ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND (ECF No. 36) FOURTH AMENDED COMPLAINT DUE WITHIN THIRTY DAYS
Plaintiff Emelito Exmundo ("Plaintiff") is a state prisoner who is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action in California Superior Court, County of Kings, on April 9, 2007. (ECF No. 1, Attach. 1.) Defendants removed the action to federal court on November 26, 2007. (ECF No. 1.) Plaintiff's first and second amended complaints were dismissed, with leave to amend, for failure to state any cognizable claims. (ECF Nos. 17, 18, 26, & 30.)
Plaintiff filed his Third Amended Complaint on April 18, 2011. (ECF No. 36.) For the reasons set forth below, Plaintiff has again failed to state a cognizable claim upon which relief may be granted.
II. SCREENING REQUIREMENT
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 alleges interference with his mail, retaliation, excessive force, failure to protect, deliberate indifference to medical need, insufficient due process, violations of prison policies, conspiracies, and other state law claims. Plaintiff names the following individuals as Defendants: J. A. Tilton, M. Cate, D. G. Adams, R. Vella, Pina, H. Q. Gadsden, Speidell, Drew, Renteria, and Cooper.
Plaintiff alleges as follows: Defendant Renteria opened Plaintiff's confidential mail not in his presence. Then later Renteria refused to inspect Plaintiff's outgoing mail, then inspected it and told Plaintiff to seal it, but then refused to take it. Plaintiff filed a grievance. Everything that occurred after was in retaliation for that grievance against Renteria. Renteria delayed Plaintiff's mail by hours so that he had to wait to respond. He also refused to call Plaintiff to his assigned work, arbitrarily searched only Plaintiff before going into buildings, and gave Plaintiff's niece's letter to a child molester. Plaintiff filed another grievance. Then he started being retaliated against by other prison officials.
On February 15, 2006, Defendant Drew asked Plaintiff to withdraw the complaint. Cooper and Renteria then searched Plaintiff and went through his record all while requiring Plaintiff to keep his arms raised, causing Plaintiff great pain. On February 19, 2006, Cooper kicked Plaintiff's feet farther apart during a bodily search and again made him keep his arms up. Plaintiff filed a complaint against Defendants Pina, Drew, Cooper, Renteria, and Vella.
On March 24, 2006, Pina retaliated against Plaintiff by filing false rvrs against him. Defendant Gadsden removed Plaintiff from his job. Defendant Vella placed Plaintiff on C-status. During the hearing on the rvrs, Plaintiff was not allowed to call witnesses and was not allowed to be heard.
On May 6, 2006, Plaintiff was extracted from his cell by order of Vella.
During an ICC segregation hearing, Plaintiff was not allowed to call witnesses by Vella. Plaintiff was placed in ad-seg.
Plaintiff was not notified of the possibility of contracting Valley Fever.
Plaintiff requests declaratory and injunctive relief, and compensatory and punitive damages.
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 makes allegations of mail interference and retaliation both in violation of the First Amendment.
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.
The inspection for contraband of non-legal mail does not violate a prisoner's constitutional rights. See Witherow v. Paff, 52 F.3d 264, 265-66 (9th Cir. 1995) (upholding inspection of outgoing mail); Smith v. Boyd, 945 F.2d 1041, 1043 (8th Cir. 1991) (upholding inspection of incoming mail); Gaines v. Lane, 790 F.2d 1299, 1304 (7th Cir. 1986) (upholding inspection of outgoing and incoming mail).
The Ninth Circuit and other circuits have held that an isolated instance or occasional opening of inmate legal mail, outside of the inmate's presence, does not violate the Constitution. See Stevenson v. Koskey, 877 F.2d 1435, 1441 (9th Cir. 1989) (prison guard's opening of inmate's legal mail outside of the inmate's presence was, at most, negligence, and did not reach the level of intent necessary for constitutional violation); Brewer v. Wilkinson, 3 F.3d 816, 825 (5th Cir. 1993); Gardner v. Howard, 109 F.3d 427, 431 (8th Cir. 1997) (isolated, single instance of opening incoming confidential legal mail does not support a constitutional claim); Smith v. Maschner, 899 F.2d 940, 944 (10th Cir. 1990) (isolated incident of opening inmate legal mail "without evidence of improper motive or resulting interference with [the inmate's] right to counsel or to access the courts, does not give rise to a constitutional violation").
Plaintiff states that Defendant Renteria opened Plaintiff's confidential mail outside of his presence. Plaintiff does not state that it was legal mail. Assuming it was not legal mail, the inspection of it outside of Plaintiff's presence did not violate his rights. Assuming it was legal mail, isolated incidents of legal mail opening ...