Michael Hayes v. Idaho Correctional Center

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL T. HAYES, No. 14-35078

Plaintiff-Appellant,

D.C. No.

v. 1:12-cv-00351-EJL

IDAHO CORRECTIONAL CENTER;

IDAHO DEPARTMENT OF OPINION

CORRECTIONS; SHANNON

CLUNEY; LISA BURKE; JANE

DOES, 1–3,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Idaho

Edward J. Lodge, 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, United States District Judge for the

Northern District of California, sitting by designation.

2 HAYES V. IDAHO CORRECTIONAL CENTER

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 Amendment

claims arising from prison officials opening his legal mail

outside his presence.

The panel held that prisoners have a protected First

Amendment interest in having properly marked legal mail

opened only in their presence. The panel further held that a

plaintiff need not allege a longstanding practice of violating

his First Amendment rights in order to state a claim for relief

on a direct liability theory, nor does a plaintiff need to show

any actual injury beyond the free speech violation itself to

state a constitutional violation.

The panel held that the district court properly dismissed

two other counts of alleged improper mail opening because

plaintiff had not met his burden of plausibly alleging that the

item opened outside his presence was legal mail, and because

mail from the United States courts is not legal mail.

The panel held that plaintiff waived any challenge to the

dismissal of his policy-based claims by failing to discuss the

claims in his opening brief.

**

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

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

HAYES V. IDAHO CORRECTIONAL CENTER 3

Concurring in the judgment, Judge Bybee agreed with the

conclusion that prisoners have a general First Amendment

right to be present when legal mail related to a civil 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.

Jacob H. Naylor (argued) and Kirtlan G. Naylor, Naylor &

Hales P.C., Boise, Idaho, for Defendants-Appellants Idaho

Correctional Center and Lisa Burke.

Leslie M. Hayes (argued), Deputy Attorney General; Steven

L. Olsen, Chief of Civil Litigation; Lawrence G. Wasden,

Attorney General; Office of the Attorney General, Boise,

Idaho; for Defendants-Appellees Idaho Department of

Corrections and Shannon Cluney.

4 HAYES V. IDAHO CORRECTIONAL CENTER

OPINION

PAEZ, Circuit Judge:

Michael T. Hayes appeals the dismissal of his First

Amendment challenge to prison officials opening his legal

mail outside his presence. Hayes’s complaint alleged four

instances of prison employees delivering legal mail addressed

to Hayes that had been opened before delivery. The

complaint also alleged that the prison and prison officials

maintained a policy or custom of ignoring the improper

handling of legal mail. The district court dismissed the

complaint at the pre-screening stage pursuant to 28 U.S.C.

§ 1915A. On appeal, Hayes argues that the district court

erred in dismissing his First Amendment claims against

Defendant Lisa Burke, a mail room supervisor, and his

policy-based claims against Defendants Shannon Cluney,

Idaho Department of Corrections (“IDOC”), and Idaho

Correctional Center (“ICC”). See Monell v. Dep’t of Soc.

Servs., 436 U.S. 658 (1978). We have jurisdiction under

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

remand.

I.

At all times relevant to this appeal, Hayes was housed at

ICC, a privately run IDOC facility. Hayes alleges in his

Second Amended Complaint, the operative complaint, that

ICC mail room staff illegally opens inmates’ legal mail,

“especially inmates who are charged with sex offences [sic].”

HAYES V. IDAHO CORRECTIONAL CENTER 5

He alleges that Defendant Burke improperly opened Hayes’s

legal mail outside his presence on four occasions.1

On December 28, 2010, Hayes received a piece of mail

that had already been opened. The envelope was “clearly

marked as attorneys at law,” and the complaint identified the

law firm that had sent the mail. Hayes filed a grievance

regarding this incident, and the prison responded that “there

was a piece of tape on the envelope but [prison officials]

could not tell if it were [sic] sent through the mail this way or

opened by mistake here or at another location.”2

On March 2, 2011,3 Hayes received another piece of legal

mail that had been opened before he received it. Hayes filed

a grievance related to this incident, and the prison’s response

stated: “This piece of mail was opened in error and not read.”

Hayes alleges that on June 2, 2011, another piece of “mail

that was clearly marked as legal mail” was opened outside his

presence. His complaint alleged that “this legal mail was sent

. . . through the prison’s regular mail systems” and “not

through case managers or correctional counselors who always

usually deliver legal mail to inmates.” The prison’s response

to his grievance indicated that “[t]he item [prison staff]

1

We accept as true all allegations of material facts in the Second

Amended Complaint, and we construe the facts in the light most favorable

to the plaintiff. Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014).

2

Hayes attached the grievances he filed, as well as the facility’s

responses, to the Second Amended Complaint.

3

The grievance form indicates that the incident actually took place on

March 1, 2011.

6 HAYES V. IDAHO CORRECTIONAL CENTER

opened on June 2 was not from an attorney or from the

courts, therefore it is not legal mail per [our] policy.”

Finally, on June 13, 2011, “legal mail was once again

delivered to” Hayes which had been “opened before it was

delivered.” Hayes attached a grievance form related to this

incident. The response from the facility indicated that “[t]he

item received on June 13 was from the US Courts and logged

opened in error. This issue has been discussed with staff.”

The complaint identified Hayes’s cell mates at the time of

the incidents as eyewitnesses, and Hayes attached a

supporting affidavit from Robert Lavin, his cell mate during

two of the incidents. Hayes also alleged that “a lot of

correspondence that qualified as constitutionally protected

legal mail [had been] illegally opened by ICC mail room

staff.” Hayes explained that Defendant Cluney, the Deputy

Warden of Virtual Prisons at IDOC, “has not stopped his

subordinates from creating a ‘policy or custom’” of illegally

opening legal mail. Hayes described this policy as

“longstanding pervasive and well documented.” He also

identified five attorneys who had sent mail to Hayes that had

been illegally opened over the years. Hayes did not allege

that any of the legal mail that had been opened was related to

a criminal matter; rather, the mail appears to have been

related to civil matters.

On September 13, 2011, Hayes filed a complaint pursuant

to 28 U.S.C. § 1983 in Idaho state court. Defendants

removed the case to federal court. In its initial review order,

the district court dismissed Hayes’s complaint with leave to

amend. The court found that three of the claims of illegal

mail opening had deficiencies that Hayes could attempt to

cure in an amended complaint, and that the remaining

HAYES V. IDAHO CORRECTIONAL CENTER 7

incident (on March 2, 2011) “appear[ed] to be an isolated

incident” insufficient to state a constitutional claim. After

Hayes filed a Second Amended Complaint,4 the district court

dismissed the complaint with prejudice. The court explained

that the complaint did not identify the sender of the June 2,

2011 or June 13, 2011 mail, and the grievance response for

the June 13, 2011 mail indicated that it was from the United

States courts rather than from an attorney. With respect to

the December 28, 2010 incident and the March 2, 2011

incident, the court found that Hayes had pled sufficient facts

to allege improper mail opening but that these were isolated

incidents insufficient to state a constitutional claim against

Defendant Burke. The court also dismissed Hayes’s Monell

policy or custom claims against Defendants Cluney, IDOC,

and ICC because Hayes had simply repeated the claims set

forth in the original complaint, which the court had dismissed

as insufficient in its initial review order. Hayes timely

appealed.

II.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and

we review de novo a district court’s dismissal for failure to

state a claim under 28 U.S.C. § 1915A. Resnick v. Hayes,

213 F.3d 443, 447 (9th Cir. 2000). “Pro se complaints are

construed liberally and 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.”

4

Hayes filed a first amended complaint that was virtually identical to

the original complaint, but he subsequently sought leave to file a second

amended complaint, which the district court granted. The court never

formally reviewed the first amended complaint.

8 HAYES V. IDAHO CORRECTIONAL CENTER

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

(internal quotation marks omitted).

III.

A.

Hayes argues that the First Amendment protects his right

to be present when his civil legal mail is opened. We agree.

In Wolff v. McDonnell, 418 U.S. 539 (1974), the Supreme

Court addressed a challenge to a rule that allowed prison

guards to open all legal mail, but only in the presence of the

prisoner to whom the mail was addressed. The Court held

that the rule was permissible because “the inmate’s presence

insures that prison officials will not read the mail,” and

therefore would not “chill [attorney-client] communications.”

Id. at 577 (emphasis added). The Court noted, however, that

“the constitutional status of the rights asserted . . . is far from

clear,” id. at 575, and the Court did not define the source or

scope of these rights since it concluded that the inmate’s

presence adequately protected any rights at stake. After

Wolff, the Supreme Court clarified that a regulation that

burdens prisoners’ constitutional rights is “valid if it is

reasonably related to legitimate penological interests.”

Turner v. Safley, 482 U.S. 78, 89 (1987). In Thornburgh v.

Abbott, 490 U.S. 401, 413–14 (1989), the Court explained

that the Turner test applies to restrictions on incoming mail

to prisoners.

In Nordstrom v. Ryan, we recently held that a single

instance of a guard reading a prisoner’s mail was sufficient

to establish a violation of the Sixth Amendment right to

HAYES V. IDAHO CORRECTIONAL CENTER 9

counsel.5 762 F.3d 903. We recognized that Nordstrom’s

allegation “that his right to privately confer with counsel has

been chilled” represented “a plausible consequence of the

intentional reading of his confidential legal mail.” Id. at 911;

see also Casey v. Lewis, 43 F.3d 1261, 1269 (9th Cir. 1994)

(noting in the context of an access-to-courts claim that “legal

mail may not be read nor copied without the permission of

the inmate”), rev’d on other grounds, 518 U.S. 343 (1996).

In Mangiaracina v. Arpaio, No. 14-15271 (9th Cir. Mar. 3,

2017), filed concurrently with this opinion, we held that the

Sixth Amendment, in addition to prohibiting guards from

reading prisoner legal mail, also protects the right of a

prisoner to be present while legal mail relating to criminal

proceedings is opened.

In both Nordstrom and Mangiaracina, we declined to

analyze the plaintiffs’ claims under any constitutional

provisions besides the Sixth Amendment, since the claims

related to correspondence about criminal matters and

therefore fell squarely within the scope of that Amendment.

5

We previously addressed prisoners’ legal mail rights in Keenan v.

Hall, 83 F.3d 1083, 1094 (9th Cir. 1996), amended on denial of reh’g by

135 F.3d 1318 (9th Cir. 1998), in which we held that mail from a court

rather than a lawyer did not qualify as protected legal mail. We did not

address prisoners’ rights with respect to clearly marked legal mail from a

lawyer, and we explicitly declined 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.” Id. In Stevenson v.

Koskey, 877 F.2d 1435, 1441 (9th Cir. 1989), a probation officer visiting

a prisoner handed a piece of legal mail to a guard, who then opened the

mail outside the prisoner’s presence. We recognized 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” but concluded that the named defendant—the

probation officer—could not be held liable.

10 HAYES V. IDAHO CORRECTIONAL CENTER

Mangiaracina, __ F.3d at __; Nordstrom, 762 F.3d at 909.

We recognized in Nordstrom, however, that other courts have

“analyzed claims regarding the confidentiality of attorney-

inmate communications under various constitutional

principles, including the First Amendment right to freedom

of speech and the Fourteenth Amendment rights to due

process and access to the courts, or some combination of

these rights.” 762 F.3d at 909.6

The Supreme Court has recognized that prisoner

correspondence at least implicates First Amendment rights.

In Procunier v. Martinez, 416 U.S. 396, 408 (1974),

overruled on other grounds by Thornburgh, 490 U.S. 401, the

Court held that censorship of correspondence between

inmates and those outside of prison impermissibly burdened

the First Amendment free speech rights of the non-prisoners,

regardless of whether the inmates’ rights were implicated.

Later, in Turner, 482 U.S. at 84–91, the Court recognized that

a statewide rule barring prisoner-to-prisoner correspondence

across penal institutions implicated prisoners’ First

Amendment rights. We have also recognized the First

Amendment rights of prisoners to “send and receive mail,”

Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995), though

we have not yet addressed prisoners’ First Amendment right

to have legal mail opened in their presence.

Relying in part on Procunier and Turner, several of our

sister circuits have held that opening legal mail outside the

presence of the addressee inmate burdens First Amendment

6

Because Hayes argued only that his confidential attorney-client

communications are protected by the First Amendment, we do not address

whether additional constitutional provisions also protect these

communications.

HAYES V. IDAHO CORRECTIONAL CENTER 11

rights. The Third Circuit has reasoned that a state policy or

custom of

opening legal mail outside the presence of the

addressee inmate interferes with protected

communications, strips those protected

communications of their confidentiality, and

accordingly impinges upon the inmate’s right

to freedom of speech. The practice 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 is not read when

opened is to require that it be done in the

presence of the inmate to whom it is

addressed.

Jones v. Brown, 461 F.3d 353, 359 (3d Cir. 2006) (internal

quotation marks and alterations omitted). The Eleventh

Circuit has observed that “given their incarceration and often

distance from their attorneys, prisoners’ use of the mail to

communicate with their attorneys about their criminal cases

may frequently be a more important free speech right than the

use of their tongues.” Al-Amin v. Smith, 511 F.3d 1317,

1333–34 (11th Cir. 2008). In addition to the Third and

Eleventh Circuits, the Second, Sixth, and Tenth Circuits have

recognized that the opening of legal mail outside of a

prisoner’s presence implicates First Amendment rights. See

Merriweather v. Zamora, 569 F.3d 307, 317 (6th Cir. 2009)

(“[W]e have held that improperly opening a prisoner’s mail

does implicate at least the First Amendment.”); Davis v.

Goord, 320 F.3d 346, 351 (2d Cir. 2003) (explaining that “a

12 HAYES V. IDAHO CORRECTIONAL CENTER

prisoner’s right to the free flow of incoming and outgoing

mail is protected by the First Amendment” and that “a

prisoner has a right to be present when his legal mail is

opened,” but noting that “an isolated incident of mail

tampering is usually insufficient to establish a constitutional

violation”); Ramos v. Lamm, 639 F.2d 559, 582 (10th Cir.

1980) (holding that, at least where the prison offered no

justification for opening prisoners’ mail to attorneys outside

their presence, this practice was “invalid under the First and

Fourteenth Amendments”), abrogated in part on other

grounds by Thornburgh, 490 U.S. 401.

The reasoning of these decisions by our sister circuits is

persuasive. When a prisoner receives confidential legal mail

that has been opened and re-sealed, he may understandably be

wary of engaging in future communication about privileged

legal matters. Moreover, prisoners’ communications with

civil attorneys often relate to lawsuits challenging the

conditions of confinement in the prison or wrongful conduct

of prison employees. When prison officials open legal mail,

prisoners may justifiably be concerned about retaliation from

the very officers the prisoner has accused of wrongdoing.

Prisoners may also worry that the contents of the letters could

be passed along to the facility’s lawyers, who would learn of

the prisoner’s legal strategy. See Gomez v. Vernon, 255 F.3d

1118, 1123–24 (9th Cir. 2001).

To make matters worse, prisoners’ avenues of

confidential communication with attorneys are limited. In

Idaho, the current policy on telephones and electronic

communications provides that “[a]ttorney communications

using email, digital photograph, and video messaging are not

HAYES V. IDAHO CORRECTIONAL CENTER 13

privileged, are archived and may be reviewed.”7 Idaho

Department of Corrections Standard Operating Procedure,

Telephones and Electronic Communications:

Inmate, Control No. 503.02.01.001, available at

https://www.idoc.idaho.gov/content/policy/3743, at 7.

“Voice messages left by an attorney for an offender are not

privileged and are recorded and can be monitored.” Id. at 6.

Beyond these regulatory barriers, legal representation is by

nature a document-heavy enterprise, and the contents of

documents cannot always be communicated by phone and

should not always be communicated in a non-privileged

email. In addition, some prisoners are represented by counsel

from a different part of the state or from out of state, making

in-person visits costly and time consuming. Hayes, for

example, was incarcerated in Boise but was represented in

this appeal by a Seattle-based attorney. These factors, present

in Idaho and elsewhere, highlight the immense

undertaking—for both attorney and client—of litigating from

prison, and the importance of confidential legal mail in

making that undertaking feasible.

As we have previously observed, “[i]t takes no stretch of

imagination to see how an inmate would be reluctant to

confide in his lawyer about the facts of the crime, perhaps

other crimes, possible plea bargains, and the intimate details

of his own life and his family members’ lives, if he knows

that a guard is going to be privy to them, too.” Nordstrom,

7

We take judicial notice of the IDOC’s Standard Operating

Procedure, as it 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).

14 HAYES V. IDAHO CORRECTIONAL CENTER

762 F.3d at 910. Because “the only way to ensure that mail

is not read when opened is to require that it be done in the

presence of the inmate to whom it is addressed,” Jones,

461 F.3d at 359 (quoting Bieregu v. Reno, 59 F.3d 1445, 1456

(3d Cir. 1995)), a prisoner who receives legal mail that has

been opened and re-sealed may be justifiably concerned about

the confidentiality of his communications. We therefore

agree with the conclusion of the Sixth Circuit that “[t]wo or

three pieces of mail opened in an arbitrary or capricious way

suffice to state a claim.” Merriweather, 569 F.3d at 318.

In sum, we recognize that prisoners have a protected First

Amendment interest in having properly marked legal mail

opened only in their presence.

B.

We turn to whether Hayes alleged facts sufficient to state

a First Amendment claim. We hold that he has.

The district court properly dismissed two counts of

alleged improper mail opening. For the incident that Hayes

alleged occurred on June 2, 2011, the response from the

facility indicated that the item was not legal mail. In his

Second Amended Complaint, Hayes did not clarify who sent

the mail or whether it was properly marked as “legal mail.”

The district court therefore properly concluded that Hayes

had not met his burden of plausibly alleging that the item

opened outside his presence was protected legal mail. See

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The

district court also properly dismissed Hayes’s claim with

respect to the June 13, 2011 incident because the grievance

response indicates that the mail was from the United States

courts. “Mail from the courts, as contrasted to mail from a

HAYES V. IDAHO CORRECTIONAL CENTER 15

prisoner’s lawyer, is not legal mail.” Keenan v. Hall, 83 F.3d

1083, 1094 (9th Cir. 1996). Accordingly, the First

Amendment does not prohibit opening such mail outside the

recipient’s presence.

The other two instances alleged by Hayes, however, do

state a First Amendment claim. With respect to the mail that

Hayes received on December 28, 2010, Hayes alleged that the

sender was a law firm. The facility’s response to Hayes’s

grievance regarding the incident acknowledged that “there

was a piece of tape on the envelope” but stated that prison

officials “could not tell if it were [sic] sent through the mail

this way or opened by mistake here or at another location.”

Hayes both identified the sender of the mail and plausibly

alleged that it had been opened by a prison official outside his

presence.

With respect to the mail that Hayes received on March 2,

2011, he similarly alleged that his legal mail had been opened

outside his presence. The facility’s response to his grievance

stated: “This piece of mail was opened in error and not read.”

Prison officials then confirmed that they had opened the piece

of legal mail that Hayes received on March 2, 2011 outside

his presence.

The district court held that because the December 28,

2010 incident and the March 2, 2011 incident were isolated

interferences with Hayes’s mail, Hayes could not proceed on

his First Amendment claim against Defendant Burke. But a

plaintiff need not allege a longstanding practice of violating

his First Amendment rights in order to state a claim for relief

on a direct liability theory. In Sallier v. Brooks, 343 F.3d

868, 879 (6th Cir. 2003), the Sixth Circuit upheld a jury’s

award of punitive and compensatory damages against two

16 HAYES V. IDAHO CORRECTIONAL CENTER

prison mail room clerks for three counts of improper mail

opening where, in all three instances, “the defendants listed

the letters on the legal mail log as legal mail” and “simply

failed to follow established procedures requiring [the

plaintiff’s] presence before the letters were opened.” The

court held that “[s]uch a failure, after recognition of the

letters as protected legal mail, is objectively unreasonable.”

Id. at 880. Later, in Merriweather, 569 F.3d at 317, the Sixth

Circuit concluded that “[t]he defendants’ admission that

[prison] employees improperly opened four pieces of legal

mail is . . . enough alone to state a claim” (footnote omitted).

Defendants argue that Hayes has failed to allege anything

beyond negligence. As noted above, however, Hayes has

alleged that ICC mailroom staff illegally opened inmates’

legal mail, “especially inmates who are charged with sex

offences [sic].” While Hayes does not allege that he was

convicted of a sex offense, we take judicial notice of the

fact that he was convicted of “lewd and lascivious

conduct” with a “minor under 16.”8 IDOC Offender Search

Details, Idaho Dep’t of Corrections (Nov. 10, 2016),

available at https://www.idoc.idaho.gov/content/prisons/

offender_search/detail/20633. Reading Hayes’s pro se

complaint generously, as we must, we therefore conclude

that Hayes has alleged a plausible claim that his protected

mail was arbitrarily or capriciously opened outside his

presence on two separate occasions. Nothing further is

required.

8

We take judicial notice of the IDOC’s Offender Database, as it 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).

HAYES V. IDAHO CORRECTIONAL CENTER 17

Nor is Hayes required to “show any actual injury beyond

the free speech violation itself to state a constitutional claim.”

Al-Amin, 511 F.3 at 1333.9 Rather, the injury that Hayes

alleges is “that his right to privately confer with counsel has

been chilled.” Nordstrom, 762 F.3d at 911. This injury is

sufficient to state a First Amendment claim. See Laird v.

Tatum, 408 U.S. 1, 11 (1972) (explaining that “constitutional

violations may arise from the deterrent, or ‘chilling,’ effect of

governmental [actions] that fall short of a direct prohibition

against the exercise of First Amendment rights,” where “the

challenged exercise of governmental power was regulatory,

proscriptive, or compulsory in nature, and the complainant

was either presently or prospectively subject to the

regulations, proscriptions, or compulsions that he was

challenging.”); cf. Hines v. Gomez, 108 F.3d 265, 269 (9th

Cir. 1997) (holding, in the context of a First Amendment

retaliation claim, that “the injury asserted is the retaliatory

accusation’s chilling effect on Hines’ First Amendment

rights. . . . Hines’ failure to demonstrate a more substantial

injury does not nullify his retaliation claim.”).

Finally, we recognize that the fact that a prison’s actions

“burden[] prisoners’ First Amendment rights does not,

however, tell us whether the policy [or practice] is

9

In Lewis v. Casey, 518 U.S. 343 (1996), the Supreme Court held that

a group of prisoners challenging the adequacy of prison law libraries were

required to show actual injury in order to mount a successful access-to-

courts challenge. Both the Third and the Eleventh Circuits have held that

“the actual injury requirement applies to access-to-courts claims but not

to free speech claims.” Al-Amin v. Smith, 511 F.3d 1317, 1341 (11th Cir.

2008); see Jones v. Brown, 461 F.3d 353, 359 (3d Cir. 2006) (“We reject

the argument . . . that the Supreme Court’s decision in Lewis v. Casey . .

. require[s] that the plaintiffs prove some injury-in-fact beyond the

infringement of constitutionally protected speech.”).

18 HAYES V. IDAHO CORRECTIONAL CENTER

constitutional. Prisoners necessarily sacrifice many of the

constitutional rights available to non-incarcerated citizens.”

Jones, 461 F.3d at 360. Instead, “[t]he relevant question, as

articulated by the Supreme Court in Turner, is whether the

legal mail policy is ‘reasonably related to legitimate

penological interests.’” Id. (quoting Turner, 482 U.S. at 89).

Here, Defendants have not yet had the opportunity in district

court to present evidence of a legitimate penological reason

for opening Hayes’s mail outside his presence.

Thus, we conclude that Hayes has stated a First

Amendment claim on the facts alleged, and the district court

erred in dismissing this claim at the pre-screening stage. See

Merriweather, 569 F.3d at 318. On remand, Defendant Burke

may offer a legitimate penological reason for opening

Hayes’s legal mail at either summary judgment or trial.

IV.

Finally, Hayes waived any challenge to the dismissal of

his policy-based claims. See Monell, 436 U.S. 658. We “will

not ordinarily consider matters on appeal that are not

specifically and distinctly raised and argued in appellant’s

opening brief.” Officers for Justice v. Civil Serv. Comm’n of

City & Cty. of San Francisco, 979 F.2d 721, 726 (9th Cir.

1992) (citation omitted). Hayes’s opening brief does not

discuss his Monell policy or custom claims against

Defendants Cluney, IDOC, and ICC, nor does it cite any

authority related to these claims. We therefore decline to

address Hayes’s argument, raised for the first time in his

reply brief, that the district court erred in dismissing his

policy-based claims.

* * *

HAYES V. IDAHO CORRECTIONAL CENTER 19

For the reasons set forth above, we reverse the district

court’s dismissal of Hayes’s First Amendment claim against

Defendant Burke and affirm the dismissal of the policy-based

claims against the remaining defendants.

The judgment is AFFIRMED in part, REVERSED in

part, and REMANDED.

The parties shall bear their 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 First Amendment right

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

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

majority has explained with sufficient clarity what is required

to state a First 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.

8–9, 10–16, may mislead the district courts and the parties

into thinking that merely negligent conduct is sufficient to

state a 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

1

Portions of this concurrence are identical to portions of my

concurrence in the companion case, Mangiaracina v. Apraio, No. 14-

15271, — F.3d — (9th Cir. 2017). This case addresses the First

20 HAYES V. IDAHO CORRECTIONAL CENTER

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. 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,

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

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

guards; Mangiaracina addresses the Sixth Amendment right to be present.

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

HAYES V. IDAHO CORRECTIONAL CENTER 21

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.”);

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).

22 HAYES V. IDAHO CORRECTIONAL CENTER

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

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

HAYES V. IDAHO CORRECTIONAL CENTER 23

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.

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:

24 HAYES V. IDAHO CORRECTIONAL CENTER

[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 First Amendment right to be present when legal

mail related to a civil matter is inspected. There is 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 First

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

HAYES V. IDAHO CORRECTIONAL CENTER 25

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 Hayes’s claim, Hayes

has alleged a “policy and practice” of illegally opening

inmates’ mail—particularly “inmates who are charged with

sex offenses.” These are sufficient facts to allege a

constitutional violation at the pleading stage of the litigation,

even though the State has offered an account of the opening

of Hayes’s incoming legal mail on December 28, 2010 and

March 2, 2011 that calls his allegations into question.

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 two months

“state[] a First Amendment claim on the facts alleged.”2 Maj.

Op. at 18. To reach this conclusion, the opinion relies heavily

2

On remand, the majority will allow the State to offer a “legitimate

penological reason” for opening Hayes’s legal mail. Maj. Op. at 18.

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, Hayes’s claim nearly sounds in strict liability.

26 HAYES V. IDAHO CORRECTIONAL CENTER

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 8–9

(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 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 later concludes that “[t]wo or three

pieces of mail opened in an arbitrary or capricious way

suffice to state a claim.” Maj. Op. at 14 (alteration in

original) (quoting Merriweather v. Zamora, 569 F.3d 307,

318 (6th Cir. 2009)). I regret that the majority has introduced

an “arbitrary or capricious” standard into the evaluation of

§ 1983 claims under the First 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

HAYES V. IDAHO CORRECTIONAL CENTER 27

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 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

28 HAYES V. IDAHO CORRECTIONAL CENTER

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 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.

HAYES V. IDAHO CORRECTIONAL CENTER 29

B

The opinion concludes that Hayes has alleged sufficient

facts to state a claim for two instances of improper legal mail

opening (December 28, 2010 and March 2, 2011). With

respect to the December incident, Hayes alleged he received

“legal mail . . . which had already been opened.” The

prison’s response to the grievance he filed includes

information gathered from various employees in the prison.

The opinion notes that Case Manager Fink stated that “there

was a piece of tape on the envelope but [prison officials]

could not tell if it were [sic] sent through the mail this way or

opened by mistake here or at another location.” Maj. Op. at

5 (citation omitted). The opinion leaves out the other parts of

the prison’s response, which note that the staff member in

charge initially responded “[w]e would have marked opened

in error if we had opened it” and the “mail room supervisor

. . . indicated they did not open the offenders [sic] legal mail

and if this would have occurred they would have indicated

this on the envelope.” In the second incident, the prison

admitted that Hayes’s mail was opened in error. The prison

also said that the mail was not read.

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 Hayes has said enough at

this stage of the proceedings to allege a constitutional tort.

As the majority explains, Hayes pled that Defendant Cluney,

the Deputy Warden of Virtual Prisons at the Idaho

Department of Correction (IDOC), “has not stopped his

subordinates from creating a ‘policy or custom’” of “illegally

opening inmates clearly marked legal mail outside the

presence of the inmate,” and that mail room supervisor Lisa

Burke “continues to implement these ‘illegal’ policies and

30 HAYES V. IDAHO CORRECTIONAL CENTER

customs.” Hayes also states in his filings that this practice

is particularly prevalent for “inmates who are charged

with sex offenses.” Although IDOC’s official policy

complies with the requirements of today’s holding,

outling that for incoming legal mail, “[a] unit staff

member will open and inspect the envelope in the presence

of the inmate but will not read it,” Idaho Dep’t. of

Corr., Standard Operating Procedure, Mail Handling in

Correctional Facilities, Control Number 402.02.01.011,

https://www.idoc.idaho.gov/content/policy/588, at 9, 12, that

written policy alone is insufficient if prison staff are

intentionally violating that policy for sex offenders. 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 Hayes’s pro se complaint liberally, I

conclude that Hayes has sufficiently claimed that someone is

intentionally, rather than merely accidentally, opening his

legal mail in violation of his First 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.