The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS FINDING THAT PLAINTIFF STATES COGNIZABLE C L A I M S A N D RECOMMENDING DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS (ECF No. 14) OBJECTIONS DUE WITHIN THIRTY (30) / DAYS SCREENING ORDER
On August 16, 2012, Plaintiff James Cato, Jr., a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.)
On November 30, 2012, Plaintiff's Complaint was screened and dismissed, with leave to amend, for failure to state a cognizable claim. (ECF No. 11.) Plaintiff filed a First Amended Complaint (ECF No. 12) which the Court found stated a single cognizable claim; all other claims were dismissed with leave to amend. (ECF No. 13.) Plaintiff was given leave to amend or proceed on his cognizable claim alone. (Id.) Plaintiff elected to file a Second Amended Complaint. (ECF No. 14.) Plaintiff's Second Amended Complaint is now before the Court for screening.
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, malicious," or 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).
Section 1983 "provides a cause of action for the 'deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).
III. SUMMARY OF SECOND AMENDED COMPLAINT
The Second Amended Complaint names the following individuals as Defendants:
(1) Kathleen Dickinson, Director, California Department of Corrections and Rehabilitation
(CDCR); (2) K. Nash, Correctional Captain, Pleasant Valley State Prison (PVSP); and (3)
W. Brambaugh, Correctional Officer, PVSP.
Plaintiff alleges the following: Defendant Dickinson has promulgated and enforced California Code of Regulations, title 15, section 3006(c)(15)(A), which prohibits inmates from possessing obscene material. Section 3006(c)(15)(A) adopts the definition of "obscene" provided in California Penal Code section 311 yet omits unspecified language and directives contained in section 311. Prison officials have cited this section as authority to confiscate sexually explicit photographs and advertisements addressed to Plaintiff. The obscenity regulation violates Plaintiff's First Amendment right to receive mail because it is not reasonably related to a legitimate penological interest. (Compl. at 4.)
On August 20, 2008, Defendant Nash authorized the confiscation of three photographs from Plaintiff's mail at his own discretion and not pursuant to any published regulation. (Id.) According to the mail room contraband form, attached to the amended complaint, the photographs were blackened and altered. No operative ...