Unpublished Disposition, 878 F.2d 1438 (9th Cir. 1989)
Annotate this CaseDarryl Wesley FUNDERBURK, Plaintiff-Appellant,v.James ROWLAND, Director of the Department of Corrections;E.R. Myers, Superintendent of Soledad Prison;James Marsh, Appeal Coordinator ofSoledad Prison, Defendant-Appellee
No. 88-15157.
United States Court of Appeals, Ninth Circuit.
Submitted* June 29, 1989.Decided July 3, 1989.
Before WALLACE, POOLE and CYNTHIA HOLCOMB HALL, Circuit Judges.
MEMORANDUM**
Appellant appeals from the district court's dismissal of his complaint seeking relief under 42 U.S.C. § 1983. We have jurisdiction, 28 U.S.C. § 1291, and we affirm.
We review de novo the district court's ruling that the appellant failed to state a claim pursuant to Fed. R. Civ. P. 12(b) (6).1 Fort Vancouver Plywood Co. v. United States, 747 F.2d 547, 552 (9th Cir. 1984). A Sec. 1983 claim must state that appellant was deprived of liberty under color of law and in violation of a constitutional right, although a pro se claim must be liberally construed. Bretz v. Kelman, 773 F.2d 1026, 1030 (9th Cir. 1985) (en banc).
Appellant cannot state a constitutional violation because the prison administration has the power to regulate his first amendment rights, and federal courts are reluctant to intervene.2 Turner v. Safely, 482 U.S. 78, 85 (1987). "When a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is 'reasonably related' to legitimate penological interests." Id. at 91. Since, under these circumstances, a complete prohibition of a prisoner's first amendment rights involving inmate-to-inmate correspondence is constitutionally valid, see Turner at 91, then the mere restriction of appellant's correspondence rights must also be upheld.3
The appellant also asserts that he is being denied access to the courts by his inability to prepare his case with the "co-counsel" assistance of an inmate at another prison. An actual denial of a prisoner's access to the courts would be sufficient for a Sec. 1983 claim. Storseth v. Spellman, 654 F.2d 1349, 1352 (9th Cir. 1981).4 However, denial of inmate assistance from a particular prisoner at another institution does not prohibit the prisoner's access to the courts when the state has provided other adequate means of court access, such as a law library or inmate assistance within the prison. Id. at 1354. Indeed, the numerous appeals and actions the appellant has filed, both in federal and state court, illustrate that the undelivered letter has not interfered with his ability to gain access the courts, prosecute his claims, or prepare the necessary legal documents. See Royse v. Superior Court of Washington, 779 F.2d 573, 575 (9th Cir. 1986); Tanner v. Kerner, 385 F.2d 415, 416 (9th Cir. 1967).
AFFIRMED.
The panel finds this case appropriate for submission without oral argument pursuant to Ninth Circuit Rule 34-4 and Fed.R.App.R. 34(a)
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3
The district court also dismissed the complaint for lack of standing. Construing appellant's claims liberally, Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986), we conclude that he sufficiently pleaded "injury in fact" (nondeliverance of the letter impeded his access to the courts) and "causality" (the defendants impeded the deliverance, which could be redressed judicially), Id. at 877
The district court properly suggests that if appellant has a state court order permitting the deliverance of the letter which is not being enforced, he should seek relief in the state courts through contempt proceedings or other state remedies
Appellant's argument that the prison rule is "overly broad" is untenable under the "reasonably related" standard of Turner, 482 U.S. at 83
Storseth employing the standard of Procunier v. Martinez, 416 U.S. 396 (1974), found that inmate-to-inmate correspondence could not be completely prohibited. This standard has been overruled by Turner, 482 U.S. at 83. However, the additional holding of Storseth, upon which we rely, is still valid law
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