Mester v. Dickinson et al
Filing
109
ORDER signed by Magistrate Judge Kendall J. Newman on 10/13/11 ordering plaintiff's 09/23/11 and 10/03/11 filings 106 and 108 are disregarded. The 09/19/11 findings and recommendations 102 are vacated. (Plummer, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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MORRIS MESTER,
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Plaintiff,
No. 2:09-cv-3307 KJM KJN P
Defendant.
ORDER
vs.
REED,1
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/
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Plaintiff is a state prisoner proceeding without counsel. Plaintiff seeks relief
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pursuant to 42 U.S.C. § 1983. Plaintiff has filed documents stating that on two separate
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occasions he has received “legal mail” from the court that was already opened, outside his
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presence. (Dkt. Nos. 106, 108.)
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“The Supreme Court ha[s] held that [legal] mail may be opened in the presence of
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the addressee and that prison officials [can] require both that the letters be specially marked with
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the name and address of the attorney and that the attorney communicate first with prison
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officials.” Sherman v. MacDougall, 656 F.2d 527, 528 (9th Cir. 1981) (citing Wolff v.
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McDonnell, 418 U.S. 539, 575-77 (1974)). “Mail from the courts, as contrasted to mail from a
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Plaintiff’s claims against defendant Miller were dismissed on September 26, 2011.
(Dkt. No. 107.)
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prisoner's lawyer, is not legal mail.” Keenan v. Hall, 83 F.3d 1083, 1094 (9th Cir. 1996) (citation
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omitted). It is an open question in the Ninth Circuit whether legal mail may be opened outside of
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the prisoner's presence. Sherman, 656 F.2d at 528. However, the Ninth Circuit has held that an
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isolated instance or occasional opening of legal mail outside the inmate's presence does not rise
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to the level of a constitutional violation. Stevenson v. Koskey, 877 F.2d 1435, 1441 (9th Cir.
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1989).
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In the instant complaint, plaintiff alleges two incidents of mail from the court
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being opened outside plaintiff’s presence. Because this mail was from the court, prison officials
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were not required to open the mail in plaintiff’s presence. Keenan, 83 F.3d at 1094. Therefore,
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plaintiff is at risk of missing a court deadline if he refuses to accept mail from the court based on
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his misapprehension that court mail constitutes legal mail. Court orders and court filings, unless
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filed under seal, are a matter of public record.
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On September 19, 2011, the undersigned recommended that defendant Reed be
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dismissed from this action based on plaintiff’s failure to respond to the court’s August 9, 2011
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order to show cause. On September 22, 2011, plaintiff filed a response to the order to show
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cause. (Dkt. No. 105.) Therefore, the court vacates the September 19, 2011 findings and
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recommendations, and will address the issue of defendant Reed by separate order or findings and
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recommendations.
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In accordance with the above, IT IS HEREBY ORDERED that:
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1. Plaintiff’s September 23, 2011 and October 3, 2011 filings (dkt. nos. 106, 108)
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are disregarded; and
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2. The September 19, 2011 findings and recommendations (dkt. No. 102) are
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vacated.
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DATED: October 13, 2011
_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
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mest3307.vac
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