The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
COMPLAINT DISMISSED WITH LEAVE TO (ECF No. 1) AMENDED COMPLAINT DUE WITHIN THIRTY DAYS AMEND SCREENING ORDER
Plaintiff Kenny Calihan ("Plaintiff"), a state prisoner in the custody of the California Department of Corrections and Rehabilitation, is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the action on August 6, 2009; he consented to Magistrate Judge jurisdiction August 14, 2009. (ECF Nos. 1 & 5.) Plaintiff's Complaint is now before the Court for screening.
For the reason set forth below, the Court finds that Plaintiff's Complaint fails to state a claim upon which relief may be granted.
II. SCREENING REQUIREMENTS
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). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[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) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949.
III. SUMMARY OF COMPLAINT
Plaintiff, currently incarcerated at Corcoran State Prison, brings this action for violation of his First Amendment right to send and receive mail. He claims an ongoing problem since sometime in 2008. Plaintiff names the following individuals as Defendants: Mr. D. Adams, Warden at Corcoran State Prison; Mr. B. Silva, Mail Room Supervisor; Sgt.
A. Morrison, Sergeant, 4A-Facility; and Captain R. Flores, Captain Investigation Service Unit. Plaintiff also named Officer Angie Covert, Investigation Service Unit and Officer Mr.
R. G. Castro, Investigation Service Unit, as Defendants in his Complaint, but has since withdrawn their names from this action. (ECF No. 27.)
Plaintiff alleges as follows: Plaintiff's incoming and outgoing mail has been interfered with and photographs have been confiscated by Defendants Silva, Morrison, and Flores. The confiscated property included personal photographs of Charles Manson. Plaintiff spoke with Defendant Morrison and told him the interference and confiscations were a violation of federal law and prison mail policies. Defendant Morrison claimed that prison staff, including the ISU, could confiscate mail without notice. Plaintiff asserted his claims through the prison appeal process on December 17, 2008. Since then, under the direction of the Warden, Defendants have held, flagged, and delayed Plaintiff's incoming and outgoing mail. Defendant Silva took all of Plaintiff's mail from the mail room to ISU. ISU was under the supervision of Defendant Flores. Defendant Covert looked through Plaintiff's mail for items depicting Charles Manson; her investigation was inconclusive. Defendant Castro then continued the investigation and has held, flagged, sat-on, and restricted Plaintiff's mail.
The Civil Rights Act under which this action was filed provides:
Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983. "Section 1983 . . . creates a cause of action for violations of the federal Constitution and laws." Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997) (internal quotations omitted).
Plaintiff claims that his First Amendment right to send and receive mail is being violated. The Court infers that Plaintiff is also claiming a Fourth Amendment violation in alleging that prison officials are wrongfully searching his mail and seizing photographs. Although not specifically stated, Plaintiff also appears to be asserting a due process claim based on Defendants' failure to provide him notice of the mail interference and confiscations. Plaintiff also claims that his due process rights were violated by the confiscation of his personal property. Finally, it appears that he is alleging retaliation for having pursued his constitutional rights. Plaintiff requests monetary compensation and injunctive relief. Each claim will be addressed below.
Plaintiff claims his First Amendment right to send and receive mail is being violated. Prisoners have "a First Amendment right to send and receive mail." Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995) (per curiam). However, there must be a "delicate balance" between prisoners' First Amendment rights and the discretion given to prison administrators to govern the order and security of the prison. Thornburgh v. Abbott, 490 U.S. 401, 407-408 (1989). Prison officials have more leeway to regulate incoming than outgoing mail because of the greater security risks inherent in materials coming into a prison. Id. at 413.
As stated above, prisoners enjoy a First Amendment right to send and receive mail. Witherow, 52 F.3d at 265 (citing Thornburgh, 490 U.S. at 407). A prison, however, may adopt regulations or practices which impinge on a prisoner's First Amendment rights as long as the regulations are "reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89 (1987). The Turner standard applies to regulations and practices concerning all correspondence between prisoners and to regulations concerning incoming mail received by prisoners from non-prisoners. Thornburgh, 490 U.S. at 413.
Prison officials have a responsibility to forward mail to inmates promptly. Bryan v. Werner, 516 F.2d 233, 238 (3d Cir. 1975). Allegations that mail delivery was delayed for an inordinate amount of time are sufficient to state a claim for violation of the First Amendment. Antonelli v. Sheahan, 81 F.3d 1422, 1432 (7th Cir. 1996). However, a temporary delay or isolated incident of delay does not violate a prisoner's First Amendment rights. Crofton v. Roe, 170 F.3d 957, 961 (9th Cir. 1999) (policy of diverting publications through property room reasonably related to prison's interest in inspecting mail for contraband).
In this case, Plaintiff alleges regular, ongoing delays of between twenty-one and thirty-five day delays in receiving his incoming mail. The Court finds that such an alleged delay not shown to be reasonably related to a legitimate prison goal is sufficiently long to substantially burden Plaintiff's First Amendment rights and chill his exercise of free speech. Thus, under the First Amendment right to freedom of speech, the Court finds that Plaintiff has stated a claim upon which relief may be granted.
However, Plaintiff fails to attribute this action to a named Defendant. His Complaint states that Defendant Silva supervises the mail room and that Defendant Flores supervises the ISU, but does not allege that either of these two Defendants personally interfered with his mail. Thus, Plaintiff must amend and ...