Nick Mangiaracina v. Paul Penzone

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NICK MANGIARACINA, No. 14-15271

Plaintiff-Appellant,

D.C. No.

v. 2:13-cv-00709-

NVW-SPL

PAUL PENZONE; CRAIG GARCIA,

named as: Sgt. Garcia #A7747;

UNKNOWN HANSEN, Officer of the OPINION

MCSO; EDDIE DE LA ROSA, Sgt./

A7779; ANTHONY MANK, Sgt./

A4767; JOHN BEDDOME, Sgt./

A4986; JESSE NYLAND, Inmate

Classification/ A7875; DEAN

WAGNER, Inmate Classification/

A5441; UNKNOWN HARMON, named

as Captain Harmon; UNKNOWN

GARCIA, named as Lt. Garcia

#A4226; BILL WILLIAMS, External

Reffern; UNKNOWN WADE, named

as BHO Sgt. Wade; UNKNOWN

PARTIES, named as John/Jane Does

1–10 Mesa Police Department and

John/Jane Does 1–100 County of

Maricopa; UNKNOWN PARTY, named

as MCSO BHO on Grevince #12-

03278; MARICOPA COUNTY, County

of Maricopa John/Jane 1–100

Defendant; UNKNOWN PARTIES,

John Doe #1, John Does #3–14;

2 MANGIARACINA V. PENZONE

UNKNOWN CAPANARO, Captain at

4th Avenue Jail in April 2012;

MCSO SMURC BOARD, John and

Jane Does 15–20,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Arizona

Neil V. Wake, District Judge, Presiding

Argued and Submitted June 6, 2016

Seattle, Washington

Filed March 3, 2017

Before: Richard A. Paez and Jay S. Bybee, Circuit Judges

and Jon S. Tigar,* District Judge.

Opinion by Judge Paez;

Concurrence by Judge Bybee

*

The Honorable Jon S. Tigar, District Judge for the U.S. District

Court for the Northern District of California, sitting by designation.

MANGIARACINA V. PENZONE 3

SUMMARY**

Prisoner Civil Rights

The panel affirmed in part and reversed in part the district

court’s dismissal of a complaint pursuant to 28 U.S.C.

§ 1915A, and remanded in an action brought pursuant to 42

U.S.C. § 1983 by a prisoner who alleged First and Sixth

Amendment claims arising from jail employees opening his

legal mail outside his presence while he was a pretrial

detainee.

The panel reversed the district court’s dismissal as to

illegal mail openings on two separate occasions. The panel

held that under Nordstrom v. Ryan, 762 F.3d 903, 908 (9th

Cir. 2014), prisoners have a Sixth Amendment right to be

present when legal mail related to a criminal matter is

inspected. For the remaining counts, the panel held that the

district court correctly determined that plaintiff failed to

allege that the mail opened was properly marked as legal

mail.

The panel reversed the dismissal of plaintiff’s First

Amendment claim, and remanded to the district court for

consideration, if necessary, of this claim in light of Hayes v.

Idaho Correctional Center, No. 14-35078 (9th Cir. March 3,

2017), filed concurrently with this opinion.

Concurring in the judgment, Judge Bybee agreed with the

conclusion that prisoners have a general Sixth Amendment

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

4 MANGIARACINA V. PENZONE

right to be present when legal mail related to a criminal

matter is inspected. He wrote separately to clarify that

merely negligent conduct on the part of prison officials is not

sufficient to state a claim.

COUNSEL

Harry Williams IV (argued), Law Office of Harry Williams,

Seattle, Washington, for Plaintiff-Appellant.

James Kenneth Mangum (argued), Deputy County Attorney;

William G. Montgomery, County Attorney; Civil Services

Division, Maricopa County Attorney’s Office, Phoenix,

Arizona; for Defendants-Appellees.

Corene Kendrick and Donald Specter, Prison Law Office,

Berkeley, California; David M. Porter, Co-Chair, NADCL

Amicus Committee, National Association of Criminal

Defense Lawyers, Sacramento, California; for Amici Curiae

National Association of Criminal Defense Lawyers, Arizona

Attorneys for Criminal Justice, Prison Law Office, American

Civil Liberties Union, and ACLU of Arizona.

MANGIARACINA V. PENZONE 5

OPINION

PAEZ, Circuit Judge:

Nick Mangiaracina appeals the dismissal of his First and

Sixth Amendment claims arising from jail employees opening

legal mail outside his presence. We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we affirm in part, reverse

in part, and remand.

I.

At the time of the events described in the operative

complaint (the third amended complaint), Nick Mangiaracina

was incarcerated as a pre-trial detainee in Maricopa County’s

Fourth Avenue Jail in Phoenix, Arizona. The jail’s stated

policy is to open legal mail addressed to a prisoner only in the

presence of that prisoner. See Maricopa County Jails, Rules

and Regulations for Inmates § 17, at 24.1 Mangiaracina

alleged, however, that his mail was repeatedly opened

1

We take judicial notice of the Maricopa County Jails Rules and

Regulations for Inmates, as the document is “not subject to reasonable

dispute” and “can be accurately and readily determined from sources

whose accuracy cannot reasonably be questioned.” Fed. R. Evid.

201(b)(2); see United States v. Thornton, 511 F.3d 1221, 1229 n.5 (9th

Cir. 2008) (taking judicial notice of a federal Bureau of Prisons policy

statement). Relevant portions of the regulations are contained in

Appendix 1 to the Replacement Opening Brief and Exhibit 1 to the Brief

of Amici Curiae National Association of Criminal Defense Lawyers,

Arizona Attorneys for Criminal Justice, Prison Law Office, American

Civil Liberties Union, and ACLU of Arizona.

6 MANGIARACINA V. PENZONE

“outside [his] presence” in contravention of this policy.2 The

complaint included descriptions of nine specific instances of

alleged improper mail opening.

Mangiaracina alleged that in September 2011, he received

a letter from his attorney that had been “opened and taped

shut.” He further alleged that on March 23, 2012, he “mailed

a [manila] envelope that was sealed to [his] attorney. . . .”

While an officer was sorting mail later that evening,

Mangiaracina saw that his letter had been opened.

Mangiaracina was then “allowed to reseal it and it was

mailed.”

On November 9, 2012, a jail employee opened an

incoming letter from Mangiaracina’s attorney. Mangiaracina

attached the mail room’s response to his grievance regarding

the incident, which stated: “The mailroom documents any

legal mail that come[s] in torn-open or damaged. According

to our records you[r] legal mail was delivered to the 4th Ave.

Jail sealed and un-opened.” A second response from the jail

stated that during mail distribution, “it was noted that inmate

Mangiaracina’s legal mail envelope had been cut open and

stapled closed prior to it being delivered to [the Fourth

Avenue Jail]. . . . [T]he reason [it was open] was unknown”

to the employee responding to the grievance, “as it had been

delivered to [the Fourth Avenue Jail] that way for

distribution.”

2

In reviewing an order dismissing a complaint for failure to state a

claim, we accept all allegations of material facts as true, and we construe

the facts in the light most favorable to the plaintiff. Nordstrom v. Ryan,

762 F.3d 903, 908 (9th Cir. 2014).

MANGIARACINA V. PENZONE 7

Mangiaracina also described several incidents of improper

mail opening in January 2013. He alleged that two outgoing

letters to his attorneys were opened on January 9. With

respect to one of these letters, Mangiaracina explained that he

had complained to a correctional officer, who “said he knew

about it and [said] it was de[a]lt with.” Mangiaracina alleged

that a few days later, an incoming letter from an attorney was

improperly opened. On January 22, 2013, a jail employee

again “opened a letter going out to [his] attorney.”

According to the complaint, problems with the handling

of Mangiaracina’s legal mail persisted despite his repeated

complaints and grievances. He alleged that on February 27,

2013, a jail employee “opened a letter going out to” his

attorney. Finally, on March 12, 2013, a jail employee opened

an incoming letter from an attorney. Mangiaracina attached

his grievance related to the March 12 incident, which

explained that the “legal mail was opened [and] taped shut

prior to delivery to inmate,” and that it “came up in [the] mail

that way.” Mangiaracina received the same response from

the mailroom that he had received with respect to the

November 9, 2012 incident: “The mailroom documents any

legal mail that come[s] in torn-open or damaged. According

to our records you[r] legal mail was delivered to the 4th Ave.

Jail sealed and un-opened.” There was no further response

explaining whether (or why) the mail was opened at the jail

prior to delivery.

In Mangiaracina’s complaint, he further alleged that he

had “[six] pending trials in superior court[] and [one] federal

8 MANGIARACINA V. PENZONE

case pending.”3 In describing his injury resulting from the

improper opening of his legal mail, Mangiaracina alleged that

he and his two “attorneys are af[]raid to communicate by mail

which is hard as I have so many cases and so much

pap[]erwork to go back and forth.” He further explained that

his “right to confidentiality and privacy was violated” and

that his “defense strategy and [his] rights in general were just

shredded.” Mangiaracina also reported that an officer had

told him that “they can open [legal mail] outside our presence

if they want to,” that “there is no law against it,” and that

“they just do it in our presence as a [courtesy].”

3

We grant Defendants’ motion to take judicial notice of the six

criminal indictments pending against Mangiaracina in Maricopa County

Superior Court at the time of the incidents. We also grant Defendants’

motion to take judicial notice of the docket sheet in the criminal case in

the United States District Court for the District of Arizona in which

Mangiaracina was sentenced in February 2006 to seventy-eight months of

imprisonment and thirty-six months of supervised release. See U.S. ex rel.

Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248

(9th Cir. 1992) (“[W]e may take notice of proceedings in other courts,

both within and without the federal judicial system, if those proceedings

have a direct relation to matters at issue.” (internal quotation marks and

citation omitted)).

It is not clear from the record whether the federal case that

Mangiaracina referred to in his complaint was related to his prior

conviction. Defendants do not contest that Mangiaracina’s six pending

trials in Superior Court were criminal trials, nor do they contest that

Mangiaracina’s correspondence with his attorneys was related to his state

or federal criminal cases. If on remand and after discovery, it becomes

clear that some of Mangiaracina’s legal correspondence was civil in

nature, the district court can address any incidents related to civil legal

mail in light of Mangiaracina’s First Amendment claim. See Part III.B,

infra.

MANGIARACINA V. PENZONE 9

Mangiaracina initially filed suit in Arizona superior court

pursuant to 28 U.S.C. § 1983, alleging violations of his First

and Sixth Amendment rights by a number of jail employees

and John Doe defendants. Defendants removed the case to

federal court. The district court found that removal was

proper and dismissed the original complaint for failure to

state a claim, but granted Mangiaracina leave to amend.

After a series of amendments, the court ultimately dismissed

Mangiaracina’s Third Amended Complaint with prejudice.

The district court noted that Mangiaracina had failed to

specifically allege that the pieces of mail were marked as

“legal mail” and that, for most of the instances, he failed to

explain how he knew the mail was opened outside his

presence. The court acknowledged that Mangiaracina did

provide additional details for the incidents occurring in

September 2011, on March 23, 2012, and on November 9,

2012. The court concluded, however, that even assuming the

three items were properly marked as legal mail, these

“isolated incidents” did not violate Mangiaracina’s

constitutional rights. Mangiaracina timely appealed.

II.

We review de novo a district court’s dismissal of a

complaint under 28 U.S.C. § 1915A for failure to state a

claim. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).

We construe all facts in the light most favorable to the

plaintiff, and we construe a pro se complaint liberally.

Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014). “Pro

se complaints . . . may only be dismissed if it appears beyond

doubt that the plaintiff can prove no set of facts in support of

his claim which would entitle him to relief.” Id. (quotation

marks omitted).

10 MANGIARACINA V. PENZONE

III.

A.

Mangiaracina argues that the district court erred in

dismissing his Sixth Amendment claim. We reverse the

district court’s dismissal of this claim as to two counts of

illegal mail opening and affirm the dismissal of the remaining

counts.

The Supreme Court addressed the inspection of prisoners’

legal mail in Wolff v. McDonnell, 418 U.S. 539 (1974). In

Wolff, a group of prisoners challenged, inter alia, a prison

regulation that authorized correctional officers to open and

inspect all incoming mail for contraband. The regulation

included legal mail but provided that such mail was to be

inspected in the presence of the prisoner to whom it was

addressed. The plaintiffs argued that legal mail should be

exempted from the inspection requirement entirely. The

Court held that “inspection or perusal” of legal mail was

permissible. Id. at 576. In the Court’s view, the challenged

regulation could not have the effect of “chill[ing attorney-

client] communications, since the inmate’s presence insures

that prison officials will not read the mail.” Id. at 577

(emphasis added). Because the inmate’s presence adequately

protected any rights at stake, the Court did not identify the

constitutional source or scope of these rights. Id. at 575–77.

We recently addressed prisoners’ legal mail rights in

Nordstrom, 762 F.3d 903. In that case, a prisoner alleged that

he had written a letter to his criminal attorney and that a

correctional officer, instead of inspecting the letter in

Nordstrom’s presence before sealing and sending it, stood in

front of him and read the letter. We held that this event,

MANGIARACINA V. PENZONE 11

though isolated, sufficiently alleged a violation of

Nordstrom’s Sixth Amendment right to counsel. Although

the case concerned improper reading rather than improper

opening of legal mail, we noted that “the practice of requiring

an inmate to be present when his legal mail is opened is a

measure designed to prevent officials from reading the mail

in the first place.” Id. at 910 (citing Wolff, 418 U.S. at 577);

see also Keenan v. Hall, 83 F.3d 1083, 1094 (9th Cir. 1996),

amended on denial of rehearing by 135 F.3d 1318 (9th Cir.

1998) (declining to decide “whether mail clearly sent from a

lawyer to an inmate but lacking the ‘Legal Mail’ designation

may be opened outside the presence of the inmate”);

Stevenson v. Koskey, 877 F.2d 1435, 1441 (9th Cir. 1989)

(recognizing that “the relevant event for purposes of

analyzing [the defendant’s] culpability is the alleged

constitutional injury, the guard’s opening of the letter outside

[the prisoner’s] presence.”). Thus, we have recognized that

prisoners have a Sixth Amendment right to confer privately

with counsel and that the practice of opening legal mail in the

prisoner’s presence is specifically designed to protect that

right.

Other circuit courts have similarly recognized the

importance of this practice. In Jones v. Brown, 461 F.3d 353,

359 (3d Cir. 2006), the Third Circuit recognized, in the

context of a First Amendment challenge, that opening legal

mail outside the addressee’s presence

deprives the expression of confidentiality and

chills the inmates’ protected expression,

regardless of the state’s good-faith

protestations that it does not, and will not,

read the content of the communications. This

is so because the only way to ensure that mail

12 MANGIARACINA V. PENZONE

is not read when opened is to require that it be

done in the presence of the inmate to whom it

is addressed.

Id. (internal quotation marks, alteration, and citation omitted).

The Sixth Circuit has similarly acknowledged that a

“prisoner’s interest in unimpaired, confidential

communication with an attorney is an integral component of

the judicial process” and has determined that “[t]here is no

penological interest or security concern that justifies opening

such mail outside of the prisoner’s presence when the

prisoner has specifically requested otherwise.” Sallier v.

Brooks, 343 F.3d 868, 877–78 (6th Cir. 2003); see also, e.g.,

Al-Amin v. Smith, 511 F.3d 1317, 1331 (11th Cir. 2008)

(“[I]nmates have a constitutionally protected right to have

their properly marked attorney mail opened in their

presence.”). The same concerns animate Mangiaracina’s

Sixth Amendment challenge, which is predicated on the

chilling of his protected communications with criminal

attorneys. See Merriweather v. Zamora, 569 F.3d 307, 317

(6th Cir. 2009) (“[O]pening properly marked legal mail alone,

without doing more, implicates both the First and Sixth

Amendments because of the potential for a ‘chilling effect.’”

(quoting Sallier, 343 F.3d at 877)). We therefore now clarify

that, under Nordstrom, prisoners have a Sixth Amendment

right to be present when legal mail related to a criminal

matter is inspected.

B.

Mangiaracina has alleged sufficient facts to state a claim

for improper opening of his incoming legal mail on

November 9, 2012 and March 12, 2013. For each of these

incidents, Mangiaracina attached his grievance form and the

MANGIARACINA V. PENZONE 13

response he received from jail officials. For the November 9

incident, the response confirmed that the mail had been

delivered to the jail sealed but had been opened and stapled

shut prior to delivery to Mangiaracina. For the March 12

incident, Mangiaracina specifically alleged in his grievance

that the letter had been “opened [and] taped shut prior to

delivery.” The allegations in the complaint and attached

documents sufficiently allege that these two pieces of mail

were opened outside Mangiaracina’s presence. In the two

responses from the facility, jail officials characterize both

pieces of mail as “legal mail.” At the pleading stage, these

allegations are sufficient to allege that the envelopes were

properly marked as legal mail. Further, Mangiaracina alleges

that he was informed by an officer that jail employees “can

open [legal mail] outside our presence if they want to,” that

there is no law against it, and that “they just do it in our

presence as a [courtesy].” These two counts therefore

sufficiently allege violations of Mangiaracina’s right to have

his confidential, properly-marked legal mail opened in his

presence. For the remaining counts, the district court

correctly determined that Mangiaracina failed to allege that

the mail was properly marked as legal mail, so these counts

were properly dismissed.

The absence of a clear pattern beyond these two incidents

does not preclude relief. In Nordstrom, we recognized that

even a single instance of improper reading of a prisoner’s

mail can give rise to a constitutional violation. Thus, even

isolated incidents of improper mail opening may, in

appropriate circumstances, be sufficient to allege a Sixth

Amendment violation. Cf. Merriweather, 569 F.3d at 317

(6th Cir. 2009) (“Two or three pieces of [a prisoner’s legal]

mail opened in an arbitrary or capricious way suffice to state

a [First Amendment] claim.”).

14 MANGIARACINA V. PENZONE

Defendants argue that this case is distinguishable from

Nordstrom because Mangiaracina does not allege that jail

officials ever read his mail. But indeed, how could he? If the

practice of opening legal mail in the presence of the prisoner

is designed to prevent correctional officers from reading it,

then the natural corollary is that a prisoner whose mail is

opened outside his presence has no way of knowing whether

it had been (permissibly) inspected or (impermissibly) read.

In other words, Mangiaracina could not in good faith have

alleged that jail employees had read his mail, since he had no

basis for knowing what had happened to his mail prior to

delivery. See Scott Dodson, New Pleading, New Discovery,

109 Mich. L. Rev. 53, 54 (2010) (“[P]laintiffs proceeding

with claims that depend upon facts exclusively in the hands

(or minds) of defendants and third parties may find

themselves in a Catch-22: plaintiff needs those facts to plead

her claim properly and survive a ‘Twiqbal’ motion to dismiss,

but she may not be able to discover those facts without first

surviving the motion to dismiss.”).

Nordstrom presented the rare situation in which a prisoner

actually witnessed a correctional officer open and read his

legal mail. To hold that an officer could stop short of a

prisoner’s cell, open and read a letter, and then deliver it to

the prisoner without giving rise to an actionable claim would

elide the central holding of Nordstrom.

Nor do Defendants identify any legitimate penological

interest that would be served by opening legal mail outside

Mangiaracina’s presence. Jails and prisons may impose

certain restrictions on incoming mail, so long as the

restrictions are “reasonably related to legitimate penological

interests.” Turner v. Safley, 482 U.S. 78, 89 (1987); see

Thornburgh v. Abbott, 490 U.S. 401, 413–14 (1989). We

MANGIARACINA V. PENZONE 15

defer to the judgment of corrections authorities, particularly

with regard to matters of security, because we recognize that

“[r]unning a prison [or jail] is an inordinately difficult

undertaking” with which prison or jail authorities have

particular expertise. Turner, 482 U.S. at 84–85. This

deference, however, only comes into play when the facility

offers a legitimate justification for the challenged practice.

“[I]f the prison fails to show that the regulation is rationally

related to a legitimate penological objective, we do not

consider the other factors” of the Turner test. Ashker v.

California Dep’t of Corr., 350 F.3d 917, 922 (9th Cir. 2003).

Here, the stated policy of the Maricopa County Jails is to

open all legal mail in the presence of the prisoner, and

Defendants have identified no reason in their briefing for

deviating from this policy. No special deference is therefore

required. See Al-Amin, 511 F.3d at 1331 (11th Cir. 2008)

(“[O]pening an inmate’s attorney mail in his presence . . .

‘fully accommodates the prisoner’s rights at de minimis cost

to valid penological interests.’” (quoting Turner, 482 U.S. at

91)).

Nevertheless, Defendants attempt to argue on appeal that

any deviations were isolated and accidental. We have already

explained why even isolated incidents may support a Sixth

Amendment claim. See Part III.B, supra. Additionally,

whether an isolated incident was also accidental is a question

of fact that we do not resolve on a motion to dismiss. At this

stage, we accept all allegations of material fact as true and

construe them in the light most favorable to the plaintiff.

Nordstrom, 762 F.3d at 908.

As we have emphasized in the past, “[a] criminal

defendant’s ability to communicate candidly and

16 MANGIARACINA V. PENZONE

confidentially with his lawyer is essential to his defense.”

Nordstrom, 762 F.3d at 910. Mangiaracina alleged that jail

officials had repeatedly opened his legal mail and that an

officer had told him that “there is no law against” opening

legal mail before delivering it to a prisoner and “they just do

it in [the prisoner’s] presence as a courtesy.” Mangiaracina

was justifiably concerned that his attorney-client

communications would not be kept confidential. As a result,

Mangiaracina and his attorneys were “af[]raid to

communicate by mail,” which he described as “hard as I have

so many cases and so much paperwork to go back and forth.”

By necessity, prisoners and pre-trial detainees rely heavily on

the mail for communication with their attorneys. The

Maricopa County jail system does not allow incoming phone

calls or provide access to e-mail, and outgoing phone calls

can only be placed as collect calls. See Maricopa County

Jails, Rules and Regulations for Inmates § 25, at 35.

Moreover, as Mangiaracina noted in his complaint, criminal

cases often involve paperwork that can only feasibly be

transported by mail. As Mangiaracina put it, his “right to

confidentiality and privacy was violated as well as [his]

defense strategy and [his] rights in general were just

shredded.” These allegations are sufficient to state a claim

for violation of Mangiaracina’s Sixth Amendment right to

counsel.

C.

Mangiaracina also argues that the district court erred in

dismissing his First Amendment claim. In Hayes v. Idaho

Correctional Center, No. 14-35078 (9th Cir. Mar. 3, 2017),

filed concurrently with this opinion, we held that the First

Amendment protects prisoners’ right to have legal mail

opened in their presence. Accordingly, we reverse the

MANGIARACINA V. PENZONE 17

dismissal of Mangiaracina’s First Amendment claim, and we

remand to the district court for consideration of this claim in

light of Hayes, if necessary.

* * *

For the reasons set forth above, we reverse the district

court’s dismissal of Mangiaracina’s Sixth Amendment and

First Amendment claims with respect to the incidents on

November 9, 2012 and March 12, 2013. We affirm the

district court’s dismissal of the remaining counts of alleged

improper mail opening.

The judgment is AFFIRMED in part, REVERSED in

part, and REMANDED.

Each party shall bear its own costs on appeal.

BYBEE, Circuit Judge, concurring in the judgment:

I concur in the conclusion in Part III.A of the majority

opinion, that prisoners have a general Sixth Amendment right

to be present when legal mail related to a criminal matter is

inspected. I write separately because I don’t think the

majority has explained with sufficient clarity what is required

to state a Sixth Amendment claim under 42 U.S.C. § 1983.

I am deeply concerned that the majority opinion’s

characterization of Nordstrom v. Ryan, 762 F.3d 903 (9th Cir.

2014), and out-of-circuit cases which dealt with either

intentional acts or pattern-and-practice allegations, Maj. Op.

10–12, may mislead the district courts and the parties into

thinking that merely negligent conduct is sufficient to state a

18 MANGIARACINA V. PENZONE

claim under 42 U.S.C. § 1983. It is not. If it was once not

clear, it is now beyond question that § 1983 requires proof of

intentional, not merely negligent, acts depriving a party of his

constitutional rights.1

I

In Paul v. Davis, the Supreme Court rejected the notion

that § 1983 had converted “the Fourteenth Amendment [into]

a font of tort law to be superimposed upon whatever systems

may already be administered by the States.” 424 U.S. 693,

701 (1976). It was easier to say than to enforce, and the

Supreme Court had its own missteps in determining what

kind of constitutional torts § 1983 covers. In 1977, the Court

granted certiorari in Procunier v. Navarette, 434 U.S. 555

(1978), to decide whether prison officials’ negligent handling

of a prisoner’s outgoing mail could be the basis for damages

under § 1983. The Court never got there; instead, it decided

the case on the basis of qualified immunity and left to another

day the critical question of whether § 1983 covered negligent

conduct. Id. at 559 n.6 (1978). See Baker v. McCollan,

443 U.S. 137, 138 (1979) (explaining how Procunier dodged

the question). Two years later, in Parratt v. Taylor, 451 U.S.

527 (1981), the Court considered whether § 1983 was a

proper vehicle to compensate a prisoner under the Due

Process Clause for a negligent loss of his property. The Court

said that “the alleged loss, even though negligently caused,

1

Portions of this concurrence are identical to portions of my

concurrence in the companion case, Hayes v. Idaho Correctional Center,

No. 14-35078, — F.3d — (9th Cir. 2017). This case addresses the Sixth

Amendment right to be present when legal mail is inspected by prison

guards; Hayes addresses the First Amendment right to be present. The

principles are nearly the same, and my concerns are the same.

MANGIARACINA V. PENZONE 19

amounted to a deprivation” and was actionable under § 1983.

Id. at 536–37. Five years later, the Court overruled Parratt

in Daniels v. Williams, 474 U.S. 327, 330–31 (1986). This

time the Court concluded that “the Due Process Clause is

simply not implicated by a negligent act of an official causing

unintended loss of or injury to life, liberty, or property.” Id.

at 328. The Court stated that “lack of due care suggests no

more than a failure to measure up to the conduct of a

reasonable person. To hold that injury caused by such

conduct is a deprivation within the meaning of the Fourteenth

Amendment would trivialize the centuries-old principle of

due process of law.” Id. at 332. “Our Constitution,” the

Court wrote, “does not purport to supplant traditional tort law

in laying down rules of conduct to regulate liability for

injuries that attend living together in society.” Id.

Nevertheless, the Court would “not rule out the possibility

that there are other constitutional provisions that would be

violated by mere lack of care.” Id. at 334.

Notwithstanding the Court’s reservation of judgment,

Daniels’s logic has since been extended, amendment by

amendment, to other fundamental rights protected by the Bill

of Rights. And, so far as I can determine, no court has held

that a § 1983 claim can be proved by mere negligent conduct.

For example, in the First Amendment free exercise context,

negligence on the part of a government official is not enough

to show a violation of constitutional rights sufficient to state

a claim for relief under § 1983. See Gallagher v. Shelton,

587 F.3d 1063, 1070 (10th Cir. 2009) (dismissing § 1983

claim because “an isolated act of negligence would not

violate an inmate’s First Amendment right to free exercise of

religion”); Lovelace v. Lee, 472 F.3d 174, 201 (4th Cir. 2006)

(“[N]egligent acts by officials causing unintended denials of

religious rights do not violate the Free Exercise Clause.”);

20 MANGIARACINA V. PENZONE

Lewis v. Mitchell, 416 F. Supp. 2d 935, 944 (S.D. Cal. 2005)

(holding more than negligence is required to state a valid

§ 1983 claim for violation of prisoner’s First Amendment

right to freely exercise religion); Shaheed v. Winston, 885 F.

Supp. 861 (E.D. Va. 1995) (finding “defendants [sic] actions

were negligent, not intentional, and the plaintiffs may not rely

on § 1983 as a basis for this claim”), aff’d on other grounds,

161 F.3d 3 (4th Cir. 1998) (unpublished).

Similarly, in access-to-court cases, also under the First

Amendment, the circuit courts have uniformly held that

negligence is not sufficient to raise a claim under § 1983.

The Seventh Circuit, for example, has found that “a mere

isolated incident of negligence . . . does not rise to the level

of a constitutional violation actionable under section 1983.”

Kincaid v. Vail, 969 F.2d 594, 602 (7th Cir. 1992); see also

Crawford-El v. Britton, 951 F.2d 1314, 1318 (D.C. Cir. 1991)

(holding that intentional interference with access to court

violates Constitution)); Pink v. Lester, 52 F.3d 73, 76 (4th

Cir. 1995) (holding that negligent conduct in misrouting a

form does not violate the First Amendment’s right to

petition).

In the Fourth Amendment context, the Supreme Court has

held that “[v]iolation of the Fourth Amendment requires an

intentional acquisition of physical control. A seizure occurs

even when an unintended person or thing is the object of the

detention or taking, but the detention or taking itself must be

willful.” Brower v. Cty. of Inyo, 489 U.S. 593, 596 (1989)

(citations omitted). The Supreme Court found support for

this holding in the text of the Fourth Amendment, since

seizure does not imply an “unknowing act,” as well as the

history of the Fourth Amendment, which was addressed to

“‘misuse of power,’ not the accidental effects of otherwise

MANGIARACINA V. PENZONE 21

lawful government conduct.” Id. (citation omitted). The

Court elaborated:

[I]f a parked and unoccupied police car slips

its brake and pins a passerby against a wall, it

is likely that a tort has occurred, but not a

violation of the Fourth Amendment. And the

situation would not change if the passerby

happened, by lucky chance, to be a serial

murderer for whom there was an outstanding

arrest warrant—even if, at the time he was

thus pinned, he was in the process of running

away from two pursuing constables. It is

clear, in other words, that a Fourth

Amendment seizure does not occur whenever

there is a governmentally caused termination

of an individual’s freedom of movement (the

innocent passerby), nor even whenever there

is a governmentally caused and

governmentally desired termination of an

individual’s freedom of movement (the

fleeing felon), but only when there is a

governmental termination of freedom of

movement through means intentionally

applied.

Id. at 596–97. We have similarly held that to state a Fourth

Amendment claim against a government investigator for

submitting false and material information in a warrant

affidavit, “a § 1983 plaintiff must show that the investigator

‘made deliberately false statements or recklessly disregarded

the truth in the affidavit’ and that the falsifications were

‘material’ to the finding of probable cause.” Galbraith v. Cty.

22 MANGIARACINA V. PENZONE

of Santa Clara, 307 F.3d 1119, 1126 (9th Cir. 2002)

(emphasis added) (citation omitted).

In the Eighth Amendment context, the Supreme Court has

found that more then negligence is required to raise a claim

for cruel and unusual punishment. Wilson v. Seiter, 501 U.S.

294, 297 (1991); Estelle v. Gamble, 429 U.S. 97, 106 (1976).

In Estelle, the Supreme Court rejected an Eighth Amendment

claim based on inadvertent failure to provide adequate

medical care:

[A] complaint that a physician has been

negligent in diagnosing or treating a medical

condition does not state a valid claim of

medical mistreatment under the Eighth

Amendment. Medical malpractice does not

become a constitutional violation merely

because the victim is a prisoner. In order to

state a cognizable claim, a prisoner must

allege acts or omissions sufficiently harmful

to evidence deliberate indifference to serious

medical needs.

429 U.S. at 107. In Wilson, the Court added that “‘[i]t is only

such indifference’ that can violate the Eighth Amendment;

allegations of ‘inadvertent failure to provide adequate

medical care’ or of a ‘negligent . . . diagnos[is]’ simply fail to

establish the requisite culpable state of mind.” 501 U.S. at

297 (quoting Estelle, 429 U.S. at 105–06) (alteration in

original) (citations omitted).

These same considerations should inform our judgment

about the Sixth Amendment right to be present when legal

mail related to a criminal matter is inspected. There is

MANGIARACINA V. PENZONE 23

nothing about the attorney-client relationship that suggests

that merely inadvertent conduct that touches on that

relationship is a constitutional violation. The courthouse

custodian who accidentally walks in on an attorney-client

conference may “chill” their conversation, but—without

more—has done nothing actionable under § 1983. Similarly,

the mail clerk who accidentally opens legal mail, seals it up,

and notes “opened by mistake, and not read” has not violated

the Sixth Amendment, even if the prisoner-recipient is

unhappy to receive his mail in that format. If the prisoner

doubts the veracity of the mail clerk, or has seen a broad

pattern of improperly opened legal mail, the prisoner should

allege that the act is intentional or that an inference of intent

should be drawn from the pattern and practice. To fail to

recognize the importance of alleging intentional conduct

would be to risk strict liability claims under § 1983,

something no court has ever approved.

II

Applying the above principles to Mangiaracina’s claim,

Mangiaracina has alleged a “policy and practice” of illegally

opening inmates mail. He alleged at least four instances

where his legal mail was opened outside his presence and that

prison employees stated they can open legal mail outside the

prisoner’s presence “if they want to” and there is “no law

against it.” These are sufficient facts to allege a

constitutional violation at the pleading stage of the litigation

for the opening of Mangiaracina’s incoming legal mail on

November 9, 2012 and March 12, 2013.

24 MANGIARACINA V. PENZONE

A

The majority opinion focuses on whether the number of

incidents was sufficient to state a cause of action but

overlooked the question of the nature of the incidents alleged.

The opinion concludes that two incidents in four months

“sufficiently allege” violations of Mangiaracina’s Sixth

Amendment right to counsel,2 and “[t]he absence of a clear

pattern beyond these two incidents does not preclude relief.”

Maj. Op. at 13. To reach this conclusion, the opinion relies

heavily on our recent decision in Nordstrom for the

proposition that a “single instance” of improper reading of a

prisoner’s mail can give rise to a constitutional violation.

Maj. Op. at 13 (citing Nordstrom, 762 F.3d 903). However,

the single incident in Nordstrom was sufficient because it

“was not simply a one-time mistake or confusion over the

contours of the [prision] policy . . . the [prison d]irector ha[d]

personally informed [Nordstrom] that prison officials are

permitted to read his legal mail.” Nordstrom, 762 F.3d at

911–12. There, as our opinion noted, the prison officials

openly read Nordstrom’s mail in front of him and over his

protests. Id. at 906. And, the prison’s response to the

prisoner’s grievance was not that this was a mere accident or

an isolated instance of reading legal mail, but rather that its

policy permitted guards to read legal mail as long as it was

2

The majority notes Defendants have not offered “any legitimate

penological interest that would be served by” opening Mangiaracina’s

legal mail. Maj. Op. at 14. However, the test created in Turner v. Safley,

482 U.S. 78 (1987), was directed at prison regulations. Id. at 89. I am not

sure how the test even applies to inadvertent conduct. What penological

reason can the State offer if someone opened the letter by mistake? The

opinion thus strongly suggests that mistake or inadvertence is not a

legitimate penological reason. If so, Mangiaracina’s claim nearly sounds

in strict liability.

MANGIARACINA V. PENZONE 25

done in the prisoner’s presence. Id. at 907 (noting that the

prison director’s response to grievance reasoned that “[s]taff

is authorized to scan and is not prohibited from reading the

mail to establish the absence of contraband and ensure the

content of the mail is of legal subject matter” (alteration in

original)). The prison regulations, in fact, prohibited reading

outgoing attorney-client correspondence. Id. at 910–11.

Nordstrom is consistent with the principle that § 1983 covers

only intentional acts affecting constitutional rights.

The majority opinion concludes that “even isolated

incidents of improper mail opening may, in appropriate

circumstances, be sufficient to allege a Sixth Amendment

violation.” Maj. Op. at 13. The majority does not outline

what such “appropriate circumstances are,” but proceeds to

quote the holding in Merriweather v. Zamora, 569 F.3d 307,

318 (6th Cir. 2009), that “[t]wo or three pieces of [a

prisoner’s legal] mail opening in an arbitrary or capricious

way suffice to state a [Sixth] Amendment claim.” Maj. Op.

at 13 (alteration in original). I regret that the majority has

introduced an “arbitrary or capricious” standard into the

evaluation of § 1983 claims under the Sixth Amendment.

That standard is well-known in the administrative law

context, where it is prescribed by statute, 5 U.S.C.

§ 706(2)(A), but it is not a familiar standard for judging

constitutional torts. The majority borrows the phrase from

the Sixth Circuit, where it apparently originated in Parrish v.

Johnson, 800 F.2d 600 (6th Cir. 1986). See id. at 604

(“[T]his case concerns Turner’s arbitrary opening and reading

of Giles’ personal mail. . . . A capricious interference with a

prisoner’s incoming mail based upon a guard’s personal

prejudices violates the First Amendment.”). But we shouldn’t

mistake “arbitrary and capricious” conduct in this context as

something less than “intentional conduct.” The case that gave

26 MANGIARACINA V. PENZONE

us the unfortunate phrase, Parrish, involved intentional

conduct: the prisoner, who was paraplegic, “testified that [a

prison guard] would randomly open and read his personal

mail and that [the guard] would also taunt him by waving the

open mail in front of him.” Id. at 603. The court observed

that the case did not involve “a regularly applied regulation

. . . or a random interference with a prisoner’s mail.” Id. at

604. Parrish involved an allegation that the defendant had

intentionally violated the prisoner’s rights. Other Sixth

Circuit cases, which have continued to use the imprecise

“arbitrary and capricious” language, also involve allegations

of intentional or pattern-and-practice conduct. See, e.g.,

Merriweather, 569 F.3d at 317 (finding that sixteen instances

of improperly opened legal mail were sufficient to state a

cause of action); Sallier v. Brooks, 343 F.3d 868, 872, 879–80

(6th Cir. 2003) (upholding a damage award where the

prisoner could prove that officials had deliberately opened

three pieces of legal mail and the prisoner “had filed a written

request to have such mail opened only in his presence”);

Lavado v. Keohane, 992 F.2d 601, 610 (6th Cir. 1993)

(holding it was sufficient that the prisoner alleged that a

Bureau of Prisons employee had “blatant disregard for

established regulations [that gave] rise to an inference of

arbitrary or capricious action” and noting that the prisoner

had alleged that defendant “read Lavado’s properly marked

correspondence and proceeded to give Lavado his business

card so Lavado would be able to spell his name correctly

when Lavado sued”); Reneer v. Sewell, 975 F.2d 258, 259–60

(6th Cir. 1992) (“[I]f the mail was actually read, and this

action was motivated by retaliation as plaintiff alleges, such

behavior by prison officials might [be] . . . arbitrary action

. . .”). The decisions cited by the majority from other circuits

are not to the contrary. See, e.g., Al-Amin v. Smith, 511 F.3d

1317, 1334 (11th Cir. 2008) (finding prisoner alleged “pattern

MANGIARACINA V. PENZONE 27

and practice of opening . . . clearly marked attorney mail”);

Jones v. Brown, 461 F.3d 353, 359–60 (3d Cir. 2006) (noting

prison policy required officials to open all mail outside the

presence of prisoners in order to screen for anthrax and “[a]

state pattern and practice, or, as is the case here, explicit

policy, of opening legal mail outside the presence of the

addressee inmate” violates constitutional rights); Davis v.

Goord, 320 F.3d 346, 351 (2d Cir. 2003) (“[A]n isolated

incident of mail tampering is usually insufficient to establish

a constitutional violation. Rather, the inmate must show that

prison officials ‘regularly and unjustifiably interfered with the

incoming legal mail.’” (citations omitted)).

I wish the majority had simply stated the obvious for the

benefit of the parties and the district court: in order to

survive a motion to dismiss—much less prevail on the

merits—the plaintiff must allege some kind of deliberate

action on the part of prison officials. An allegation that

prison officials opened a prisoner’s legal mail, without an

allegation that the mail was deliberately and not negligently

opened, is not sufficient to state a cause of action under

§ 1983.

B

The opinion concludes that Mangiaracina has alleged

sufficient facts to state a claim for two instances of improper

legal mail opening (November 9, 2012 and March 12, 2013).

In both instances, the prison responded to Mangiaracina’s

grievance by noting the mail had been delivered from the off-

site mail room to the Fourth Avenue Jail, where he was

housed, “sealed and un-opened.” Mangiaracina alleges that

sometime between delivery to the jail and delivery to

Mangiaracina’s pod, the mail was improperly opened “in the

28 MANGIARACINA V. PENZONE

jail somewhere mail does not get opened.” The prison could

not provide a reason it was opened.

These allegations, by themselves, are not sufficient to

state a cause of action under § 1983. In the end, however, I

join the majority in concluding that Mangiaracina has said

enough at this stage of the proceedings to allege a

constitutional tort. As the majority explains, Mangiaracina

also pled that his legal mail continually gets opened and, in

response to his grievance, an officer told him “they can open

[legal mail] outside [a prisoner’s] presence if they want to.”

The officer said “there is no law against it[,] they just do it in

[the prisoner’s] presence as a courtesy.” The official’s

statements indicate the conduct was “not simply a one-time

mistake or confusion over the contours of the [Maricopa]

policy.” Nordstrom, 762 F.3d at 911. Although Maricopa

County Jails rules and regulations comply with the

requirements of today’s holding, Maj. Op. at 5, that written

policy alone is insufficient if prison staff are intentionally

ignoring that policy since it is just “a courtesy” and not the

“law.” Showing a “blatant disregard for established

regulations” is sufficient to raise an inference of intentional

conduct to survive a motion to dismiss. Lavado, 922 F.2d at

611.

At this stage in the litigation, we must accept all

allegations of material fact as true and construe them in the

light most favorable to the plaintiff. Nordstrom, 762 F.3d at

908. Construing Mangiaracina’s pro se complaint liberally,

I conclude that Mangiaracina has sufficiently claimed that

someone is intentionally, rather than merely accidentally,

MANGIARACINA V. PENZONE 29

opening his legal mail in violation of his Sixth Amendment

rights. He may or may not be able to prove his claim, but he

has said just enough to get the opportunity.

On that basis, I concur in the judgment.