The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Plaintiff is a state prisoner proceeding pro se. He seeks relief pursuant to 42 U.S.C. § 1983 and has requested authority pursuant to 28 U.S.C. § 1915 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).
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).
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.
A complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "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." Id.
In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S.Ct. 1848 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843 (1969).
Plaintiff names the following as defendants in this action: CSP*fn1 -Solano; C/O*fn2 De La Torre; C/O Frangos. Plaintiff alleges that the California Department of Corrections requires plaintiff's signature for delivery of his legal mail, as well as for medical ducats, medications and packages but does not issue pens or pencils to inmates for that purpose. Complaint, p. 4.*fn3
Plaintiff claims that defendant De La Torre refused to deliver plaintiff's legal mail (apparently on one occasion), and that defendant Frangos returned plaintiff's legal mail on November 17, 2011. Id. Plaintiff seeks injunctive relief and money damages. Id.
In the first place, although plaintiff claims it to be a "serious federal offense to impede" delivery of inmates' legal mail, he does not within his allegations frame a colorable claim of a violation of his civil rights. Plaintiff identifies Exhibit A as supporting his claim. Ex. A is a copy of an October 12, 2011, first-level appeal response, which recounts that plaintiff (appellant therein) stated that C/O De La Torre refused, on July 15, 2011, to issue plaintiff his legal mail because plaintiff did not have a pen; plaintiff contended that if the state requires his signature it must provide the means by which documents could be signed. Complaint at p. 6, Ex.
In the response, incorporated by plaintiff, the associate warden, sets forth that a review revealed that [defendant] De La Torre had instructed through staff that inmates to be released to receive their legal mail would have to be dressed in state-issued blue clothing and bring identification cards and a pen to sign for legal mail. Id. Plaintiff had arrived in the proper clothing with his ID card but without a pen. Id. De La Torre told plaintiff that he had to sign for his mail and that he could go back to his cell to retrieve one or borrow one from another inmate. Id. Citing CAL. CODE REGS. tit.xv, § 3143(b), which in part states: "Inmates shall sign for all confidential mail at the time of delivery," the appeal reviewer stated plaintiff had been provided another opportunity to sign for and receive his legal mail when he was later allowed use of the personal pen of a staff member. Id., at 6-7. Plaintiff's request to have C/O De La Torre to have a pen for inmates when distributing legal mail was denied. Id., at 7.
Plaintiff makes no showing of the denial of a constitutional right. Prisoners have a First Amendment right to receive and to send mail. Witherow v. Paff, 2 F.3d 264, 265 (9th Cir. 1995), citing Thornburgh v. Abbott, 490 U.S. 401, 407, 109 S. Ct. 1874, 1878-79 (1989). However, prisons may adopt regulations which impinge on a prisoner's First Amendment rights as long as those regulations are "reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254 (1987). Thus, plaintiff's right to receive his legal mail is not required to be a wholly uncircumscribed one in the prison context. Plaintiff makes no showing that he has been or will be denied access to his legal mail so long as he conforms with the prison's signing regulation. Nor does plaintiff make any showing that he is being denied his constitutional right simply because he objects to having to use his own writing ...