ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND (Doc. 1) AMENDED COMPLAINT DUE WITHIN THIRTY DAYS
Matthew Patrick Schorr ("Plaintiff") is a federal prisoner proceeding pro se and in forma pauperis, in this civil rights action pursuant to 42 U.S.C. § 1983. On June 1, 2011, Plaintiff filed the complaint which is presently before this Court. Doc. 1.
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, or portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted if it appears beyond doubt that Plaintiff can prove no set of facts in support of the claim or claims that would entitle him to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); see also Synagogue v. United States, 482 F.3d 1058, 1060 (9th Cir. 2007); NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). In determining whether to dismiss an action, the Court must accept as true the allegations of the complaint in question, and 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, 421-22 (1969); Daniels-Hall v. National Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010).
III. Plaintiff's Complaint
Plaintiff is currently a federal prisoner the Federal Correctional Institution in Memphis, Tennessee. Doc. 14; Doc. 15. The events central to Plaintiff's complaint occurred while he was at the Fresno County Jail (FCJ) in Fresno, California.*fn1 Doc. 1. In the complaint, Plaintiff names the following defendants: 1) Margaret Mims (Sherif at FCJ); 2) Rick Hill (Captain at FCJ); 3) Susan Watkins (Captain at FCJ); 4) M. Porter (Lieutenant at FCJ); 5) Mendez (Lieutenant at FCJ); 6) Barton (Sergeant at FCJ); 7) Egbuziem (Sergeant at FCJ); 8) Lockie (Sergeant at FCJ); 9) Veloz (Corporal at FCJ); 10) Menchaca (Corporal at FCJ); 11) J. Rodriguez (Corporal at FCJ); 12) Arvizu (Correctional Officer at FCJ); 13) Bustenza (Correctional Officer at FCJ); 14) Davis (Correctional Officer at FCJ); 15) W. Herr (Correctional Officer at FCJ); 16) Mason (Correctional Officer at FCJ);
17) Rogers (Correctional Officer at FCJ); 18) J. Ruiz (Correctional Officer at FCJ); 19) Sicairos (Correctional Officer at FCJ); and 20) Venture (Correctional Officer at FCJ). Doc. 1 at 1-2. Plaintiff seeks injunctive relief in addition to compensatory and punitive damages. Doc. 1 at 3.
Plaintiff alleges that as a matter of policy, the Fresno County Detention Bureau staff read his outgoing letters to his attorneys. Doc. 1 at 3. On March 16, 2011, Defendant Herr read Plaintiff's letter to an attorney stating it was his duty to "scan" legal mail. Doc. 1 at 3. Plaintiff filed a grievance about Defendant Herr's actions and Defendants Egbuziem, Mendez and Hill found Plaintiff's grievance "not sustained." Doc. 1 at 3. On April 11, 2011, Plaintiff filed another grievance because Defendant Veloz read Plaintiff's legal mail and Defendant Veloz responded that he was scanning to determine if Plaintiff's mail was legal mail and scanning the mail for threats as per policy. Doc. 1 at 3. Defendants Barton, Porter and Wa1tkins found Plaintiff's grievance to be "not sustained." Doc. 1 at 3. On May 3, 2011, Plaintiff submitted a grievance to Defendant Mims regarding the legal mail policy. Doc. 1 at 3. In the grievance, Plaintiff names Defendants Rodriguez, Veloz, Menchaca, Davis, Ruiz, Ventura, Arivizu, Sicaires, Bustenza and Rogers as reading his legal mail. Doc. 1 at 3. On May 24, 2011, Defendant Lockie informed Plaintiff that his grievance was "not sustained." Doc. 1 at 3.
IV. Legal Standards and Analysis
The mere fact that prison officials open and conduct a visual inspection of a prisoner's legal correspondence does not state a claim for violation of a prisoner's constitutional rights. See Wolff v. McDonnell, 418 U.S. 539, 576-77 (1974); Mitchell v. Dupnick, 75 F.3d 517, 523 (9th Cir. 1996). Prison officials may, consistent with the First Amendment, open mail from attorneys in the presence of the prisoner for visual inspection. See Wolff v. McDonnell, 418 U.S. 539, 576-7 (1974); Sherman v. MacDougall, 656 F.2d 527, 528 (9th Cir. 1981). In Wolff v. McDonnell, the Supreme Court noted that inspecting mail from attorneys in the presence of the inmate did all, and perhaps even more, than the Constitution requires. Id. at 577.
The issue of whether or not prison officials may also, consistent with the First Amendment, open and visually inspect mail from attorneys outside the presence of the prisoner has not been decided by the Supreme Court or by the Ninth Circuit. In Wolff v. McDonnell, the legal mail at issue was mail sent to respondent from his own attorney. Correspondence between an attorney and a client is entitled to special protection under the attorney-client privilege. "Mail from the courts, as contrasted to mail from a prisoner's lawyer, is not legal mail." Keenan v. Hall, 83 F.3d 1083, 1094 (9th Cir. 1996). "All correspondence from a court to a litigant is a ...