The opinion of the court was delivered by: David Alan Ezra United States District Judge
ORDER DISMISSING AMENDED COMPLAINT PURSUANT TO 28 U.S.C. § 1915A
Plaintiff Eric Angel Thomas is a California state prisoner proceeding pro se, seeking relief pursuant to 42 U.S.C § 1983. Plaintiff alleges that Defendants Carl Ross, Folsom State Prison ("FSP") Mailroom Supervisor, J. McNeal, R.J. Donovan Correctional Facility ("R.J. Donovan") Mailroom Supervisor, and M.C. Kramer, position unidentified, violated his constitutional rights by interfering with his legal mail during a two-week period in 2006. Specifically, Plaintiff alleges that Defendants Ross and McNeal failed to ensure that unidentified mailroom personnel at their respective prisons followed California Department of Corrections and Rehabilitation ("CDCR") policy regarding the handling of prisoners' legal mail. Defendants Ross and McNeal are named in their official capacity only; it is unclear in what capacity Defendant Kramer is named. Plaintiff seeks permanent injunctive relief prohibiting CDCR employees from interfering with his confidential correspondence. For the following reasons, the court DISMISSES the Amended Complaint for failure to state a claim with leave granted to amend. See 28 U.S.C. § 1915A.
The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if a plaintiff raises claims that are legally frivolous or malicious, that fail to state a claim for which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1-2). A complaint may be dismissed as a matter of law for failure to state a claim for two reasons: (1) lack of a cognizable legal theory; or (2) insufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir. 1990).
While a complaint does not need detailed factual allegations, "a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do . . . Factual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact) . . . ." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964-65 (2007) (citations and footnote omitted), abrogating Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (dismissal under Rule 12(b)(6) is appropriate "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.").
Because Plaintiff is pro se, the court construes the allegations of the pleading liberally and affords him the benefit of any doubt. Karim-Panahi v. Los Angeles Police Dep't., 839 F.2d 621, 623 (9th Cir. 1988). Moreover, in determining whether a complaint states a claim on which relief may be granted, allegations of material fact are taken as true and construed in the light most favorable to the plaintiff. Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). If the court determines that a pleading could be cured by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc).
Plaintiff alleges that his First and Fourth Amendment rights were violated when his legal mail was opened outside of his presence and was then forwarded unopened to his new prison. Amd. Comp., Statement of Claim. In May 2007, Plaintiff's appellate counsel sent an envelope containing Plaintiff's trial court transcripts to Plaintiff at R.J. Donovan. Plaintiff, however, had been transferred to FSP on December 4, 2006. Plaintiff alleges that unknown R.J. Donovan mailroom employees "failed to follow [CDCR] policy in regard to legal mail procedure" by opening the mail, and then by forwarding the opened mail to Plaintiff at FSP. Id. Plaintiff alleges that McNeal, the R.J. Donovan Mailroom Supervisor, is responsible for failing to ensure his employees followed CDCR legal mail policies. Plaintiff alleges that Ross, the FSP Mailroom Supervisor, is responsible for failing to notify Plaintiff that his mail arrived opened and without its original envelope. Plaintiff does not allege that he suffered any harm to any court proceeding stemming from this incident. Plaintiff simply complains that he was unsure whether the mail packet was complete when he received it, as it arrived open and without an envelope, requiring him to confer with his attorney as to the original contents of the envelope.
A. No Fourth Amendment Violation
Plaintiff apparently alleges that his mail was subject to an illegal search and seizure in violation of the Fourth Amendment, when it was opened by prison personnel outside of his presence, rather than being immediately forwarded to him unopened. It is well-settled that a state prisoner has no reasonable expectation of privacy in his cell and is not entitled to Fourth Amendment protection against unreasonable searches and seizures. See Hudson v. Palmer, 468 U.S. 517, 527-28 (1984); Nakao v. Rushen, 766 F.2d 410, 412 (9th Cir. 1985). This analysis applies equally to an inmate's incoming mail. See Mitchell v. Dupnik, 75 F.3d 517, 522 (9th Cir. 1996) (holding that pre-trial detainee has no reasonable expectation of privacy in cell; no Fourth Amendment violation when inmate not present during search of legal materials). Thus, the issue of whether a prison official can open legal materials outside of an inmate's presence is more appropriately considered under the First Amendment. Insofar as Plaintiff alleges a violation of the Fourth Amendment, he fails to state a claim.
B. No First Amendment Violation
Prisoners have a First Amendment right to send and receive mail, subject to reasonable institutional restrictions and regulations unrelated to the suppression of free expression. Thornburgh v. Abbott, 490 U.S. 401, 413 (1989); Procunier v. Martinez, 416 U.S. 396, 408-09 (1974), overruled on other grounds by Thornburgh, 490 U.S. at 413-14; Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995). Prison officials may, consistent with the First Amendment, open mail from attorneys in the prisoner's presence for visual inspection. See Wolff v. McDonnell, 418 U.S. 539, 576-77 (1974); Sherman v. MacDougall, 656 F.2d 527, 528 (9th Cir. 1981). In Wolff, the Court noted that inspecting mail from attorneys in the presence of the inmate did all, and perhaps even more, than the Constitution requires. Id. at 577. The issue of whether or not prison officials may also, consistent with the First Amendment, open and visually inspect mail from attorneys outside the presence of the prisoner has not been decided by the Supreme Court or by the Ninth Circuit.
When a claim involves nothing more than occasional error, delay, or negligence in the handling of mail, however, with no resulting injury or prejudice to the prisoner, there is no constitutional violation. See Stevenson v. Koskey, 877 F.2d 1435, 1441 (9th Cir. 1989) (inadvertent opening of legal mail outside inmate's presence fails to state constitutional claim); Royse, 779 F.2d at 575 (prisoner did not show that inspection of mail addressed to a court delayed or hindered his access to the court); Bach v. Illinois, 504 F.2d 1100, 1102 (7th Cir. 1974) (isolated incident of mail delay is insufficient to state a constitutional claim). Here, the simple fact that Plaintiff's legal mail was ...