Unpublished Disposition, 925 F.2d 1469 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 925 F.2d 1469 (9th Cir. 1989)

Alvin Howard CANELL, Plaintiff-Appellant,v.OREGON STATE PENITENTIARY, Defendant-Appellee.

No. 90-35592.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 6, 1991.* Decided Feb. 8, 1991.

Before WALLACE, Chief Judge, and O'SCANNLAIN and LEAVY, Circuit Judges.


MEMORANDUM** 

Alvin Howard Canell filed the instant civil rights action against the Oregon State Penitentiary and a prison mail room guard, alleging the defendants violated his rights by opening legal mail addressed to Canell outside his presence. The district court, in a well reasoned opinion, entered summary judgment in favor of the defendants, and Canell appealed. We affirm.

As a general proposition, inmate legal mail may be opened and inspected by prison officials only in the presence of the addressee, but prison officials can require that such mail be labelled as "legal mail" in order to receive this special handling. See Wolff v. McDonnell, 418 U.S. 539, 575-77 (1974); Royse v. Superior Court of Washington, 779 F.2d 573, 574-75 (9th Cir. 1986). See also 28 C.F.R. Sec. 540.19 (federal prison regulation requiring that incoming legal mail be clearly marked as such in order to receive "special mail" handling); Or.Admin.R. Sec. 291-131-011(5) (Oregon administrative regulation concerning same). Of the five pieces of legal mail Canell claims were improperly opened, only one was opened in violation of this rule, viz., the letter of March 29, 1989, from a Portland attorney contained in an envelope that was marked "Legal Mail."

Notwithstanding Canell's vigorous assertions to the contrary, it is clear from the pleadings and affidavits that the act complained of, including the prison mail room's failure to stamp "Unread Legal Mail [-] Processing Error" on the outside of the March 29, 1989, letter subsequent to its opening, amounts to nothing more than inadvertence on the part of the prison mail room staff. The inadvertent opening of an inmate's legal mail, while not to be condoned, constitutes mere negligence and does not rise to the level of a constitutional rights violation cognizable under 42 U.S.C. § 1983. Stevenson v. Koskey, 877 F.2d 1435, 1441 (9th Cir. 1989) (citing Daniels v. Williams, 474 U.S. 327, 332 (1986)).

Accordingly, the decision of the district court is AFFIRMED.

 *

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

 **

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