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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

HAROLD ROBERTSON,

Plaintiff, No. CIV S-04-1587 DFL GGH P

vs.

T. GUZMAN, et al., ORDER

Defendants.

 /

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to

42 U.S.C. § 1983. This action is proceeding on the amended complaint filed September 10,

2004. Named as defendants are T. Guzman and T. Carey. The amended complaint includes a

claim challenging plaintiff’s exposure to second-hand smoke. In the opposition to the pending

motion to dismiss, plaintiff voluntarily dismisses this claim.

The amended complaint includes two additional claims: 1) for indigent inmates,

California State Prison-Solano (CSP-Solano) will only pay for legal mail addressed to the courts

and the California State Board of Control; 2) only mail to and from the courts and the California

State Board of Control is processed as confidential mail; consequently, all other legal mail is

processed with the general mail, causing delays in its delivery and subjecting it to inspection by

prison officials. As relief, plaintiff seeks injunctive relief only.

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2

Pending before the court is defendants’ February 8, 2005, motion to dismiss for

failure to exhaust administrative remedies and for failure to state a claim pursuant to Fed. R. Civ.

P. 12(b) and 12(b)(6). The motion only addresses plaintiff’s claim challenging the indigent

inmate postage policy. 

Whether plaintiff has exhausted administrative remedies presents a thorny issue. 

Prison officials dismissed a group appeal filed by plaintiff and other inmates challenging the atissue policies as duplicative of an appeal filed by inmate Antolin Andrews. Because prison

officials treated the group appeal as duplicative of the individual appeal plaintiff may have

exhausted his administrative remedies. 

Plaintiff pursued another group appeal challenging the at-issue policies to the

Director’s Level. Defendants argue that this appeal was exhausted after plaintiff filed this action. 

McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002)(appeals must be exhausted prior to filing of

action). Plaintiff argues that because prison officials did not respond to his appeals within the

time limits, he was not required to wait until the grievance procedure was completed before filing

this action. See Underwood v. Wilson, 151 F.3d 292 (5th Cir. 1998); see also Foulk v. Charrier,

262 F.3d 687 (8th Cir. 2001)(remedies were not “available” to a prisoner when the warden did not

respond to the inmate’s grievance during the time period required by regulations). 

Because the court has determined that plaintiff’s claim challenging the indigent

inmate postage policy fails to state a claim, the court need not consider the issue of

administrative exhaustion at this time. For the reasons discussed below, plaintiff’s claim

challenging the indigent inmate postage policy is dismissed with leave to amend. 28 U.S.C. §

1915(e)(2)(court may dismiss action at any time if it determines the complaint fails to state a

claim on which relief may be granted). Accordingly, defendants’ motion to dismiss is vacated.

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3

In order to state a claim for denial of the right to access the courts, the prisoner

must allege an actual injury. Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174 (1996). For the

following reasons, the court finds that plaintiff has failed to demonstrate an actual injury with

respect to his claim challenging the indigent inmate postage policy.

Plaintiff alleges that he filed a habeas corpus petition in the United States District

Court for the Central District of California. This action was stayed so that plaintiff could exhaust

additional claims. Plaintiff alleges that state rules required him to serve his state petition on the

District Attorney. He alleges that he was unable to serve the District Attorney because of the atissue policy. The Superior Court returned his petition because it was not properly served. 

Petitioner then sent re-served his petition on the Superior Court with a proof of service stating

that he had served the District Attorney.

When proceeding with his habeas actions in the California Court of Appeal and

California Supreme Court, plaintiff was required to serve his pleadings on the Attorney General’s

Office. Because of the at-issue policy, he was unable to do so. 

Although plaintiff claims that he was unable to serve the District Attorney and the

Attorney General with his habeas petitions, as required by state law, he does not allege that any

action was dismissed as a result of his failure to comply with the service rules. Accordingly, the

court finds that these claims do not demonstrate actual injury. If plaintiff files an amended

complaint, he must demonstrate an actual and not just potential injury. 

Plaintiff also claims that defendant Guzman changed the policy regarding the

processing of legal mail so that legal mail other than that to and from from courts or the Board of

Control is processed with the general mail. As a result, it took plaintiff thirty days to receive

mail from the Attorney General’s office. In addition, the legal mail processed as general mail

was opened in violation of plaintiff’s constitutional rights. 

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4

Plaintiff’s claim that defendant Guzman held his mail from the Attorney

General’s Office for thirty days implicates plaintiff’s right to access the courts. Because plaintiff

does not allege any actual injury as a result of this incident, this claim is dismissed. 

Plaintiff also alleges that on May 20, 2004, defendant Guzman opened mail from

plaintiff addressed to the District Court in violation of his constitutional rights. This claim states

a colorable claim for relief. 

Plaintiff also claims that defendant Guzman improperly held his mail addressed to

the District Court for over one month. Plaintiff claims that his mail addressed to the court

contained objections to the magistrate judge’s order staying his case until the Supreme Court

decided Pliler v. Ford. Additional information is needed in order to determine whether these

allegations state a claim for violation of the right to access the courts. If the action was filed in

this court, the second amended complaint should state the case number. If the action was not

filed in this court, plaintiff must inform the court whether his action was stayed and if it has been

reopened. 

Plaintiff also alleges that he has been attempting to send a claim to the Public

Utilities Commission to protest MCI’s action to cut of his telephonic access to his family. 

Plaintiff alleges that defendant Guzman failed to mail that document to the Public Utilities

Administrative Law Judge. Plaintiff also alleges that the Prison Law Office posted a notice

seeking information from inmates about their experiences with the Dental Site. Plaintiff alleges

that defendant Guzman refused to send his letter addressed to the Prison Law Office in response

to this notice.

The right of access to the courts does not “guarantee inmates the wherewithal to

transform themselves into litigating engines capable of filing everything from shareholder

derivative actions to slip-and-fall claims. The tools it requires to be provided are those that the

inmates need to attack their sentences, directly or collaterally, and in order to challenge the

conditions of their confinement.” Lewis, 518 U.S. at 355, 116 S.Ct. at 2182. A complaint to the

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Public Utilities Commission does not invoke plaintiff’s right to access the courts. Plaintiff’s

letter to the Prison Law Office in response to a solicitation for information regarding dental care

also does not invoke this right. Accordingly, these claims are dismissed. 

Plaintiff also argues that the postage policy violates his right to Equal Protection

because inmates at other prisons are not subject to the same restrictions. Defendants have moved

to dismiss this claim. Plaintiff’s Equal Protection claim is essentially a restatement of his claim

alleging violation of his right to access the courts. Where a claim can be analyzed under “an

explicit textual source of rights in the Constitution, a court may not also assess the claim under

another, “more generalized,” source. Graham v. Connor, 490 U.S. 386, 394-95, 109 S.Ct. 1865

(1989)(analyzing claim under Fourth Amendment but not under substantive due process); see

also Hufford v. McEnaney, 249 F.3d 1142, 1151 (9th Cir. 2001)(analyzing claim under First

Amendment but not under substantive due process); Armendariz v. Penman, 75 F.3d 1311, 1319

(9th Cir. 1996)(analyzing claim under Fourth and Fifth Amendments but not under substantive

due process). Because plaintiff’s right to access the courts provides the explicit source of

constitutional protection, plaintiff’s Equal Protection claim is dismissed. If plaintiff files an

amended complaint, he should not include an Equal Protection claim

Defendants’ motion does not address plaintiff’s claims that his legal mail other

than that to and from the courts and Board of Control is no longer processed confidentially. 

Plaintiff alleges that prison officials now open and inspect this legal mail. If plaintiff does not

file an amended complaint, defendants shall file a response to this claim. See O’Keefe v. Van

Boening, 82 F.3d 322 (9th Cir. 1996).

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff’s request to voluntarily dismiss his claim challenging defendant

Carey’s failure to help inmates who wish to stop smoking is granted;

2. Defendants’ motion to dismiss filed February 8, 2005, is vacated;

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3. Plaintiff’s claims challenging the indigent inmate postage policy and the delay

in the processing of his legal mail are dismissed; plaintiff is granted thirty days to file a second

amended complaint; if plaintiff does not file a second amended complaint, defendants shall file a

response to plaintiff’s claims regarding the inspection of his incoming and outgoing legal mail

and his claim that defendant Guzman opened his mail addressed to the court.

DATED: 4/22/05

/s/ Gregory G. Hollows

 

GREGORY G. HOLLOWS

UNITED STATES MAGISTRATE JUDGE

ggh:kj

rob1587.m

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