United States District Court, D. Arizona
A. Teilborg, Senior United States District Judge.
before this Court is the Report and Recommendation (R&R)
from the Magistrate Judge (Doc. 17) recommending screening
and service of the Second Amended Complaint (Doc. 15).
Plaintiff has objected to the R&R. (Doc. 18). The Court
will review the portions of the R&R to which there is an
objection de novo. See United States v. Reyna-Tapia,
328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
R&R recommends that this Court find that:
(1) Count 1 fails to adequately state a claim; (2) Count 2
adequately states claims against Defendants Penzone and
Spurgin of unreasonable searches under the Fourth Amendment,
denial of religious liberties under the First Amendment, and
RLUIPA violations, arising from the viewing of his strip
searches by female officers; and (3) Count 3 adequately
states claims of excessive force as to Defendants Collins,
Price, Lango, Dodd, Gardea and Fontaine, and on state law
defamation as to Defendants Gonzalez, Ngo, Collins, Bella,
Price, Payne, and Longa.
Accordingly, Count 1, and all other claims in Counts 2 and 3,
and Defendants Williams and Smith, should be dismissed
(Doc. 17 at 21-22).
Plaintiff objects to the recommended dismissal of Count 1,
arguing that mail he receives from the courts is legal mail
that cannot be opened outside his presence by jail staff.
Plaintiff largely premises this argument on his belief that
his juvenile records are sealed, and that jail staff would
not be aware of those records. (Doc. 18 at 1-4).
Court agrees with the R&R that based on the law of the
Ninth Circuit, and the law of this case, mail from courts is
not “legal mail” subject to the protection of
being opened in Plaintiff's presence. (Doc. 17 at 7-8).
Thus, this Court overrules this objection and the R&R
will be adopted as to Count 1.
involves Plaintiff's various claims regarding strip
searches to which he is subjected. The R&R recommends
that this Court find that he states a claim under: 1) the 4th
Amendment (Doc. 17 at 9-11); 2) the 1st Amendment (Doc. 17 at
12-13); and 3) RLUIPA (Doc. 17 at 13). The R&R further
recommends that this Court dismiss the due process claim, the
equal protection claim and Defendant Smith (all of which is
also found in Count 2).
objects and first argues that his claim is factually broader
than as summarized by the R&R. (Doc. 18 at 5). The
R&R defined the scope of the claims it recommended be
allowed to survive screening because those facts stated a
claim. Thus, to the extent Plaintiff is objecting
and asking that this Court expand the scope of the claims