Unpublished Disposition, 865 F.2d 264 (9th Cir. 1988)

MEMORANDUM^* 

Brazil McGee, a California Correctional Training Facility inmate when he initiated his complaint, appeals the district court's order dismissing his 42 U.S.C. § 1983 action alleging violation of his first and fourteenth amendment rights by prison officials who opened his legal correspondence outside of his presence. McGee argues that the prison officials engaged in a willful and deliberate campaign to harass him and to deprive him of his constitutional rights.

McGee contends that there were fourteen incidents of letter-opening; the district court found that only four openings had occurred. This finding must be upheld unless we conclude it was clearly erroneous. Nothing in the record supports a definite and firm conviction that the district court erred in this finding of fact.

To support a section 1983 action a plaintiff must "prove a violation of [an] underlying constitutional right...." Daniels v. Williams, 474 U.S. 327, 330 (1986) (citations omitted). McGee alleges that the opening of his mail violated his first and fourteenth amendment rights. Because the district court properly concluded that four incidents of negligently opened mail do not rise to the level of a constitutional claim, the court correctly dismissed McGee's section 1983 claim.

Despite McGee's vigorous assertion that the mailroom officers engaged in a willful campaign to violate his rights, his claims amount essentially to allegations of negligence on the part of the prison staff. McGee has not demonstrated that the four occasions on which his mail was opened constituted anything other than mistake. The district court found that the openings amounted to nothing more than a few isolated incidents of negligence.

As the Supreme Court and our circuit have recently held, negligence will not support a section 1983 claim. In Daniels v. Williams, the Supreme Court held that mere lack of due care by a state official does not constitute a deprivation of due process under the fourteenth amendment. Daniels v. Williams, 474 U.S. 327, 330-32 (1986). Our circuit applied Daniels to hold that allegedly negligent administration of a state statute does not amount to a constitutional claim cognizable under section 1983. "If a government official causes injury to life, liberty or property through his merely negligent conduct, 'no procedure for compensation is constitutionally required.' " Blaylock v. Schwinden, No. 87-3952, slip op. at 10886 (Sept. 7, 1988) (quoting Daniels, 474 U.S. at 333) (emphasis in Daniels) . Under these holdings, McGee clearly does not have a valid claim under the fourteenth amendment.

The Supreme Court has held that correspondents with prisoners have some first amendment protections against censorship by prison officials, see Procunier v. Martinez, 416 U.S. 396 (1974); however, the Court has also stated that "freedom from censorship is not equivalent to freedom from inspection or perusal." Wolff v. McDonnell, 418 U.S. 539, 576 (1974). In Wolff, the Court held that a system which provided for the opening and inspection of an inmate's legal mail in the inmate's presence was more than constitutionally adequate. Wolff, 418 U.S. at 577.

Given the limited protection afforded to a prisoner's legal mail and the fact that McGee's legal mail was opened only four times over a two-year period, with each occasion acknowledged as a mistake by the prison officials, the district court's dismissal of McGee's first amendment claim is fully justified. The incidents about which McGee complains simply do not cross the threshold of redressable constitutional error.

The district court declined to exercise jurisdiction over McGee's state claims. Pendent jurisdiction is a doctrine of discretion. United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966). In our circuit, "it is our practice to dismiss state law claims once the federal claims have been resolved." Danner v. Himmelfarb, No. 87-1621, slip op. at 12116 (Sept. 28, 1988). The dismissal of the state claims was not an abuse of discretion.

The district court order is AFFIRMED.