Packnett v. R. Wingo, 030612 FED9, 10-17529

Docket Nº:10-17529
Party Name:KENNETH JEROME PACKNETT, Plaintiff - Appellant, v. R. WINGO; et al., Defendants-Appellees.
Judge Panel:Before: FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges.
Case Date:March 06, 2012
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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KENNETH JEROME PACKNETT, Plaintiff - Appellant,

v.

R. WINGO; et al., Defendants-Appellees.

No. 10-17529

United States Court of Appeals, Ninth Circuit

March 6, 2012

NOT FOR PUBLICATION

Submitted February 21, 2012[**]

Appeal from the United States District Court for the Northern District of California Jeremy D. Fogel, District Judge, Presiding D.C. No. 5:09-cv-00327-JF

Before: FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges.

MEMORANDUM[*]

California state prisoner Kenneth Jerome Packnett appeals pro se from the district court's judgment dismissing his 42 U.S.C. § 1983 action alleging federal and state law claims related to his incoming legal mail. We have jurisdiction under 28 U.SC. § 1291. We review de novo, Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005), and may affirm on any ground supported by the record. Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008). We affirm in part, reverse in part, and remand.

Dismissal of Packnett's claims for damages against state officials in their official capacity was proper under the Eleventh Amendment. See Flint v. Dennison, 488 F.3d 816, 824-25 (9th Cir. 2007).

The district court properly dismissed Packnett's conspiracy claim against defendants in their individual capacity because Packnett failed to allege that they entered into an agreement to interfere with his legal mail. See Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982) (vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand dismissal).

The district court properly dismissed Packnett's access-to-courts claim against defendants in their individual capacity because Packnett conceded that he did not suffer any injury. See Jones v. Blanas, 393 F.3d 918, 936 (9th Cir. 2004).

However, dismissal of Packnett's denial-of-mail claims against defendants in their individual capacity was improper because Packnett sufficiently alleged that defendants opened various pieces of his legal mail outside his presence in violation of state regulations and the First Amendment. See Cal. Code Regs., tit. 15 § 3143; see also Sherman v. MacDougall, 656 F.2d 527, 528 (9th Cir. 1981) (remanding for a hearing the inmate's claim that defendants opened mail from his attorneys outside his presence in violation of the First Amendment).

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