Scott Herd v. James Hartley

MEMORANDUM

Scott Herd, a California state prisoner, appeals pro se from the district court’s judgment dismissing his ' 42 U.S.C. § 1983 action alleging constitutional and state law claims arising from defendants’ interference with his outgoing mail. We have jurisdiction under 28 U.S.C. § 1291 . We review de novo. Hamilton v. Brown, 630 F.3d 889, 892 (9th Cir.2011) (dismissal under 28 U.S.C. § 1915A); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.1998) (order) (dismissal under 28 U.S.C. § 1915 (e)(2)(B)(ii)). We reverse and remand.

Dismissal of Herd’s First Amendment claim for interference with his outgoing mail was premature because Herd’s allegations regarding defendants’ failure to send a confidential mail package, liberally construed, were “sufficient to warrant ordering [defendants] to file an answer.” Wilhelm v. Rotman, 680 F.3d 1113, 1116 (9th Cir.2012); see also Witherow v. Paff, 52 F.3d 264, 265 (9th Cir.1995) (per curiam) (prisoners have “a First Amendment right to send and receive mail”). Accordingly, we reverse and remand for further proceedings on Herd’s First Amendment claim for interference with his outgoing mail. Moreover, because the district court declined…