Michael Hayes v. Idaho Correctional Center

end, however, join In the I under HAYES, Plaintiff-Appellant, Michael T. Mangiara- majority concluding enough stage at this cina has said allege to a constitutional tort. proceedings CENTER; IDAHO CORRECTIONAL majority explains, Mangiaraeina

As the Department Corrections; Idaho continually his pled also Cluney; Burke; Lisa Shannon Jane and, response griev- to his gets opened Does, 3,Defendants-Appellees. 1 - ance, “they open him can an officer told prisoner’s] presence' [legal [a mail] No. 14-35078 they if want to.” The officer said “there is of Appeals, United States Court it[,] they just do it in against [the no law Ninth Circuit. prisoner’s] presence courtesy.” indicate the conduct official’s statements Argued and Submitted June simply was “not one-time mistake or 2016, Seattle, Washington confusion over the contours of the [Marico- Filed March Nordstrom, pa] policy.” 762 F.3d at 911. Maricopa County

Although Jails rules and

regulations comply requirements with the today’s holding, Maj. Op. at if policy

written alone is insufficient intentionally ignoring

staff are just courtesy” “a

since it is and not the Showing disregard a “blatant

“law.” regulations”

established is sufficient

raise an inference of intentional conduct to Lavado,

survive a motion to dismiss. at 611. stage litigation,

At this we must

accept allegations all fact as material them in light

true and construe most Nordstrom, plaintiff.

favorable to Construing Mangiaracina’s

F.3d at 908. liberally,

pro complaint se I conclude that

Mangiaraeina sufficiently claimed that intentionally,

someone is rather than mere-

ly accidentally, opening his mail in

violation of his Sixth rights. may may prove

He not be able

claim, just enough get but he has said opportunity. basis, I judgment.

On that concur in the

pellees Department Idaho of Corrections Cluney. Shannon PAEZ, Before: RICHARD A. and JAY BYBEE, Judges, S. Circuit and JON S. TIGAR,* Judge. District by Judge Concurrence BYBEE OPINION PAEZ, Judge: Circuit Hayes Michael T. appeals the dismissal of his First Amendment challenge pris on officials legal his mail outside presence. Hayes’s complaint alleged four prison employees instances of deliver ing legal mail to Hayes addressed that had been delivery. before The com plaint alleged also prison officials maintained a or cus tom ignoring improper handling of legal mail. The district court dismissed the complaint at the pre-screening stage pur suant to 28 U.S.C. 1915A. On appeal, Hayes argues that the district court erred in dismissing his First Amendment claims against Burke, Defendant Lisa a mail supervisor, room policy-based and his against claims Defendants Shannon Clu- ney, Department Idaho of Corrections (“IDOC”), and Idaho Correctional Center (“ICC”). Servs., See Dep’t Monell v. of Soc. Harry (argued), Williams IV Law Office 56 L.Ed.2d 611 Williams, Seattle, of Harry Washington, (1978). jurisdiction We have under 28 for Plaintiff-Appellant. U.S.C. part, and we affirm in re Naylor (argued) Jacob H. and Kirtlan G. in part, verse and remand. Naylor, Naylor P.C., Boise, Idaho, & Hales Defendants-Appellants Idaho Correc- I. tional Center and Lisa Burke. At all times relevant appeal, this Hayes (argued),

Leslie M. Deputy Hayes Attor- ICC, was housed privately run ney General; Olsen, Steven L. Chief of facility. IDOC Hayes alleges in his Second Litigation; Wasden, Civil Lawrence G. At- Amended Complaint, the operative com- General; torney Attorney Office of the plaint, that ICC mail room illegally staff General, Boise, Idaho; for Defendants-Ap- opens inmates’ in- “especially California, *The Tigar, Honorable Jon S. United sitting by designation. States Judge District for the Northern District of charged facility with sex offences indicated that “[t]he mates who are item received that Defendant Burke alleges He on June 13 was from the US Courts and [sic].” Hayes’s out- improperly logged opened in error. This issue has on four occasions.1 side his been discussed with staff.” Hayes received a On December complaint Hayes’s identified cell already that had piece of mail been mates at the eye- time of the incidents as envelope “clearly was marked opened. The witnesses, Hayes support- attached a law,” attorneys complaint and the as ing Lavin, affidavit from Robert his cell firm that identified the law had sent the during Hayes mate two of the incidents. grievance regarding filed a mail. also that “a lot of correspondence incident, prison responded and the this qualified constitutionally protected piece tape that “there was a on the legal mail illegally opened by [had been] could not tell envelope [prison officials] but Hayes ICC mail room staff.” explained through the mail this if it were sent [sic] Cluney, that Defendant Deputy War- by mistake here or at an- way opened IDOC, den Virtual Prisons at “has not other location.”2 stopped his subordinates from creating a ” ‘policy illegally or custom’ of opening le- 2, 2011,3 Hayes March received an- On gal Hayes mail. described this as that piece legal other mail had been “longstanding pervasive and weli docu- Hayes received it. filed a opened before he incident, mented.” He also identified five attorneys related to this and the grievance Hayes who had sent mail to that had piece “This been prison’s response stated: illegally opened years. Hayes over the in error and not read.” did opened mail was allege any legal not that of the mail that 2, 2011, Hayes alleges that on June an- had been was related to a criminal clearly “mail that piece other was matter; rather, appears the mail to have legal as mail” was marked been related to civil matters. presence. complaint alleged his His through 13, 2011, mail ... legal September Hayes “this was sent On filed a systems” mail and “not prison’s regular complaint pursuant to 28 U.S.C. 1983 managers or correctional through case Idaho state court. Defendants removed the always usually legal counselors who deliver case to federal court. In its initial review prison’s response to The to mail inmates.” order, Hayes’s the district court dismissed indicated that item grievance “[t]he complaint leave to amend. The court with 2 [prison opened on June was not staff] illegal found that three of the claims of courts, attorney an or from the there- from opening Hayes mail had deficiencies that legal per policy.” fore it is not mail [our] cure in an amended com- attempt could (on plaint, remaining and that the incident Finally, “legal on June mail 2, to be an isolat- “appealed] March Hayes to” again was once delivered which ed incident” insufficient to state a constitu- “opened before it was delivered.” had been Hayes tional claim. After filed a Second form related Hayes grievance attached a court Complaint,4 from the Amended the district response to this incident. The allegations grievance that the inci- accept of material 3. The form indicates 1. We as true all 1, Complaint, facts in the Second Amended and actually place dent took on March 2011. light we construe the facts in the most favor- Ryan, plaintiff. Nordstrom v. able to the Hayes complaint 4. filed a first amended 903, original virtually com- was identical to sought plaint, subsequently leave to file but he filed, grievances Hayes he attached complaint, which the dis- a second amended responses, facility’s to the Second well as the Complaint. Amended mail opened. ent when his civil We complaint prejudice. with dismissed complaint that the did explained court agree. of the June identify the sender McDonnell, mail, grievance and the Wolff or June (1974), L.Ed.2d 935 the Su 13, 2011 mail indi- the June response preme challenge from the United States addressed a to a that it was Court cated attorney. an than from With rather courts prison guards open all rule that allowed 28, 2010 incident December to the respect only presence in the but incident, 2, 2011 the court March and the prisoner to whom the mail was addressed. facts Hayes pled had sufficient found permissi The Court held that the rule was but that improper allege ble because “the inmate’s insures incidents insufficient to were isolated these mail,” officialswill not read the against Defen- state a constitutional [attorney- would not “chill and therefore The court also dismissed dant Burke. communications.” Id. at client] policy or custom claims Hayes’s Monell added). (emphasis S.Ct. 2963 The Court IDOC, Cluney, Defendants against noted, however, that “the constitutional simply repeated had ICC because original forth in the com- claims set rights status of the asserted ... is far the court had dismissed as which plaint, clear,” from id. at in its initial review order. insufficient the Court did not define the source or timely appealed. Hayes scope rights of these since it concluded presence adequately pro that the inmate’s II. any rights Wolff, tected at stake. After jurisdiction pursuant have to We Supreme regulation Court clarified that a 1291, a and we review de novo 28 U.S.C. prisoners’ that burdens constitutional dismissal for failure to state district court’s rights reasonably if it is “valid is related to a claim under 28 U.S.C. 1915A.Resnick legitimate penological interests.” Turner v. (9th 443, 447 Hayes, v. 213 F.3d Cir. 78, 89, 2254, liberally Safley, are construed complaints “Pro se 482 U.S. 107 S.Ct. 96 appears if it may only be dismissed (1987). L.Ed.2d 64 v. Ab Thornburgh prove can beyond plaintiff doubt that bott, 401, 413-14, 1874, 490 U.S. 109 S.Ct. support in his claim no set of facts (1989), 104 L.Ed.2d 459 the Court ex him to relief.” Nord which would entitle plained applies that the Turner test to (9th 903, F.3d Ryan, strom v. 762 908 Cir. incoming mail prisoners. restrictions on to omitted). 2014) (internal quotation marks Ryan, recently In Nordstrom v. we held III. that a single guard reading instance of a a A. prisoner’s mail was sufficient to establish a right violation of the Sixth Amendment to that argues the First right pres- to 762 protects recognized Amendment be counsel.5 F.3d 903. We that granted. formally legal prisoners’ court The court never mail. We did not address trict complaint. rights respect clearly legal amended the first with marked reviewed lawyer, explicitly mail from a and we declined clearly to decide “whether mail sent from a previously prisoners’ legal 5. We addressed 1083, Hall, lawyer lacking 'Legal to an inmate but rights in Keenan v. 83 F.3d mail 1996), (9th designation may Mail' be outside the 1094 Cir. amended on denial of (9th 1998), reh’g by F.3d 1318 Cir. in of the inmate.” Id. In Stevenson v. 135 1435, (9th 1989), Koskey, we held that mail from a court rather 877 F.2d a which lawyer qualify protected probation visiting prisoner than a did not officer handed allegation right “that his rights. Nordstrom’s cates First Amendment In Procu privately confer with counsel has been Martinez, nier v. 416 U.S. represented plausible

chilled” “a conse- 1800, (1974), L.Ed.2d 224 over quence reading of the intentional of his grounds ruled on other by Thornburgh, 911; mail.” legal confidential Id. see also 401, 490 U.S. 109 S.Ct. the Court (9th Lewis, Casey v. held that censorship correspondence be in (noting the context of an tween inmates and those outside of “legal access-to-courts mail impermissibly burdened the First Amend copied nor without permis- not be read speech ment free rights non-prison inmate”), sion of the rev’d on other ers, regardless of whether the inmates’ grounds, 116 S.Ct. 135 rights implicated. Later, Turner, were (1996). In Mangiaracina L.Ed.2d 606 v. 84-91, U.S. Penzone, 14-15271, No. recognized Court that a statewide rule 3, 2017), 2017 WL 836070 Cir. Mar. barring prisoner-to-prisoner correspon concurrently opinion, filed with this we penal dence across implicated institutions Amendment, held the Sixth addi- prisoners’ First rights. We prohibiting guards from reading tion have also recognized the First Amendment prisoner legal protects right also rights prisoners to “send and receive of a prisoner present to be while mail mail,” Faff, Witherow relating proceedings opened. to criminal 1995), though we yet have not Mangiaracina, In both Nordstrom prisoners’ addressed First Amendment analyze we declined to the plaintiffs’ claims right to have in their any provisions under constitutional besides presence. Amendment, claims the Sixth since the Relying part on Procunier and Tur- criminal correspondence related to about ner, several of our sister circuits have held squarely matters and therefore fell within opening legal pres- mail outside the scope Mangiara Amendment. ence of the addressee inmate burdens cina, 1195; Nordstrom, at 849 F.3d rights. First Amendment The Third Cir- Nordstrom, recognized F.3d at 909. We policy cuit has reasoned that a state however, “analyzed that other courts have custom of regarding confidentiality claims the of at opening legal presence mail outside the

torney-inmate communications under vari inmate principles, including ous constitutional of the addressee interferes with communications, right First Amendment to freedom of protected strips those speech and the Fourteenth Amendment protected communications of their confi- rights process to and access to the due dentiality, accordingly impinges and courts, or some combination of these right upon the inmate’s to freedom of rights.” 762 F.3d at 909.6 speech. practice deprives The the ex- pression confidentiality of and chills the

The Supreme recognized Court has prisoner correspondence impli- protected expression, regard- least inmates’

piece legal guard, Hayes argued only mail confi- to who then 6. Because that his opened prisoner's pres- the mail outside the attorney-client dential communications are recognized ence. We that "the relevant event Amendment, protected by we the First do not purposes analyzing [the defendant’s] pro- whether constitutional address additional culpability injury, is the constitutional protect also communications. visions these guard's opening of the letter outside [the prisoner’s] presence” but concluded that the probation named defendant —the officer— could not held liable. be good-faith protesta- grounds by on other Thornburgh, the state’s U.S.

less of not, not, 401, 109 it does and will read tions that the communications. This

the content of reasoning of these decisions our only way to ensure is so because persuasive. sister circuits is a pris When read when is to that mail is not legal oner receives confidential mail that it done in the require that be re-sealed, may has he been inmate it is to whom addressed. understandably wary engaging be (3d Brown, privileged future communication about le 461 F.3d Cir. Jones v. Moreover, 2006) (internal gal prisoners’ marks and altera- matters. commu quotation omitted). attorneys nications with civil often relate The Eleventh Circuit has tions challenging to lawsuits the conditions of “given their incarceration observed prison wrongful confinement in the con attorneys, from their and often distance prison employees. duct of When the mail to use of communicate prisoners’ open legal prisoners may officials attorneys their criminal their about with justifiably be concerned about retaliation may frequently important be a more cases very prisoner from the officers the than the use of their speech right free wrongdoing. may accused of Prisoners also Smith, Al-Amin v. tongues.” worry that the contents of the letters could 2008). (11th In addition 1333-34 along facility’s be passed lawyers, Circuits, Eleventh to the Third and who would learn the prisoner’s legal Sixth, Second, and Tenth Circuits have Vernon, strategy. See Gomez v. recognized that the mail 1118, 1123-24 prisoner’s presence implicates of a rights. First Amendment See Merriweath worse, prisoners’ To make matters ave- Zamora, 569 F.3d er v. Cir. nues of confidential communication with 2009) (“[W]e improperly have held that Idaho, attorneys are cur- limited. opening prisoner’s implicate does rent telephones on and electronic Amendment.”); least the First Davis v. provides “[ajttorney communications (2d Goord, email, using digital pho- communications prisoner’s right that “a (explaining tograph, messaging and video are not incoming outgoing mail free flow of is privileged, are archived and be re- protected by the First Amendment” and viewed.” Idaho Department of Correc- right has a prisoner present “a be Procedure, Operating tions Standard opened,” noting when his mail is but Telephones and Electronic Communica- tamper that “an isolated incident of mail Inmate, 503.02.01.001, tions: Control No. h ing usually is insufficient to establis a available https://www.idoc.idaho.gov/ violation”); Lamm, constitutional Ramos v. content/policy/3743, messages at 7. “Voice (10th (holding by attorney 639 F.2d Cir. left an for an offender are that, prison where the offered privileged least no not and are recorded and can justification prisoners’ Beyond mail to be monitored.” Id.' at 6. these attorneys barriers, their presence, prac regulatory legal this representation “invalid under the First and Four by document-heavy tice was is nature a enterprise, Amendments”), abrogated part teenth and the contents of documents cannot al- 201(b)(2); judicial 7. We take notice of the IDOC’s Stan- tioned.” Fed. R. Evid. see United Procedure, Thornton, Operating dard as it is “not sub- States v. 511 F.3d 1229 n.5 ject dispute” to reasonable and "can be accu- 2008) (taking judicial notice of a rately readily determined from sources statement). federal Bureau of Prisons accuracy reasonably ques- whose cannot be by phone and The district ways properly be communicated court dis always communicated in a should not be missed two counts of alleged improper addition, In non-privileged email. some opening. mail For the Hayes incident that by prisoners represented are counsel 2, 2011, alleged occurred on June the re of the state or part from a different from sponse facility from the indicated that the state, making in-person out of visits cost- legal item was not mail. In his Second consuming. Hayes, for exam- ly and time Complaint, Hayes Amended did not clarify ple, incarcerated in Boise but was was who sent mail or prop whether it was represented appeal by in this a Seattle- erly “legal marked as mail.” The district factors, attorney. present based These court properly therefore concluded that elsewhere, im- highlight Idaho and Hayes had not met his plausibly burden of attorney undertaking mense both —for alleging that the opened item outside his litigating from prison, and chent—of and presence protected legal was mail. See Bell legal of confidential mail importance 544, 570, Corp. Twombly, Atl. v. undertaking that feasible. making (2007). 167 L.Ed.2d 929 observed, previously

As we have “[i]t properly The district court also dismissed imagination takes no stretch of to see how Hayes’s respect with to the June an inmate would be reluctant to confide in grievance 2011 incident because the re crime, lawyer the facts of about sponse indicates that mail was from crimes, perhaps possible plea other bar- courts. United States “Mail from the gains, and the intimate details of his own courts, as contrasted to mail from a prison lives, if family life and his members’ he lawyer, is not legal er’s mail.” Keenan v. going that a guard privy knows be Hall, 1083, 1094 them, Nordstrom, too.” 762 F.3d at 910. Accordingly, the First Amendment does only way Because “the to ensure that mail prohibit opening such mail outside the opened require is not is to read when recipient’s presence. it done in the of the inmate to be alleged other two instances addressed,” Jones, whom it is 461 F.3d at however, Hayes, do state a Amend First Reno, (quoting Bieregu respect ment claim. to the mail that With' (3d 1995)), prisoner a who Hayes received on December receives mail that has been Hayes the sender was law justifiably and re-sealed be concerned facility’s response Hayes’s firm. The confidentiality about the of his communica- grievance regarding the incident acknowl agree tions. We therefore with the conclu- piece tape that “there was a on edged sion of the Sixth Circuit or “[t]wo envelope” but stated that offi arbitrary mail in an pieces three cials “could not tell if it were sent [sic] way capricious suffice to state claim.” through way opened by the mail this Merriweather, 569 F.3d at 318. here at another location.” mistake or. sum, prisoners recognize we identified the sender of the both protected have a First Amendment inter- plausibly alleged mail and that it had been having properly est in marked opened by prison a official his outside opened only presence. in their presence. B. Hayes to the mail that respect With 2, 2011, similarly on March he received Hayes alleged turn to whether facts We legal opened mail been alleged that his had sufficient to state a First Amendment facility’s re- presence. claim. hold that he has. outside his The We 1212 grievance piece argue Hayes to his stated: “This Defendants has failed

sponse allege anything beyond negligence. As error and not read.” of mail was above, however, Hayes alleged noted has they then confirmed that Prison officials illegally opened ICC mailroom staff piece legal mail that had mail, legal “especially inmates’ inmates 2, Hayes on March 2011 outside received charged who are with sex offences [sic].” presence. his Hayes allege While does not that he was offense, The district court held that because judicial convicted of a sex we take 28, the December incident and the notice of fact that he was convicted of 2, “lewd-and lascivious conduct” with a “mi- March 2011 incident were isolated inter mail, nor under 16.”8 IDOC Search Hayes’s Hayes ferences with could Offender (Nov. Details, Dep’t Idaho of Corrections proceed on his First not 10, 2016), https://www.idoc. available at against plaintiff Defendant Burke. But a idaho.gov/content/prisons/offender_search/ allege a longstanding practice need Reading Hayes’s pro se com- detail/20633. violating rights his First Amendment must, plaint generously, as we we there- order to a claim a state for relief on direct Hayes fore conclude that a liability Brooks, theory. Sallier v. plausible protected claim that mail his was 2003), F.3d the Sixth arbitrarily capriciously opened upheld jury’s punitive Circuit award of his separate on two occasions. compensatory damages against and two Nothing required. further is prison mail room clerks for three counts of where, in improper mail all three Hayes required Nor is to “show instances, “the defendants listed the let any injury beyond actual the free speech log ters on the mail” violation itself to state a constitutional “simply failed to follow established Al-Amin, claim.” F.3d 1333.9Rath procedures requiring plaintiffs] pres [the er, injury alleges is “that ence before opened.” the letters were right privately confer with counsel failure, court held that after “[s]uch rec Nordstrom, has been chilled.” ognition of the protected legal letters as injury 911. This is sufficient to state a objectively unreasonable.” Id. at First Amendment claim. Laird v. See Ta Later, Merriweather, 880. 569 F.3d at tum, 408 U.S. 92 S.Ct. (1972) the Sixth Circuit concluded “[t]he (explaining L.Ed.2d 154 that “con [prison] defendants’ admission that em stitutional violations arise from the ployees improperly opened pieces deterrent, four ‘chilling,’ govern effect of legal mail enough is ... alone to state a mental that fall of a [actions] short direct (footnote omitted). claim” prohibition against the exercise of First judicial 8. We challenge. take notice of the IDOC’s Of- mount a successful access-to-courts Database, subject fender itas is "not to rea- Both the Third and the Eleventh Circuits have dispute” accurately sonable and "can be injury requirement ap- held that "the actual readily determined from sources whose accu- plies to access-to-courts claims but not to free racy reasonably questioned.” Smith, cannot be Fed. speech Al-Amin v. claims.” 201(b)(2). R. 2008); Evid. see Jones v. Brown, (3d 2006) ("We reject Casey, argument Supreme ... that the In Lewis v. (1996), Supreme Casey Court's decision in ... 135 L.Ed.2d 606 Lewis re- quire[s] plaintiffs prove group prisoners challeng- injury- Court held that a that the some ing adequacy beyond infringement law libraries in-fact were of constitu- required injury tionally protected speech."). actual show in order to “the chal rights,” ordinarily where S.Ct. 2018. We “will not consider lenged governmental power exercise of appeal matters on specifically are not regulatory, proscriptive, compulso or was distinctly argued appel- raised and in nature, ry complainant in and the was opening lant’s brief.” Justice v. Officersfor subject to presently prospectively either or City Civil Serv. Comm’n Cty.& San regulations, proscriptions, compul (9th Francisco, 979 F.2d challenging.”); sions that he was Hines 1992) (citation omitted). Hayes’s opening cf. Gomez, 108 F.3d brief does not discuss his policy Monell (holding, in the context of a First Amend against custom claims Cluney, Defendants claim, injury ment retaliation that “the IDOC, ICC, nor it any does cite au- retaliatory asserted is the accusation’s thority related to these claims. there- We chilling effect on Hines’ First Amendment fore Hayes’s argument, decline to address rights.... Hines’ failure to demonstrate brief, reply raised for the first time in his injury nullify his more substantial does dismissing that the district court erred in claim.”). retaliation policy-based claims. fact

Finally, recognize we prisoners’ that a prison’s “burden[ actions ] above, For the reasons set forth we not, rights First Amendment does howev reverse the district court’s dismissal of whether, er, policy practice] tell us [or Hayes’s First Amendment claim against necessarily is constitutional. Prisoners sac Defendant Burke and affirm the dismissal many rights rifice of the constitutional policy-based against of the claims the re- available to non-incarcerated citizens.” maining defendants. Jones, Instead, at “[t]he 461 F.3d 360. question, as articulated relevant part, judgment The is AFFIRMED in Turner, Supreme Court in is whether the part, and REMANDED. REVERSED ‘reasonably is related to parties shall their own costs on bear ” penological interests.’ Id. legitimate appeal. Turner, at (quoting U.S. 2254). Here, yet Defendants have not had BYBEE, Judge, concurring Circuit opportunity present in district court to judgment: legitimate penological evidence of a reason I concur in the conclusion in Part III.A opening Hayes’s pres mail outside his majority opinion, prisoners ence. right to general have a First Amendment Thus, we conclude that has stated present be when mail related to a a First Amendment claim on the facts inspected. separately civil matter is I write alleged, and the district court erred majority I because don’t think the dismissing pre-screening this claim the .at clarity with sufficient what explained Merriweather, stage. See 318. required state a First Amendment claim remand, On Defendant Burke offer deeply I am con- under U.S.C. legitimate penological reason for majority opinion’s that the charac- cerned Hayes’s legal summary mail at either Ryan, of Nordstrom v. terization judgment or trial. 2014), and out-of-circuit cases

IV. with either intentional acts or which dealt Maj. Op. pattern-and-practice allegations, Finally, Hayes any waived 1208-12, may mislead the district courts policy- of his challenge to the dismissal Monell, merely parties thinking and the into based claims. See 1214 later, 536-37, is to state a 101 S.Ct. 1908. Five years conduct sufficient

negligent § It is not. If the overruled Parrott in Daniels v. under 42 U.S.C. 1983. Court claim Williams, 327, clear, 330-31, 474 beyond now U.S. 106 S.Ct. once not it is it was (1986). 662, L.Ed.2d 662 time the proof § of in- 88 This requires 1983 question tentional, Process Court concluded “the Due merely negligent, not acts de- simply negli a implicated by Clause is party rights.1 a of his constitutional priving of an gent causing act official unintended I life, injury liberty, proper loss of or to Davis, Supreme 328, Paul v. Court In ty.” 106 The Court Id. S.Ct. 662. § the notion that 1983 had con rejected that “lack of due no süggests stated care “the [into] verted Fourteenth Amendment up more than a failure to to the measure superimposed upon of tort law to be a font of a To hold person. conduct reasonable systems already be adminis injury by whatever caused such conduct is a by the deprivation tered States.” 424 U.S. 96 within the of the meaning 1155, (1976). It 47 L.Ed.2d 405 was Fourteenth Amendment would trivialize S.Ct. enforce, say principle process to than to and the the centuries-old of easier due 332, in of Id. at 106 “Our Supreme missteps Court had its own law.” S.Ct. 662. Constitution,” wrote, the Court “does not determining what constitutional kind of 1977, purport supplant § to traditional law 1983 tort torts covers. Court laying regulate down rules of conduct v. to granted certiorari in Procunier Navar injuries liability living to 555, 855, attend ette, 434 55 U.S. 98 S.Ct. L.Ed.2d Nevertheless, society.” (1978), gether Id. 24 to decide offi whether (cid:127) “not possibility Court would rule out the negligent prisoner’s a handling cials’ of are provr that there other constitutional outgoing mail could be the for dam- basis would lack by sions that be violated mere § ages got under never The Court 334, Id. at 106 care.” S.Ct. 662. there; instead, it case on decided the qualified and left to immunity basis Notwithstanding the Court’s reservation day the question another critical wheth judgment, logic Daniels’s has since been § negligent er 1983 covered conduct. Id. at extended, amendment, to amendment n.6, 98 S.Ct. 855. v. McCol See Baker rights by the protected other fundamental lan, 2689, And, Rights. Bill of so far as I can deter- (1979) L.Ed.2d 433 how Procu- (explaining court § no has held that a mine, dodged years question). nier Two la proved by negligent can be mere conduct. ter, in Parratt v. Taylor, 451 U.S. example, For the First free Amendment (1981), L.Ed.2d 420 context, part of negligence exercise on the § Court considered whether 1983 was a enough official government is not proper compensate prisoner vehicle to rights violation of show a constitutional negli under the Due for a Process Clause sufficient to state a claim for under relief gent loss of property. Shelton, § The Court said Gallagher v. 1983. See loss, though negli that “the even (dismissing caused, gently deprivation” amounted to a 1983 claim because “an act of isolated was negligence actionable under 1983. Id. at would not violate an inmate’s present right 1. Portions of this identical to to be concurrence are ment when portions my companion inspected by prison guards; Mangiaracina concurrence in the ad- case, Penzone, 14-15271, Mangiaracina pres- right No. Sixth be dresses the Amendment same, principles nearly 2017 WL 836070 ent. The are my This case addresses the First Amend- concerns are the same. right act,” First knowing free exercise of as well history as the Lee, religion”); Lovelace v. 472 F.3d Amendment, Fourth which was addressed “ (4th 2006) 201 (“[Negligent by Cir. acts power,’ to ‘misuse of not the accidental causing officials unintended denials of reli effects of otherwise lawful government gious rights do not violate the Free Exer (citation omitted). conduct.” Id. The Court Clause.”); Mitchell, cise v. Lewis 416 elaborated: (S.D. 2005) (hold 935, F.Supp.2d 944 Cal. a parked [I]f and unoccupied police car ing negligence more than required is slips its brake pins a passerby § claim state a valid 1983 for violation of wall, against a it likely is that a tort has prisoner’s right First Amendment freely occurred, but not a violation of the Winston, religion); exercise Shaheed v. 885 Fourth Amendment. And the situation (E.D. F.Supp. 861 Va. (finding “de would change not if passerby hap- negligent, fendants actions were [sic] not chance, pened, by lucky to be a serial intentional, plaintiffs may rely and the not murderer for whom there was an out- § claim”), on as a 1983 basis for this aff'd standing if, arrest warrant —even at the (4th grounds, on other 161 F.3d 3 Cir. time pinned, he was thus he was in the 1998) (unpublished). process of running away from pur- two Similarly, cases, in access-to-court also suing clear, constables. It is in other Amendment, under the First the circuit words, that a Fourth Amendment sei- uniformly courts have negligence held that zure does not occur whenever there is a is not sufficient to raise a claim under governmentally caused termination of an Circuit, § 1983. The for example, Seventh (the individual’s freedom of movement has found that “a mere isolated incident of passerby), innocent nor even whenever ... negligence does not rise the level to. there is a governmentally caused and a constitutional violation actionable under governmentally desired termination of Vail, section 1983.” Kincaid v. 969 F.2d an individual’s freedom of movement (7th 1992); 602 Cir. see also Crawford- (the felon), fleeing only but when there (D.C. Britton, El v. 951 F.2d 1318 governmental is a termination of free- 1991) (holding that intentional inter- through dom of movement means inten- ference with access to court violates Con- tionally applied. stitution); Lester, Pink v. 76 596-97, Id. at 109 S.Ct. 1378. We have 1995) (holding negligent con- similarly held that to state a Fourth duct in misrouting a form does not violate against government Amendment claim right petition). First Amendment’s investigator submitting for false and mate- context, In the Fourth Amendment affidavit, rial information in a warrant “a Supreme Court has held that “[violation plaintiff must show that the investi- of the Fourth requires Amendment an in gator deliberately ‘made false statements tentional acquisition physical control. A recklessly disregarded the truth in the- seizure occurs even when an unintended affidavit’ and that the falsifications were person thing object is the of the deten finding probable ‘material’ to the cause.” tion or taking, but the detention or taking Clara, Cty. v. Galbraith Santa itself Cty. must be willful.” Brower v. 2002) (emphasis add- 593, 596, 109 Inyo, 489 U.S. S.Ct. ed) (citation omitted). (1989) (citations omitted). L.Ed.2d 628 context, Eighth In the Supreme Court found Amendment support for this holding in the text Supreme of the Fourth Amend Court has found that more then ment, since imply negligence required seizure does not an “un- claim to raise a conversation, punishment. v. “chill” their but—with- and unusual Wilson

cruel 294, 297, Setter, nothing actionable un- U.S. out more—has done (1991); Gamble, mail clerk who Similarly, Estelle der 115 L.Ed.2d accidentally up, 50 L.Ed.2d seals it opens (1976). Estelle, Supreme mistake, Court “opened and notes Eighth an rejected read” has not violated the First Amend- provide inadvertent failure to on ment, based prisoner-recipient even if the is un- care: adequate medical to receive his mail in that format. If happy physician that a has been complaint veracity prisoner [A] doubts the a diagnosing treating in negligent clerk, pattern a or has seen broad of not state a valid medical condition does improperly opened legal prisoner the the of medical mistreatment under claim allege should that the act is intentional or malprac- Eighth Amendment. Medical that an inference of intent should be drawn a tice does not become constitutional practice. To fail pattern from the and merely victim is a violation because the recognize alleging importance the inten- cognizable In a prisoner. order to state be to risk strict liabil- tional conduct would claim, prisoner allege a must acts or ity something claims under no sufficiently harmful to evi- omissions approved. court has ever indifference to serious dence deliberate II needs. medical Wilson, Hayes’s 429 U.S. S.Ct. 285. Applying principles the above “ only claim, added that such ‘[i]t the Court “policy a Eighth that can violate the indifference’ practice” illegally opening inmates’ Amendment; allegations of ‘inadvertent particularly “inmates who are mail— provide adequate failure to medical care’ charged with sex offenses.” These are suf- simply ... ‘negligent diagnoses]’ or of a allege ficient facts to a constitutional viola- requisite culpable the state fail to establish pleading stage litigation, tion at the 501 U.S. at 111 S.Ct. 2321 of mind.” though even the offered an ac- State has Estelle, 105-06, (quoting Hayes’s incoming count the 285) (alteration (citations original) in legal mail on December 2010 and omitted). allegations March 2011 that calls his into question. in- These same considerations should judgment our the First form about A right present to be when majority opinion The focuses on whether inspected. mail related to a civil matter is the number of incidents was sufficient to nothing attorney-client There is about the state a cause of action but overlooked the merely in- relationship suggests question of nature of the incidents advertent conduct that touches on alleged. opinion The concludes that two relationship is constitutional violation. accidentally incidents two months a First “state[] courthouse custodian who attorney-client alleged.”2 in on an conference Amendment claim on the facts walks remand, majority applies 2. On will allow the even to inadvertent conduct. What “legitimate penological penological State to offer a rea- reason can the State offer if opening Hayes's legal Maj. Op. son” for mail. someone the letter mistake? The However, opinion strongly suggests at 1213. the test created in Turner v. thus that mistake or (1987), Safley, “legitimate penological U.S. inadvertence is not a 107 S.Ct. 2254 so, Hayes’s nearly prison regulations. was directed at Id. at reason.” If sounds in liability. 107 S.Ct 2254. I am not sure how the test strict familiar, Maj. conclusion, Op. 706(2)(A), at 1213. To reach this but it is not a stan- opinion heavily relies on our recent dard for judging constitutional torts. The Nordstrom, decision for the proposition majority borrows the phrase from the that a “single improper instance” of read- Circuit, Sixth apparently where it originat- ing of a prisoner’s give mail can rise to a Johnson, ed Parrish v. 800 F.2d 600 Maj. constitutional Op. violation. at 1208- 1986). (“[T]his See id. at 604 case Nordstrom, (citing How- concerns arbitrary Turner’s opening and ever, single incident in Nordstrom was reading of personal Giles’ ... mail. A ca- sufficient because it “was not simply a one- pricious interference prisoner’s with a in- time mistake or confusion over the con- coming mail upon guard’s based personal [prisión] policy [prison tours ... prejudices violates the First Amend- personally d]irector ha[d] informed [Nord- ment.”). But we shouldn’t mistake “arbi- prison officials permitted strom] are trary capricious” conduct in this con- Nordstrom, to read his mail.” 762 text something as less than “intentional There, F.3d at 911-12. our opinion not- conduct.” gave The case that us the unfor- ed, openly officials read Nord- Parrish, phrase, tunate involved intention- strom’s mail in him front of and over his al prisoner, conduct: the who was paraple- And, protests. prison’s Id. the re- gic, prison “testified that guard] [a would sponse prisoner’s grievance to the was not randomly open and read his personal mail that this was a mere accident an isolat- or and that guard] [the would also taunt him ed instance of reading legal but rath- by waving open the mail in front of him.” that policy permitted guards er its to read Id. at 603. The court observed that the legal mail long as it was done in the case regularly did not involve “a applied prisoner’s presence. (noting Id. at 907 that regulation ... or a random interference response director’s grievance prisoner’s with a mail.” Id. at 604. Parrish reasoned that “[s]taff is authorized to scan involved an allegation that the defendant prohibited and is not from reading the mail intentionally had prisoner’s violated the to establish the absence of contraband and cases, rights. Other Sixth Circuit which ensure the content of the mail is of have continued imprecise to use the “arbi (alteration subject original)). matter” in trary capricious” language, and also in fact, in prison regulations, prohibited The allegations pattern- volve of intentional or reading outgoing attorney-client corre- See, and-practice conduct. e.g., Merri spondence. Id. 910-11. Nordstrom is weather, 569 F.3d at (finding that six principle consistent with the that improperly teen instances of opened legal only covers intentional affecting acts con- mail were sufficient to state a cause of rights. stitutional action); Brooks, 868, Saltier v. 343 F.3d majority opinion The later concludes (6th 2003) 879-80 (upholding Cir. a or pieces opened “[t]wo three of mail damage where prisoner award could arbitrary in an capricious way or suffice to prove deliberately opened officials had (alteration Maj. state a claim.” Op. at 1211 pieces three mail prisoner and the in original) (quoting Merriweather v. Za- request “had filed written to have such (6th mora, 2009)). 569 F.3d I Cir. only mail opened presence”); Lavado regret majority that the an has introduced (6th Keohane, v. Cir. “arbitrary capricious” or standard into the 1993) (holding it was sufficient that evaluation of 1983 claims under the First prisoner alleged that Bureau of Prisons Amendment. That standard is well-known context, employee disregard the administrative law it had “blatant for estab where prescribed statute, by lished regulations gave] U.S.C. rise to an [that B arbitrary capricious action” inference of alleged prisoner that the had noting and opinion The concludes properly “read Lavado’s that defendant claim for facts to state a sufficient proceeded correspondence marked open- mail improper legal two instances of card so Lavado give Lavado his business (December 28, 2010 and March ing correctly his name spell be able to would inci- respect to the December With Sewell, sued”); Reneer v. when Lavado dent, “legal received Hayes alleged he 1992) (“[I]f 259-60 The already opened.” ... which had been read, actually and this action was mail was grievance to the he filed prison’s response alleges, by plaintiff retaliation as motivated from various gathered includes information by prison might officials [be] supervisor they open ... indicated did not or, here, practice, tern and as is the case legal mail and if this [sic] the offenders legal mail out- explicit policy, of they would have indi- would have occurred inmate” presence the of the addressee side envelope.” on the In the second cated this v. rights); violates constitutional Davis incident, Hayes’s prison the admitted that (2d Goord, 320 F.3d prison in also mail was error. (“[A]n tampering of mail isolated incident that the mail was not read. said usually to establish a consti- is insufficient themselves, allegations, by are These Rather, tutional violation. the inmate must of not sufficient to state a cause action ‘regularly and prison that officials show end, however, join In the I under 1983. unjustifiably incoming interfered with the ” majority concluding Hayes in has (citations omitted)). legal mail.’ enough stage proceed- at this said majority simply I wish the had stated ings allege a constitutional tort. As the the parties the obvious for the benefit of majority Hayes pled that Defen- explains, court: in order to survive a and the district Cluney, Deputy of dant Warden Virtu- prevail motion to dismiss—much less on Department al Prisons at the Idaho plaintiff allege the merits —the must some (IDOC), stopped “has not his Correction part action kind of deliberate on creating ‘policy subordinates from ” prison allegation prison officials. An “illegally opening custom’ inmates mail, prisoner’s legal officials pres- clearly marked allegation inmate,” without an the mail was mail room ence of the and that deliberately negligently not opened, and is supervisor imple- Lisa Burke “continues to policies to state a cause of action and customs.” ‘illegal’ sufficient ment these filings in his this Hayes also states under 1983. . practice particularly prevalent for “in- America, UNITED charged

mates who are STATES of with sex offenses.” Plaintiff-Appellee, Although policy complies IDOC’s official requirements with the of today’s holding, outling incoming legal that for “[a] VAZQUEZ-HERNANDEZ, Rosario open inspect unit staff member will AKA Jimenez-Valdez, Jose Alfredo envelope of the inmate Defendant-Appellant. it,” Corr., but will not read Dep’t. Idaho Procedure, Operating Standard Mail No. 15-10009 Facilities, Handling in Correctional Con- United States Court Appeals, £02.02.01.011, trol Number https://www. Ninth Circuit. idoc.idaho.gov/content/policy/588, at that written alone is insufficient if Argued September Submitted intentionally staff are violating that Francisco, San California policy for sex Showing offenders. a “bla- Filed March tant disregard regulations” established is sufficient to raise an inference of inten-

tional conduct to survive a motion to dis- Lavado,

miss. 992 F.2d at 611. stage

At this litigation, we must

accept allegations all of material fact as light

true and construe them the most Nordstrom, plaintiff.

favorable to the. Construing Hayes’s

F.3d at pro se

complaint liberally, I conclude that sufficiently claimed that someone is

intentionally, merely rather than acciden-

tally, opening mail in violation of

his First Amendment rights. He claim, prove not be able to but he just enough get opportuni-

has said thé

ty. basis, judgment.

On that I concur in the such behavior notes employees prison. opinion in the The ”). ... The decisions Fink that “there arbitrary Manager ... action stated Case tape envelope on the but majority piece from other circuits was a cited if it See, [prison could not tell were contrary. e.g., officials] Al-Amin not to the are way through sent the mail this [sic] Smith, 511 F.3d v. opened by mistake here or at another loca- 2008) (finding prisoner alleged “pattern (citation omitted). Maj. Op. at 1207 tion.” clearly ... marked practice opinion parts leaves out the other mail”); Brown, attorney Jones note that the prison’s response, which (3d (noting prison 359-60 charge initially responded staff member open all mail policy required officials in error would have marked “[w]e in order prisoners if and the “mail room we had it” pat- anthrax and state “[a] to screen for

Case Details

Case Name: Michael Hayes v. Idaho Correctional Center

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Mar 3, 2017

Citation: 849 F.3d 1204

Docket Number: 14-35078

Court Abbreviation: 9th Cir.