Bretches

dissenting:

The majority’s conclusion that the decision to bar Bretches’ book was intermingled with an improper determination that the content was objectionable is not warranted. Permission was denied for Bretches to engage in the business of publishing and his book was banned for reasons that are content neutral under applicable pi'ecedents. The attachments to plaintiffs complaint considered along with the allegations in the body of the complaint provide facts that are sufficient to conclusively determine that defendants’ challenged actions were content neutral. Accordingly, I respectfully dissent.

Plaintiffs book, entitled Dog OWar, is about attack-dog breeding, a dog mauling death and the criminal prosecution of two persons charged as responsible. Bretches, who participated in the breeding of attack dogs, was not charged in the dog mauling prosecution, but wrote critically about the proceedings and some members of the community.

This suit against the former and the current warden of Pelican Bay State Prison (“PBSP”), where plaintiff is incarcerated, names both defendants in their individual and official capacities. In addition to seeking damages from Kirkland and Ho-rel,…

MEMORANDUM **

Dale Bretches appeals from the district court’s dismissal of his 42 U.S.C. § 1983 *677 suit alleging that prison officials violated his rights under the First Amendment to the United States Constitution. We review de novo a district court’s dismissal of a complaint under 28 U.S.C. § 1915A for failure to state a claim upon which relief can be granted, Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir.2007), and we affirm in part, reverse in part, vacate in part, and remand.

Bretches first argues that book publishing does not constitute a business activity under Cal.Code. Regs. tit. 15, § 3024. That argument fails under the plain language of the regulation. The contract between Bretches and iUniverse provides for royalty payments to be made to Bretches should anyone order his book. Royalty payments qualify as a “revenue generating or profit making activity” under § 3024.

Bretches also contends that the district court erred when it concluded that he failed to state a claim that prison officials violated his First Amendment right to free speech when they applied § 3024 to forbid him from publishing his book. We analyze Bretches’s claim under the standard set forth in…