United States District Court, N.D. California
ORDER RE: COMPLAINT
Phyllis J. Hamilton, United States District Judge.
a state prisoner, proceeds with a pro se civil rights
complaint under 42 U.S.C. § 1983. He has paid the filing
courts must engage in a preliminary screening of cases in
which prisoners seek redress from a governmental entity or
officer or employee of a governmental entity. 28 U.S.C.
§ 1915A(a). In its review the court must identify any
cognizable claims, and dismiss any claims which are
frivolous, malicious, fail to state a claim upon which relief
may be granted, or seek monetary relief from a defendant who
is immune from such relief. Id. at 1915A(b)(1), (2).
Pro se pleadings must be liberally construed. Balistreri
v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th
Rule of Civil Procedure 8(a)(2) requires only "a short
and plain statement of the claim showing that the pleader is
entitled to relief." "Specific facts are not
necessary; the statement need only '"give the
defendant fair notice of what the . . . . claim is and the
grounds upon which it rests."'" Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (citations omitted).
Although in order to state a claim a complaint “does
not need detailed factual allegations, . . . a
plaintiff's obligation to provide the 'grounds'
of his 'entitle[ment] to relief' requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do. . . . Factual
allegations must be enough to raise a right to relief above
the speculative level." Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A
complaint must proffer "enough facts to state a claim to
relief that is plausible on its face." Id. at
570. The United States Supreme Court has recently explained
the “plausible on its face” standard of
Twombly: “While legal conclusions can provide
the framework of a complaint, they must be supported by
factual allegations. When there are well-pleaded factual
allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.” Ashcroft v. Iqbal, 556 U.S. 662,
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege two essential elements: (1) that a right secured by
the Constitution or laws of the United States was violated,
and (2) that the alleged deprivation was committed by a
person acting under the color of state law. West v.
Atkins, 487 U.S. 42, 48 (1988).
describes many instances of interference with his legal mail
and legal publications. He seeks money damages.
have a constitutional right of access to the courts. See
Lewis v. Casey, 518 U.S. 343, 350 (1996); Bounds v.
Smith, 430 U.S. 817, 821 (1977). To establish a claim
for any violation of the right of access to the courts, the
prisoner must prove that there was an inadequacy in the
prison's legal access program that caused him an actual
injury. See Lewis, 518 U.S. at 349-51. To prove an
actual injury, the prisoner must show that the inadequacy in
the prison's program hindered his efforts to pursue a
non-frivolous claim concerning his conviction or conditions
of confinement. See id. at 351, 354-55.
enjoy a First Amendment right to send and receive mail.
See Witherow v. Paff, 52 F.3d 264, 265 (9th Cir.
1995) (citing Thornburgh v. Abbott, 490 U.S. 401,
407 (1989)). 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." See
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. See Thornburgh, 490 U.S. at 413.
officials may institute procedures for inspecting
“legal mail, ” e.g., mail sent between attorneys
and prisoners, see Wolff v. McDonnell, 418 U.S. 539,
576-77 (1974) (incoming mail from attorneys), and mail sent
from prisoners to the courts, see Royse v. Superior
Court, 779 F.2d 573, 574-75 (9th Cir. 1986) (outgoing
mail to court). But “prisoners have a protected First
Amendment interest in having properly marked legal mail
opened only in their presence.” Hayes v. Idaho
Correctional Center, 849 F.3d 1204, 1211 (9th Cir.
2017). See also O'Keefe v. Van Boening, 82 F.3d
322, 325 (9th Cir. 1996) (the opening and inspecting of
"legal mail" outside the presence of the prisoner
may have an impermissible "chilling" effect on the
constitutional right to petition the government). A plaintiff
need not allege a longstanding practice of having his mail
opened outside his presence in order to state a claim for
relief. Hayes, 849 F.3d at 1218 (allegation that
protected mail was opened outside plaintiff's presence on
two separate occasions sufficient to state First Amendment
mail" may not be read or copied without the
prisoner's permission. See Casey v. Lewis, 43
F.3d 1261, 1269 (9th Cir. 1994), rev'd on other
grounds, 518 U.S. 343 (1996). The Ninth Circuit has
emphasized that there is a clear difference between
inspecting outgoing legal mail for contraband and
reading it under Wolff, 418 U.S. 539 at
577, such that prison officials may not circumvent this
prohibition by reading an inmate's outgoing legal mail in
his presence because this practice does not ameliorate the
chilling effect on the inmate's Sixth Amendment rights.
See Nordstrom v. Ryan, 762 F.3d 903, 911 (9th Cir.
2014) (Nordstrom I) (reversing district court's
dismissal of the complaint for failure to state a claim after
finding complaint stated a cognizable 6th Amendment claim
based on prisoner's allegations that prison officials
read his legal mail, that they claimed entitlement to do so,
and his right to private consultation with counsel was
chilled); Nordstrom v. Ryan, 856 F.3d 1265, 1272
(9th Cir. 2017) (Nordstrom II) (on appeal after
remand of Nordstrom I, holding that prison policy
requiring officials to confirm that outgoing letters
qualified as legal mail failed to meet standard that
officials may inspect but not read outgoing legal mail). But
again, prison officials may establish that legitimate
penological interests justify the policy or practice. See
O'Keefe, 82 F.3d at 327.
deliberate delay of legal mail which adversely affects legal
proceedings presents a cognizable claim for denial of access
to the courts. See Jackson v. Procunier, 789 F.2d
307, 311 (5th Cir. 1986). Isolated incidents of mail
interference without any evidence of improper motive or
resulting interference with the right to counsel or access to
the courts do not give rise to a constitutional violation,
however. See Smith v. Maschner, 899 F.2d 940, 944
(10th Cir. 1990); Morgan v. Montanye, 516 F.2d 1367,