Corral v. Woodman

Filing 40

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 6/18/2019 RECOMMENDING defendant's 24 , 23 motion to dismiss be granted and plaintiff's 9 first amended complaint be dismissed with leave to amend. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DYLAN SCOTT CORRAL,

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Plaintiff,

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No. 2:18-CV-1769-KJM-DMC-P

v.

FINDINGS AND RECOMMENDATIONS

WOODMAN,

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Defendant.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

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42 U.S.C. § 1983. Pending before the court is defendant’s motion to dismiss (ECF Nos. 23 and

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24).

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I. PLAINTIFF’S ALLEGATIONS
This action proceeds on plaintiff’s first amended complaint (ECF No. 9). Plaintiff

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names Woodman, a correctional officer at the Glenn County Jail, as the only defendant and

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alleges that his constitutional rights were violated with respect to legal mail. Specifically, plaintiff

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claims that defendant Woodman not only withheld Plaintiff’s legal mail for 3 days but also

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opened Plaintiff’s legal mail outside of Plaintiff’s presence. According to plaintiff, on November

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11, 2017, defendant Woodman handed him mail marked “Confidential Legal Mail” which had

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arrived three days earlier and which had already been opened when it was handed to him. Plaintiff
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alleges that defendant Woodman told him that his item of mail had been held in order to “verify if

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it was considered legal mail.” Plaintiff states: “Cpl. Woodman stated she found out that mail from

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Community Legal Information Center was not considered legal mail.” Plaintiff claims that he has

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been damaged “because it was Plaintiff’s legal mail that was open [sic] outside of his presence.”

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II. STANDARD FOR MOTION TO DISMISS
In considering a motion to dismiss, the court must accept all allegations of material

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fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The court must

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also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes,

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416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740

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(1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All ambiguities or

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doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411,

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421 (1969). However, legally conclusory statements, not supported by actual factual allegations,

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need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009). In addition, pro se

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pleadings are held to a less stringent standard than those drafted by lawyers. See Haines v.

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Kerner, 404 U.S. 519, 520 (1972).

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Rule 8(a)(2) requires only “a short and plain statement of the claim showing that

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the pleader is entitled to relief” in order to “give the defendant fair notice of what the . . . claim is

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and the grounds upon which it rests.” Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007)

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(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order to survive dismissal for

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failure to state a claim under Rule 12(b)(6), a complaint must contain more than “a formulaic

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recitation of the elements of a cause of action;” it must contain factual allegations sufficient “to

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raise a right to relief above the speculative level.” Id. at 555-56. The complaint must contain

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“enough facts to state a claim to relief that is plausible on its face.” Id. at 570. “A claim has

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facial plausibility when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at

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1949. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more

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than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S.
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at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability,

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it ‘stops short of the line between possibility and plausibility for entitlement to relief.” Id.

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(quoting Twombly, 550 U.S. at 557).

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In deciding a Rule 12(b)(6) motion, the court generally may not consider materials

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outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998);

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Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The court may, however, consider: (1)

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documents whose contents are alleged in or attached to the complaint and whose authenticity no

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party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question,

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and upon which the complaint necessarily relies, but which are not attached to the complaint, see

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Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials

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of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir.

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1994).
Finally, leave to amend must be granted “[u]nless it is absolutely clear that no

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amendment can cure the defects.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per

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curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc).

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III. DISCUSSION

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Prisoners have a First Amendment right to send and receive mail. See Witherow

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v. Paff, 52 F.3d 264, 265 (9th Cir. 1995) (per curiam). Prison officials may intercept and censor

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outgoing mail concerning escape plans, proposed criminal activity, or encoded messages.

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See Procunier v. Martinez, 416 U.S. 396, 413 (1974); see also Witherow, 52 F.3d at 266. Based

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on security concerns, officials may also prohibit correspondence between inmates. See Turner v.

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Safley, 482 U.S. 78, 93 (1987). Prison officials may not, however, review outgoing legal mail for

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legal sufficiency before sending them to the court. See Ex Parte Hull, 312 U.S. 546, 549 (1941).

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Incoming mail from the courts, as opposed to mail from the prisoner’s attorney, for example, is

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not considered “legal mail.” See Keenan v. Hall, 83 F.3d 1083, 1094 (9th Cir. 1996), amended

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by 135 F.3d 1318 (9th Cir. 1998).

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Specific restrictions on prisoner legal mail have been approved by the Supreme

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Court and Ninth Circuit. For example, prison officials may require that mail from attorneys be

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identified as such and open such mail in the presence of the prisoner for visual inspection. See

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Wolff v. McDonnell, 418 U.S. 539, 576-77 (1974); Sherman v. MacDougall, 656 F.2d 527, 528

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(9th Cir. 1981). Whether legal mail may be opened outside the inmate’s presence, however, is an

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open question in the Ninth Circuit. See Sherman, 656 F.2d at 528; cf. Mann v. Adams, 846 F.2d

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589, 590-91 (9th Cir. 1988) (per curiam) (concluding mail from public agencies, public officials,

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civil rights groups, and news media may be opened outside the prisoner’s presence in light of

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security concerns). At least three other circuits have concluded that legal mail may not be opened

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outside the inmate’s presence. See id. (citing Taylor v. Sterrett, 532 F.2d 462 (5th Cir. 1976),

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Back v. Illinois, 504 F.2d 1100 (7th Cir. 1974) (per curiam), and Smith v. Robbins, 452 F.2d 696

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(1st Cir. 1972)); see also Samonte v. Maglinti, 2007 WL 1963697 (D. Hawai’i July 3, 2007)

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(recognizing open question).
Defendant does not argue legal mail can be opened outside the inmate’s presence,

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and the court is persuaded by the authorities cited above that doing so gives rise to a cognizable

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First Amendment claim. See also Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1211 (9th Cir. 2017)

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(holding that inmates have a First Amendment rights to be present when legal mail is opened).

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Instead, defendant contends the mail at issue from the Community Legal Information Center

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(CLIC) is not “legal mail” because plaintiff does not allege CLIC was representing plaintiff as

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legal counsel and that the mail concerned contemplated or actual legal proceedings. Defendant’s

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argument is well-taken. See Keenan, 83 F.3d at 1094 (describing “legal mail” as mail from the

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prisoner’s attorney); see also Mann, 846 F.2d at 590-91 (concluding mail from civil rights groups

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may be opened outside the inmate’s presence). Indeed, a review of the first amended complaint

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reflects plaintiff has not described the mail from CLIC in any way and does not allege CLIC was

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acting as his legal counsel with respect to any contemplated or actual litigation. See Turner v.

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Williams, 2018 WL 1989512 *3 (C.D. Cal. 2018) (“Absent such allegations, the mail was not

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legal mail for First Amendment purposes.”).

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Because it is possible the defects in plaintiff’s first amended complaint can be

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cured by further amendment, the court should provide plaintiff an opportunity to file a second

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amended complaint.

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IV. CONCLUSION
Based on the foregoing, the undersigned recommends that defendant’s motion to

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dismiss (ECF Nos. 23 and 24) be granted and that plaintiff’s first amended complaint be

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dismissed with leave to amend.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

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after being served with these findings and recommendations, any party may file written objections

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with the court. Responses to objections shall be filed within 14 days after service of objections.

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Failure to file objections within the specified time may waive the right to appeal. See Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: June 18, 2019
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DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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