Kenneth Smith, formerly confined at the Sacramento County Jail, filed this pro se civil rights action under 42 U.S.C. § 1983. In addition to filing a complaint, plaintiff has filed an application to proceed in forma pauperis. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1) and is before the undersigned pursuant to plaintiff's consent. See E.D. Cal. Local Rules, Appx. A, at (k)(4).
I. Request to Proceed In Forma Pauperis
Plaintiff has requested leave to proceedin forma pauperis pursuant to 28 U.S.C. § 1915. Dckt. No. 2. Plaintiff's application makes the showing required by 28 U.S.C. § 1915(a)(1) and
(2). Accordingly, the request will be granted.
Pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), the court must dismiss plaintiff's case if at any time the court determines that it fails to state a claim on which relief may be granted. The court must construe a pro se pleading "liberally" to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an opportunity to cure them. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000). While detailed factual allegations are not required, "[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 to relief that is plausible on its face.'" Id. (quoting 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. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.
Id. (citations and quotation marks omitted). Although legal conclusions can provide the framework of a complaint, they must be supported by factual allegations, and are not entitled to the assumption of truth. Id. at 1950.
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. An individual defendant is not liable on a civil rights claim unless the facts establish the defendant's personal involvement in the constitutional deprivation or a causal connection between the defendant's wrongful conduct and the alleged constitutional deprivation. See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978)
The court has reviewed plaintiff's complaint pursuant to 28 U.S.C. § 1915A and finds it does not state a cognizable claim. Plaintiff alleges that an employee at the jail gave him his "legal confidential mail" with the "seal open." Dckt. No. 1 at 3. Defendant Bun told plaintiff that the mail was brought that way. Id. Plaintiff identifies the mail as "sent mail from eastern district court Sacramento 501 I Street certified mail letter from civil division." Id.
Prisoners have a First Amendment right to send and receive mail. See Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995) (per curiam). This right does not prohibit prison officials from opening prisoner mail in all instances, however. For example, prisons may implement a policy to intercept and censor outgoing mail concerning escape plans, proposed criminal activity, or encoded messages. Witherow, 52 F.3d at 266. Officials may also prohibit correspondence between inmates based on security concerns. Turner v. Safley, 482 U.S. 78, 93 (1987).
As to legal mail, review by prison officials is more restricted. Officials may not, for example, review outgoing legal mail for legal sufficiency before sending it to the court. See Ex Parte Hull, 312 U.S. 546, 549, 61 S. Ct. 640, 85 L. Ed. 1034 (1941). Whether legal mail may be persistently opened outside the inmate's presence is an open question in the Ninth Circuit. See Sherman v. MacDougall, 656 F.2d 527, 528 (9th Cir. 1981)(citing Taylor v. Sterrett, 532 F.2d 462 (5th Cir. 1976), Bach v. Illinois, 504 F.2d 1100 (7th Cir. 1974) (per curiam), and Smith v. Robbins, 454 F.2d 696 (1st Cir. 1972)). At least one court in this circuit has concluded, based on citation to a Sixth Circuit case, that a "prison's 'pattern and practice' of opening confidential legal mail outside of [the] inmate's presence infringes upon [the] inmate's First Amendment rights and access to the courts." Oliver v. Pierce County Jail, 2007 U.S. Dist. LEXIS 34415, 2007 WL 1412843 (W.D. Wash. May 9, 2007) (citing Muhammad v. Pitcher, 35 F.3d 1081 (6th Cir. 1994)). Another court in this circuit has concluded that an isolated incident of opening legal mail does not arise to a constitutional violation. Battle v. Posadas, No. Civ. S-10-2135 FCD CMK P, 2011 U.S. Dist. LEXIS 6045, *2-4 (E.D. Cal. January 21, 2011); see also Gardner v.Howard, 109 F.3d 427, 431 (8th Cir. Neb. 1997) ("[W]e agree with other circuits that an 'isolated incident, without any evidence of improper motive or resulting interference with [the inmate's] right to counsel or to access to the courts, does not give rise to a constitutional violation.'" (quoting Smith v. Maschner, 899 F.2d 940, 944 (10th Cir. 1990)and citing Morganv. Montanye, 516 F.2d 1367, 1370-71 (2d Cir. 1975)).In addition, incoming mail from the courts, as opposed to mail from the prisoner's attorney, is not considered "legal mail" and may therefore be opened outside the inmate's presence. Keenan v. Hall, 83 F.3d 1083, 1094 (9th Cir. 1996), amended by 135 F.3d 1318 (9th Cir. 1998).
Here, plaintiff alleges only that the mail he received from this court was opened before it was given to him. Mail from this court is not "legal mail," and thus may be opened by jail staff before being given to plaintiff. Further, plaintiff does not allege that his "legal mail" was opened outside his presence on more than one occasion as part of a pattern and practice of the jail. Thus, plaintiff's allegations do not set out a violation of the constitution or other federal law, and to proceed plaintiff must file an amended complaint.
Any amended complaint must adhere to the following requirements: It must be complete in itself without reference to any prior pleading. E.D. Cal. Local Rule 220; see Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff ...