Opinion
No. C 03-0543 MMC (PR), (Docket No. 15)
December 3, 2003
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
Plaintiff, currently incarcerated at Pelican Bay State Prison ("PBSP"), filed this pro se civil rights complaint pursuant to 42 U.S.C. § 1983. After a review of the complaint, the Court dismissed one of petitioner's claims, but found cognizable his other claim that defendant Correctional Officer R. Kun ("Kun") interfered with his mail. The Court ordered the complaint served on Kun and directed Kun to file a dispositive motion or indicate that this case could not resolved by such a motion. Kun has filed a motion, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the claims against him for failure to state a cognizable claim for relief. Plaintiff has not filed an opposition, and his time for doing so has expired.
DISCUSSION
A. Standard of Review
Rule 12(b)(6) provides for the dismissal of a claim "if as a matter of law it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Neitzke v. Williams, 490 U.S. 319, 327 (1989). In considering a motion to dismiss, the Court must construe the complaint in the light most favorable to the plaintiff and accept all factual allegations as true. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). When a plaintiff attaches exhibits to the complaint, those exhibits may be considered in determining whether dismissal is proper, without converting the motion to one for summary judgment. See Fed.R.Civ.P. 10(c); Park School ov Business v. Sumington, 51 F.3d 1480, 1484 (9th Cir. 1995).
B. Legal Claims
Plaintiff claims that Kun violated his constitutional right to send and receive mail. According to the prison disciplinary report attached to the complaint, Kun forwarded plaintiff's outgoing mail to a prison supervisor because plaintiff had placed correspondence from other inmates into his "indigent" envelopes. (Compl. Exhs. 1, 1(G).) Plaintiff was disciplined for this conduct because prison rules prohibited inmates from allowing other inmates to use their indigent envelopes. Id.
To state a cognizable claim under § 1983, plaintiff must allege conduct by Kun that deprived him of a constitutional right. 42 U.S.C. § 1983; Leer v. Murphy, 844 F.2d 628, 632 (9th Cir. 1988). Prisoners enjoy a First Amendment right to send and receive mail.See Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995) (citingThornburgh v. Abbott, 490 U.S. 401, 407 (1989)). The alleged conduct by Kun did not prevent plaintiff from sending mail. Plaintiff simply complains that, upon discovering plaintiff's infraction, Kun forwarded the mail to a supervisor and did not return it to plaintiff. There is no First Amendment right to the return of confiscated letters, only to send mail. Plaintiff does not allege that it was Kun who decided the mail ultimately would not be sent. Rather, according to the complaint, the prison disciplinary committee, after finding plaintiff guilty of violating prison rules, decided to destroy "the contraband." (Compl. Exhs. 1, 1(J).) As a result, the failure to mail plaintiff's correspondence was not caused by the alleged conduct of Kun, but rather by that of the prison disciplinary committee, which decided that the "contraband" would be destroyed. To state a cognizable claim under § 1983, plaintiff must allege that Kun was the individual whose conduct proximately caused the violation of plaintiff's constitutional rights. See Leer, 844 F.2d at 634. It is apparent from plaintiff's allegations that Kun's conduct was not the proximate cause of any violation of plaintiff s constitutional rights in connection with plaintiff's outgoing mail.
It is not clear whether "the contraband" included both the misused envelopes and the correspondence contained therein. Copies of the correspondence, however, are attached to the complaint. (Compl. Exh. 1(G).)
Plaintiff's allegations regarding his incoming mail also fail to state a cognizable claim under § 1983. According to plaintiff, he did not receive certain items of incoming mail between January and March 2001. (Compl. at 3.) Plaintiff alleges that he did not receive this mail because the prison would not allow plaintiff to use a name different than "Timmy Ray Tyson." (Compl. Exh. 1.) The only alleged connection between Kun and plaintiff's incoming mail is a note directed to Kun from a mail room staff person, advising that plaintiff would not be allowed to use any name other than "Tyson." (Compl. Exh. "1".) The note does not reflect any conduct by Kun that caused the mail room to adopt the subject policy. At most, it establishes that Kun was aware that the mail room was exclusively using "Tyson" for plaintiff. There is no allegation that Kun was aware that the policy would or did affect plaintiff's ability to receive mail, much less any allegation that Kun could have done anything to change the mail room's practice with respect to plaintiff's name. In short, the allegations in the complaint do not allege conduct by Kun that proximately caused the deprivation of plaintiff's constitutional right to receive incoming mail.
CONCLUSION
For the foregoing reasons, defendant's motion to dismiss the complaint for failure to state a cognizable claim for relief is GRANTED.
This order terminates Docket No. 15 and any other pending motions.
The clerk shall close the file.
IT IS SO ORDERED.