Unpublished Disposition, 845 F.2d 1029 (9th Cir. 1987)

MEMORANDUM^** 

Lacey Sivak ("Sivak") appeals pro se the district court's: 1) dismissal of his 42 U.S.C. § 1983 action against correctional officer Kevin Castiglione ("Castiglione"), and 2) denial of his motion for reconsideration. On May 12, 1987, we remanded for a factual determination of when Sivak filed his notice of appeal. Having determined that fact, we now affirm.

FACTS

Sivak filed this 42 U.S.C. § 1983 complaint pro se and in forma pauperis alleging unlawful interference with his mail and deprivation of property without due process. He seeks to have his mail returned and to have Castiglione punished and reassigned to a position where he would not come into contact with Sivak.

On September 4, 1985, the district court dismissed the complaint as frivolous.¹  Sivak filed a "Request to Ask the Court to Reconsider Decision." The district court denied that request on October 15, 1985. On November 12, Sivak filed a notice of appeal from the orders of September 4 and October 15.

ANALYSIS

Sivak does not specifically articulate the rule under which he filed his "Request to Ask the Court to Reconsider Decision." This appeal is timely only if we construe his motion as one to alter or amend judgment under Fed. R. Civ. P. 59(e).²  See Fed. R. App. P. 4(a) (4); Beaudry Motor Co. v. Abko Properties, Inc., 780 F.2d 751, 753 (9th Cir.) (running of time to file appeal is tolled by timely filed Rule 59(e) motion), cert. denied, 107 S. Ct. 100 (1986). Recognizing the leeway granted pro se litigants, we will interpret the motion as one under Rule 59(e) and reach the merits of the claim.

The district court may dismiss complaints filed in forma pauperis if "satisfied that the action is frivolous or malicious." 28 U.S.C. § 1915(d); Franklin v. Murphy, 745 F.2d 1221, 1225 n. 2 (9th Cir. 1984). An action is frivolous if it has no "arguable substance in law and fact." Franklin, 745 F.2d at 1227. The court may deny a pro se plaintiff leave to amend if it is "clear that the deficiencies of the complaint could not be cured by amendment." Id. at 1228 n. 9 (quoting Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (per curiam).

Sivak contends that prison officials violated his civil rights by not delivering a package and disciplining him for attempting to use an incorrect postal rate. However, a prison memorandum indicates that prison officials confiscated the package because it contained contraband, and that Sivak was disciplined for attempting to mail the package.

An inmates first amendment right of access to the mail is qualified by the circumstance of imprisonment. See Procunier v. Martinez, 416 U.S. 396, 418 (1974). Courts analyze restrictions in terms of the legitimate policies and goals of the correctional facility in the preservation of internal order and discipline, maintenance of institutional security, and rehabilitation of inmates. Id. at 412. The limitation must be tailored to the particular institutional interest implicated. Id. at 413.

The interference with Sivak's mail was clearly justified. Prison officials have a legitimate interest in detaining, inspecting, and censoring mail in order to uncover contraband. See Martinez, 416 U.S. at 414 & n. 14; cf. Bell v. Wolfish, 441 U.S. 520, 550-51 (1979) (prison regulation barring receipt of hardcover books except from publishers upheld because of legitimate concern in stemming the flow of contraband). Sivak's conclusory and essentially unsupported contention that Castiglione refused to mail the package because Sivak previously filed writs against prison officials does not rebut the prison administration's stated justification. See Keniston v. Roberts, 717 F.2d 1295, 1300 (9th Cir. 1983) (conclusory allegations do not support the prima facie elements of a section 1983 claim).

The prison's right to prevent the mailing of contraband renders any attempt to amend the complaint futile. The district court properly dismissed the complaint. See Franklin, 745 F.2d at 1228 n. 9.

AFFIRMED.