Apolinar Navarette, Jr., AKA Paul Medel Navarette v. Jiro J. Enomoto

536 F.2d 277 Apolinar NAVARETTE, Jr., aka Paul Medel Navarette, Plaintiff-Appellant, v. Jiro J. ENOMOTO, * et al., Defendants-Appellees. No. 74-2212. United States Court of Appeals, Ninth Circuit. Feb. 9, 1976. Rehearing and Rehearing En Banc Denied July 29, 1976. Michael E. Adams, of La Casa Legal De San Jose Project, San Jose, Cal., for plaintiff-appellant. Evelle J. Younger, Atty. Gen., San Francisco, Cal., for defendants-appellees.OPINION Before KOELSCH and HUFSTEDLER, Circuit Judges, and HILL, ** District Judge. KOELSCH, Circuit Judge: 1 Appellant Navarette, a California state prisoner, brought this civil rights action against state prison officials under 42 U.S.C. §§ 1983 , 1985 and 28 U.S.C. §§ 1341 , 1343; his complaint set out nine purported claims. The district court granted summary judgment for appellees as to the first, second, and third and dismissed the fourth through ninth for failure to state a federal claim. We affirm in part and reverse in part. 2 The district court erred in its grant of summary judgment. As to claims one and two, Navarette's allegations in substance were that appellees deliberately refused to mail certain of his letters and…

*279 OPINION

Appellant Navarette, a California state prisoner, brought this civil rights action against state prison officials under 42 U.S.C. §§ 1983 ,1985 and 28 U.S.C. §§ 1341 , 1343; his complaint set out nine purported claims. The district court granted summary judgment for appellees as to the first, second, and third and dismissed the fourth through ninth for failure to state a federal claim. We affirm in part and reverse in part.

The district court erred in its grant of summary judgment. As to claims one and two, Navarette’s allegations in substance were that appellees deliberately refused to mail certain of his letters and to send certain others by registered mail in violation of the federal constitution and the mail regulations then in effect.

The controlling standard, first enunciated by the Supreme Court in Conley v. Gibson, 355 U.S. 41, 45-46 , 78 S.Ct. 99, 102 , 2 L.Ed.2d 80 (1957), is that an action may be dismissed for failure to state a claim only if “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Although the amended complaint drafted by Navarette’s attorney is badly worded and is…

(concurring in part and dissenting in part).

I concur in the majority opinion except as it relates to the Fourth and Fifth Claims. I would affirm the trial court’s dismissal of those causes of action for failure to state a federal claim. I cannot agree either with the characterization of those claims as contained in the majority opinion or with the statements of law made by the majority concerning them. Since the two causes of action allege the same acts in identical language, both will be hereinafter referred to as “the claim.”

The majority opinion asserts that the substance of the claim is that Navarette was removed as prison librarian, and that the Stanford law student visitation program in which he participated was terminated, “solely to punish or hamper his legal activities.” I submit that this is not a correct statement of the substance of the claim. I quote in full the operative paragraphs of the complaint in the footnote.

*283 The claim begins by alleging that plaintiff held the position of prison law librarian for three months during the fall of 1971. It says that the position was advantageous to him because the increased access to library facilities enabled him to…