Outley v. Penzone

          ORDER

          James A. Teilborg, Senior United States District Judge.

         Pending 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).

         I. Recommendation

         The 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 without prejudice.

(Doc. 17 at 21-22).

         II. Objections

         A. Count 1

          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).

         This 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.

         B. Count 2

         Count 2 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^[1] (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).

         Plaintiff 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.^[2] Thus, to the extent Plaintiff is objecting and asking that this Court expand the scope of the claims ...