Randy Hoge, Jr. v. S. Griffith ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 20 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RANDY L. HOGE, Jr., No. 20-35705
Plaintiff-Appellant, D.C. No. 6:20-cv-00638-JR
v.
MEMORANDUM*
S. GRIFFITH, A#249,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Submitted December 14, 2021**
Before: WALLACE, CLIFTON, and HURWITZ, Circuit Judges.
Randy L. Hoge, Jr., appeals pro se from the district court’s judgment
dismissing with prejudice his civil rights action for failure to comply with a court
order. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of
discretion a dismissal under Federal Rule of Civil Procedure 41(b). Pagtalunan v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Galaza, 291 F.3d 639, 640 (9th Cir. 2002). We vacate and remand.
The district court dismissed Hoge’s initial complaint, alleging improper
opening of Hoge’s legal mail outside his presence when he was a pretrial detainee,
because Hoge failed to allege from whom the mail was received. See 28 U.S.C.
§ 1915A(b); Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1211 (9th Cir. 2017)
(holding that prisoners and pretrial detainees “have a protected First Amendment
interest in having properly marked legal mail opened only in their presence”);
Keenan v. Hall, 83 F.3d 1083, 1094 (9th Cir. 1996), amended by 135 F.3d 1318(9th Cir. 1998) (legal mail includes correspondence with counsel but not with a
court). The district court granted leave to amend so that Hoge could allege from
whom the mail was received. Hoge did file a motion to amend in which he
explained that the mail was correspondence with attorneys. Because this added
information would cure the deficiencies in the complaint, we vacate the judgment
and remand for the district court to allow Hoge another opportunity to file a first
amended complaint. See Applied Underwriters, Inc. v. Lichtenegger, 913 F.3d
884, 891 (9th Cir. 2019) (setting forth factors district court must consider in
dismissing under Rule 41(b), including the availability of less drastic alternatives).
All pending motions are denied.
VACATED and REMANDED.
2