(PC) Melger v. United States Department of the Treasury

Opinion

THOMAS JOSEPH MELGER, ) Case No.: 1:21-cv-01183 JLT SAB (PC) ) Plaintiff, ) ORDER ADOPTING THE FINDINGS AND ) RECOMMENDATIONS AND DISMISSING v. ) ACTION WITHOUT PREJUDICE ) UNITED STATES DEPARTMENT OF ) (Doc. 19) TREASURY, et al., ) ) ) Defendants. ) )

The Court dismissed Plaintiff’s First Amended Complaint and granted him thirty days to file a second amended complaint. (Doc. 15.) Plaintiff failed to file a second amended complaint or otherwise respond to the Court’s order. Therefore, the Court ordered Plaintiff to show cause why the action should not be dismissed. (Doc. 18.) After Plaintiff failed to respond to the order to show cause, the magistrate judge found Plaintiff failed to prosecute the action and recommended dismissal on March 23, 2022. (Doc. 19.) The Court served the findings and recommendations, which contained notice that objections were due within fourteen days. (Doc. 19 at 8.) In addition, the Court advised Plaintiff that the “failure to file objections within the specified time may result in the waiver of rights on appeal.” (Id., citing Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014); Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991).) Even still, Plaintiff did not file objections, and the deadline to do so has passed. According to of 28 U.S.C. 8 636 (b)(1)(C), this Court conducted a de novo review of the case. Having carefully reviewed the entire matter, the Court concludes that the magistrate judge’s Findings and Recommendations are supported by the record and by proper analysis. Thus, the Court ORDERS 1. The Findings and Recommendations issued on March 23, 2022 (Doc. 19), are ADOPTED in full. 2. This action is DISMISSED without prejudice. 3 The Clerk of Court is directed to close this action. IT IS SO ORDERED. Dated: _ April 19, 2022 TED STATES DISTRICT JUDGE Plaintiff alleges that his incoming mail from federal and state agencies is opened and sent || through non-privileged mail by defendants. (Doc. 1, p. 20, | 61.) Plaintiff also alleges that a pictur 50 frame and picture sent by a friend were improperly rejected by defendant Schreiber. (/d., p. 23, 4 73.) Prisoners have “a First Amendment right to send and receive mail.” Witherow v. Paff, 52 F.3d 264, 265 (9th Cir.1995). Prison regulations relating to the regulation of incoming mail are analyzed under the Turner reasonableness standard set forth in Turner v. Safley, 482 U.S. 78, 89- 91,107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). = Thornburgh v. Abbott, 490 U.S. 401, 413-14, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989). The regulation is valid if it is reasonably related to legitimate penological interests. Turner, 482 U.S. at 89. In determining the reasonableness of the regulation, the court must consider the following factors: (1) whether there is a “valid, rational } connection between the regulation and the legitimate government interest put forward to justify it,” (2) “whether there are alternative means of exercising the right,” (3) the impact that the

“accommodation of the asserted constitutional right will have on guards and other inmates,” and (4) “the absence of ready alternatives.” Turner, 482 U.S. at 89-90. Plaintiff has not sufficiently alleged that defendants violated Turner with regards to Plaintiff's incoming mail from the state and federal agencies. Plaintiff alleges in his complaint that the mail opened and sent through as non-privileged mail. (Doc. 1, p. 20, 4 61.) However, mail from public officials or agencies does not necessarily have to be treated as legal mail. See *" Mann v. Adams, 846 F.2d 589, 590-91 (9th Cir.1988) (per curiam) (finding that mail from public agencies, public officials, civil rights groups, and news media may be opened outside the prisoner's presence in light of security concerns). Plaintiff thus fails to state a cognizable First Amendment claim regarding his incoming mail.