, No. AA0000723, and it was resolved on the same grounds as grievance No. AA0000713.)
[24] 7. On March 10, 2000, plaintiff submitted grievance No. AA20000724, complaining that he had received a censor notice informing him that he could no longer receive pen pal correspondence from an individual in Pennsylvania and that a letter from the individual had been seized. On appeal to the Secretary of Corrections, a designee of the secretary determined that the prison did not have a per se ban on pen pal correspondence and that the letter had been improperly seized.
[25] 8. On May 19, 2000, plaintiff submitted grievance No. AA20000942, complaining that employees in the prison's mail room had, without providing any prior notice to him, seized letters and photographs sent to him from a woman in Rhode Island and returned the letters and photographs to her. Plaintiff claimed the photographs were of women in panties or swimsuits and that none of the photographs contained pictures depicting sexual penetration or bodily fluids. On appeal to the Secretary of Corrections, a designee of the secretary determined that no further action was necessary because a prison official had advised that the mail room had not censored any of plaintiff's mail and returned it to the sender and plaintiff had failed to show that this was incorrect.
[26] 9. On May 19, 2000, plaintiff submitted grievance No. AA20000943, complaining that he had not received his copy of the August 2000 issue of Hawk magazine or a censor notice regarding the issue. The basis of plaintiff's grievance is unclear, however, because he did not claim that the employees had thereby violated his rights under federal law or the governing state regulations regarding obscenity. On appeal to the Secretary of Corrections, a designee of the secretary determined that the issue was properly seized and censored because it contained photographs depicting oral sexual penetration and bodily fluids resulting from sexual activity and was properly censored as containing obscenity.
[27] 10. Plaintiff filed property damage claims with the Joint Committee on Special Claims against the State, Nos. 4781 and 4859, seeking to recover the cost of the initial and backup issues of the December 1999 issue of Hawk magazine. In June 2000, the committee denied the claims.
[28] (In addition to the grievances summarized above, plaintiff also attached copies of a number of other grievances to his complaint. We need not address the additional grievances, however, because they do not pertain to any of the claims asserted in plaintiff's complaint.)
[29] In September 2001 the district court entered a sua sponte order dismissing plaintiff's complaint under 28 U.S.C. § 1915(e)(2)(B). (Section 1915 applied to the district court proceedings because the court granted plaintiff's motion for leave to proceed in forma pauperis.) First, under § 1915(e)(2)(B)(i), the court found that plaintiff's First Amendment claims were frivolous. The court based its frivolousness determination on its review of the documents attached to plaintiff's complaint. According to the court, "[t]he grievance responses show adequate and reasonable bases for the decision to censor the materials in question under the standards set out in [Kan. Admin. Regs.] 44-12-313, and the complaint and attachments provide no support for arbitrary and capricious rule-making."
[30] Second, with respect to plaintiff's claim that defendants converted his magazines for their own personal use, the court found that the claim was "wholly unsupported," and thus frivolous under § 1915(e)(2)(B)(i). According to the court, "[t]he record suggests only that defendants retained the material to inspect its contents. Such a review is necessary to apply the [obscenity] standards set forth in the state regulations."
[31] Third, with respect to plaintiff's claim that defendants seized publications and correspondence without promptly notifying him of the decisions to withhold the materials from him, the court found that plaintiff failed to exhaust fully his notice claim in the prison grievance proceedings. Thus, the court determined that the claim was barred by 42 U.S.C. § 1997e(a).
[32] Finally, in accordance with § 1915(e)(2)(B)(ii), the court found that plaintiff had failed to state an equal protection violation. According to the court, "the record suggests only that a single issue of a magazine confiscated from plaintiff's mail was delivered to another inmate and that plaintiff successfully challenged a single instance of the withholding of pen pal correspondence . . . . [T]he court finds the limited nature of the alleged inequality is simply insufficient to support a claim of purposeful discrimination."
[33] II. Analysis
[34] 1. First Amendment Claims
[35] We review the district court's dismissal under 28 U.S.C. § 1915(e)(2)(B)(i) for an abuse of discretion. See McWilliams v. Colorado, 121 F.3d 573, 574-75 (10th Cir. 1997); but see Basham v. Uphoff, No. 98-8013, 1998 WL 847689, at *4 n.2 (10th Cir. Dec. 8, 1998) (unpublished) (questioning whether de novo standard of review should apply to dismissals under § 1915(e)(2)(B)(i) in light of the changes to the statute under the Prison Litigation Reform Act of 1995); Lowe v. Sockey, No. 00-7109, 2002 WL 491731, at **2 (10th Cir. Apr. 2, 2002) (unpublished) (same). The standard of review is not determinative of this appeal, however, because we reach the same conclusions under either the de novo or the abuse-of-discretion standard of review.
[36] Under § 1915(e)(2)(B)(i), district courts have the "unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Neitzke v. Williams, 490 U.S. 319, 327 (1989) (construing former § 1915(d)). Nonetheless, a district court may not dismiss a complaint as frivolous "simply because the court finds the plaintiff's allegations unlikely." Denton v. Hernandez, 504 U.S. 25, 33 (1992).
[37] In other words, the . . . frivolousness determination, frequently made sua sponte before the defendant has even been asked to file an answer, cannot serve as a factfinding process for the resolution of disputed facts[,] . . . [and] 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[.] Id. at 32-33 (internal quotation marks and citations omitted).
[1] UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
[2] No. 01-3317
[3] 49 Fed.Appx. 220, 2002
[4] October 9, 2002
[5] BILLIE ELLIOTT, PLAINTIFF - APPELLANT,
v.
WILLIAM L. CUMMINGS, DEPUTY SECRETARY, KANSAS DEPARTMENT OF CORRECTIONS; DAVID R. MCKUNE, WARDEN, KANSAS DEPARTMENT OF CORRECTIONS; PAM GREEN, MAILROOM SUPERVISOR, KANSAS DEPARTMENT OF CORRECTIONS; TABOR MEDILL, ADMINISTRATIVE ASSISTANT, KANSAS DEPARTMENT OF CORRECTIONS; MICHAEL DAVID, ADMINISTRATIVE ASSISTANT, KANSAS DEPARTMENT OF CORRECTIONS; DUANE MUCKENTHALER, CM I, KANSAS DEPARTMENT OF CORRECTIONS; (FNU) (LNU), OFFICER D.M., MAILROOM OFFICER, KANSAS DEPARTMENT OF CORRECTIONS, DEFENDANTS - APPELLEES.
[6] (D.C. No. 00-CV-3309-GTV) (D. Kansas)
[7] Before Murphy, Anderson, and Hartz, Circuit Judges.
[8] The opinion of the court was delivered by: Harris L Hartz Circuit Judge
[9] ORDER AND JUDGMENT *fn1
[10] After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
[11] Pro se plaintiff Billie Elliott, an inmate at the Lansing Correctional Facility in Lansing, Kansas, appeals the district court's dismissal of his 42 U.S.C. § 1983 complaint. We exercise jurisdiction under 28 U.S.C. § 1291. We affirm in part, reverse in part, and remand this matter to the district court for further proceedings.
[12] I. Background
[13] Under Kan. Admin. Regs. 44-12-601(q)(3), prison officials at the Lansing Correctional Facility are required to censor, and not permit into the facility, all publications mailed to inmates which contain obscenity. Kan. Admin. Regs. 44-12-313(b) defines "obscenity" as follows:
[14] Any material is obscene if the average person applying contemporary community standards would find that the material, taken as a whole: (1) appeals to the prurient interest; (2) has patently offensive representations or descriptions of (A) ultimate sex acts, normal or perverted, actual or simulated, including sexual intercourse or sodomy; or (B) masturbation, excretory functions, sadomasochistic abuse, or lewd exhibition of the genitals; and (3) would not be considered by a reasonable person to have serious literary, educational, artistic, political, or scientific value.
[15] This definition is in accordance with the definition of obscenity articulated by the United States Supreme Court in Miller v. California, 413 U.S. 15, 24-25 (1973).
[16] As we understand his complaint, plaintiff is not challenging the prison officials' authority to censor and exclude obscene materials from the prison. Instead, plaintiff alleges that defendants have acted in an arbitrary and capricious manner in censoring non-obscene publications and correspondence that were mailed to him at the prison; that defendants have seized publications and correspondence without promptly notifying him of the decisions to withhold the materials from him; that defendants have converted his publications and correspondence for their own personal use; and that defendants have treated him differently from other inmates because other inmates have been permitted to receive the same or similar types of non-obscene pornographic materials. Plaintiff alleges that defendants have thereby violated his rights under the First and Fourteenth Amendments; he seeks to recover damages and has requested both declaratory and injunctive relief.
[17] In support of the allegations in his complaint, and as evidence that he has exhausted all available administrative remedies, plaintiff attached documentation to his complaint which shows the following:
[18] 1. On September 30, 1999, plaintiff submitted grievance No. AA20000209, complaining that employees in the prison's mail room had seized and censored his copy of the December 1999 issue of Hawk magazine. Plaintiff claimed that the issue was not obscene and should not have been censored since it did not contain any photographs showing sexual penetration. He further claimed on appeal that another inmate at the prison had been permitted to receive a copy of the issue. On appeal to the Secretary of Corrections, a designee of the secretary determined that it was not necessary to take any action on plaintiff's grievance because the warden's office had advised that plaintiff was permitted to receive the issue.
[19] 2. On October 11, 1999, plaintiff submitted grievance No. AA20000254, complaining that employees in the prison's mail room had seized and censored his copy of the December 1999 issue of Hawk magazine. On appeal to the Secretary of Corrections, a designee of the secretary determined that it was not necessary to take any action on plaintiff's grievance because the issue was not being censored.
[20] 3. On October 28, 1999, plaintiff submitted a property damage claim, No. AA0105772, seeking to recover the $10.00 cost of the December 1999 issue of Hawk magazine. On appeal to the Department of Corrections, a designee of the department recommended disapproval of the claim because the issue had been approved and there was no proof it had not been sent to plaintiff.
[21] 4. On February 7, 2000, plaintiff submitted grievance No. AA20000599, complaining that employees in the prison's mail room had seized and censored his copy of the April 2000 issue of Hawk magazine and thereby violated his rights under the First Amendment. On appeal to the Secretary of Corrections, a designee of the secretary determined that the issue contained photographs depicting full sexual penetration and was properly censored as containing obscenity.
[22] 5. On February 28, 2000, plaintiff submitted grievance No. AA20000671, complaining that employees in the prison's mail room had seized and censored his copy of the May 2000 issue of Hawk magazine and thereby violated his rights under federal law. On appeal to the Secretary of Corrections, a designee of the secretary determined that the issue contained photographs depicting oral sexual penetration and bodily fluids and was properly censored as containing obscenity.
[23] 6. In March 2000, plaintiff submitted grievance No. AA20000713, complaining that he had ordered a back issue of the December 1999 issue of Hawk magazine and been permitted to receive the back issue, but his copy of the back issue was subsequently confiscated by a prison official. On appeal to the Secretary of Corrections, a designee of the secretary determined that the back issue was properly confiscated because it contained obscenity in the form of photographs depicting simulated sexual activity and discharged sexual fluids, and the prior determination that plaintiff was permitted to receive the issue was in error. (On March 14, 2000, plaintiff submitted a similar grievance regarding the confiscation of the back issue, No. AA0000723, and it was resolved on the same grounds as grievance No. AA0000713.)
[24] 7. On March 10, 2000, plaintiff submitted grievance No. AA20000724, complaining that he had received a censor notice informing him that he could no longer receive pen pal correspondence from an individual in Pennsylvania and that a letter from the individual had been seized. On appeal to the Secretary of Corrections, a designee of the secretary determined that the prison did not have a per se ban on pen pal correspondence and that the letter had been improperly seized.
[25] 8. On May 19, 2000, plaintiff submitted grievance No. AA20000942, complaining that employees in the prison's mail room had, without providing any prior notice to him, seized letters and photographs sent to him from a woman in Rhode Island and returned the letters and photographs to her. Plaintiff claimed the photographs were of women in panties or swimsuits and that none of the photographs contained pictures depicting sexual penetration or bodily fluids. On appeal to the Secretary of Corrections, a designee of the secretary determined that no further action was necessary because a prison official had advised that the mail room had not censored any of plaintiff's mail and returned it to the sender and plaintiff had failed to show that this was incorrect.
[26] 9. On May 19, 2000, plaintiff submitted grievance No. AA20000943, complaining that he had not received his copy of the August 2000 issue of Hawk magazine or a censor notice regarding the issue. The basis of plaintiff's grievance is unclear, however, because he did not claim that the employees had thereby violated his rights under federal law or the governing state regulations regarding obscenity. On appeal to the Secretary of Corrections, a designee of the secretary determined that the issue was properly seized and censored because it contained photographs depicting oral sexual penetration and bodily fluids resulting from sexual activity and was properly censored as containing obscenity.
[27] 10. Plaintiff filed property damage claims with the Joint Committee on Special Claims against the State, Nos. 4781 and 4859, seeking to recover the cost of the initial and backup issues of the December 1999 issue of Hawk magazine. In June 2000, the committee denied the claims.
[28] (In addition to the grievances summarized above, plaintiff also attached copies of a number of other grievances to his complaint. We need not address the additional grievances, however, because they do not pertain to any of the claims asserted in plaintiff's complaint.)
[29] In September 2001 the district court entered a sua sponte order dismissing plaintiff's complaint under 28 U.S.C. § 1915(e)(2)(B). (Section 1915 applied to the district court proceedings because the court granted plaintiff's motion for leave to proceed in forma pauperis.) First, under § 1915(e)(2)(B)(i), the court found that plaintiff's First Amendment claims were frivolous. The court based its frivolousness determination on its review of the documents attached to plaintiff's complaint. According to the court, "[t]he grievance responses show adequate and reasonable bases for the decision to censor the materials in question under the standards set out in [Kan. Admin. Regs.] 44-12-313, and the complaint and attachments provide no support for arbitrary and capricious rule-making."
[30] Second, with respect to plaintiff's claim that defendants converted his magazines for their own personal use, the court found that the claim was "wholly unsupported," and thus frivolous under § 1915(e)(2)(B)(i). According to the court, "[t]he record suggests only that defendants retained the material to inspect its contents. Such a review is necessary to apply the [obscenity] standards set forth in the state regulations."
[31] Third, with respect to plaintiff's claim that defendants seized publications and correspondence without promptly notifying him of the decisions to withhold the materials from him, the court found that plaintiff failed to exhaust fully his notice claim in the prison grievance proceedings. Thus, the court determined that the claim was barred by 42 U.S.C. § 1997e(a).
[32] Finally, in accordance with § 1915(e)(2)(B)(ii), the court found that plaintiff had failed to state an equal protection violation. According to the court, "the record suggests only that a single issue of a magazine confiscated from plaintiff's mail was delivered to another inmate and that plaintiff successfully challenged a single instance of the withholding of pen pal correspondence . . . . [T]he court finds the limited nature of the alleged inequality is simply insufficient to support a claim of purposeful discrimination."
[33] II. Analysis
[34] 1. First Amendment Claims
[35] We review the district court's dismissal under 28 U.S.C. § 1915(e)(2)(B)(i) for an abuse of discretion. See McWilliams v. Colorado, 121 F.3d 573, 574-75 (10th Cir. 1997); but see Basham v. Uphoff, No. 98-8013, 1998 WL 847689, at *4 n.2 (10th Cir. Dec. 8, 1998) (unpublished) (questioning whether de novo standard of review should apply to dismissals under § 1915(e)(2)(B)(i) in light of the changes to the statute under the Prison Litigation Reform Act of 1995); Lowe v. Sockey, No. 00-7109, 2002 WL 491731, at **2 (10th Cir. Apr. 2, 2002) (unpublished) (same). The standard of review is not determinative of this appeal, however, because we reach the same conclusions under either the de novo or the abuse-of-discretion standard of review.
[36] Under § 1915(e)(2)(B)(i), district courts have the "unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Neitzke v. Williams, 490 U.S. 319, 327 (1989) (construing former § 1915(d)). Nonetheless, a district court may not dismiss a complaint as frivolous "simply because the court finds the plaintiff's allegations unlikely." Denton v. Hernandez, 504 U.S. 25, 33 (1992).
[37] In other words, the . . . frivolousness determination, frequently made sua sponte before the defendant has even been asked to file an answer, cannot serve as a factfinding process for the resolution of disputed facts[,] . . . [and] 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[.] Id. at 32-33 (internal quotation marks and citations omitted).