and Submitted June 6, 2016 Seattle, Washington
from the United States District Court for the District of
Arizona, D.C. No. 2:13-cv-00709-NVW-SPL Neil V. Wake,
District Judge, Presiding
Williams IV (argued), Law Office of Harry Williams, Seattle,
Washington, for Plaintiff-Appellant.
Kenneth Mangum (argued), Deputy County Attorney; William G.
Montgomery, County Attorney; Civil Services Division,
Maricopa County Attorney's Office, Phoenix, Arizona; for
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.
Before: Richard A. Paez and Jay S. Bybee, Circuit Judges and
Jon S. Tigar, [*] District Judge.
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
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
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
in the judgment, Judge Bybee agreed with the conclusion that
prisoners have a general Sixth Amendment 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
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.
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. Mangiaracina alleged, however, that his
mail was repeatedly opened "outside [his] presence"
in contravention of this policy. The complaint included
descriptions of nine specific instances of alleged improper
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
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."
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]
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
Mangiaracina's complaint, he further alleged that he had
"[six] pending trials in superior court and [one]
federal case pending." In describing his injury
resulting from the improper opening of his legal mail,
Mangiaracina alleged that he and his two "attorneys are
afraid to communicate by mail which is hard as I have so
many cases and so much paperwork 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]."
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
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 ...