846 F.2d 589 (9th Cir. 1988), 87-1925, Mann v. Adams

Docket Nº:87-1925.
Citation:846 F.2d 589
Party Name:David Allen MANN, Plaintiff-Appellant, v. James ADAMS, et al., Defendants-Appellees, and Bruce Babbitt, Governor of Arizona, Defendant.
Case Date:May 18, 1988
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 589

846 F.2d 589 (9th Cir. 1988)

David Allen MANN, Plaintiff-Appellant,


James ADAMS, et al., Defendants-Appellees,


Bruce Babbitt, Governor of Arizona, Defendant.

No. 87-1925.

United States Court of Appeals, Ninth Circuit

May 18, 1988

Submitted April 11, 1988 *

Page 590

David Allen Mann, in pro. per.

Evelyn R. Epstein, Asst. Atty. Gen., Phoenix, Ariz., for defendants-appellees.

Michael R. Arkfeld, Asst. U.S. Atty., Phoenix, Ariz., for defendants-appellees Thomas Lemme and John Scott.

Appeal from the United States District Court for the District of Arizona.

Before GOODWIN, SCHROEDER and POOLE, Circuit Judges.


Mann, an inmate at Arizona State Prison, appeals pro se the district court's grant of summary judgment to the state officers in this 42 U.S.C. Sec. 1983 action. We affirm.

Mann's claims are based upon allegations that grievances at Arizona State Prison are generally handled in an untimely and inefficient manner without a procedure certified pursuant to 42 U.S.C. Sec. 1997e; that letters to him from various public officials, the American Civil Liberties Union, and the news media were opened outside his presence; that the prison has no procedure for providing receipts for certified mail; and that Governor Babbitt endorsed the grievance procedure policy and provided insufficient funding for prison operations.

Although 42 U.S.C. Sec. 1997e provides that states may voluntarily submit grievance procedures for certification, a state's failure to do so does not give the prisoner a cause of action. See 42 U.S.C. Sec. 1997e(d) ("[t]he failure of a State to adopt or adhere to an administrative grievance procedure consistent with this section shall not constitute the basis for an action under section 1997a or 1997c of this title").

Mann next argues that mail sent to inmates from public agencies, public officials, recognized civil rights groups, and news media must be opened only in the inmate's presence. In Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the Supreme Court addressed whether prison officials could open incoming mail from attorneys in the inmate's presence. Upholding the regulation, the Court stated "[t]he possibility that contraband will be enclosed in letters, even those from apparent attorneys, surely warrants prison officials' opening the letters." Id. at 577, 94 S.Ct. at 2985. Regarding the inmate being present during the inspection, the Court stated "we think that petitioners, by acceding to a rule whereby the inmate is present when mail from attorneys is inspected, have done all, and perhaps even more, than the Constitution requires." Id.

Appellant's reliance on Davidson v. Scully, 694 F.2d 50 (2d Cir.1982) is misplaced. In Scully, the Second Circuit invalidated a prison regulation concerning...

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