Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).
I. In Forma Pauperis Application
Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). Plaintiff has been without funds for six months and is currently without funds. Accordingly, the court will not assess an initial partial filing fee. 28 U.S.C. § 1915(b)(1). Plaintiff is obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments shall be collected and forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
II. Cautionary Advisement
Plaintiff is no stranger to this court. In response to the question about previous lawsuits while a prisoner, plaintiff lists "6 active." This understates plaintiff's litigation history: court records reflect at least thirty civil rights actions filed by plaintiff. Plaintiff is certainly familiar with this court's duty to screen complaints filed by prisoners before a summons is issued. Nevertheless, plaintiff has filed a summons on the Judicial Council form used by the state courts and a notice of submission of documents, mimicking the form used by this court even though this court has not yet screened the case. Plaintiff is warned that should he continue to file summons forms and related documents before the court has found his complaint appropriate for service, he faces sanctions, up to and including dismissal of the case.
III. Screening of Complaint
The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon 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 claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.
In order to avoid dismissal for failure to state a claim a complaint must contain more than "naked assertions," "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Furthermore, a claim upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. When considering whether a complaint states a claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
In the first section, plaintiff alleges that defendants Hall, Stouch, Browne and Sprenger, correctional officers at Deuel Vocational Institution, read legal mail sent to plaintiff from the Woodland Police Department in response to plaintiff's Public Records Act request, and withheld this mail, including a CD relating to plaintiff's criminal case, for twelve days after it arrived at DVI. These defendants also "misteriously [sic] stapled back together" plaintiff's legal mail. Complaint (Compl.) at 14-15.*fn1
Defendant Tuckwiller, also a correctional officer at DVI, read plaintiff's "confidential records from the federal east. district court." Id. at 16. Defendants Tuckwiller and Hiers also read the legal mail from the Woodland Police Department and then left it on a table where other inmates could see it. Id. at 16-17. Plaintiff was given a pass to see defendant Hayes, who said he had read and copied plaintiff's legal mail and the CD and was going to destroy it. Hayes eventually gave plaintiff some of the documents, although plaintiff needs all of them in connection with the appeal from his criminal conviction. Id. at 20.
It is an open question in this Circuit as to whether allegations that prison officials have opened and inspected legal correspondence outside the presence of an inmate state a claim for relief. Sherman v. MacDougall, 656 F.2d 527 (9th Cir 1981). Mail from the courts, however, is not legal mail. Keenan v. Hall, 83 F.3d 1083, 1094 (9th Cir. 1996). Accordingly, to the extent that plaintiff alleges defendants opened and read mail from the ...