Michael T. Hayes, Plaintiff-Appellant,
Idaho Correctional Center; Idaho Department of Corrections; Shannon Cluney; Lisa Burke; Jane Does, 1-3, Defendants-Appellees.
and Submitted June 6, 2016 Seattle, Washington
from the United States District Court for the District of
Idaho, D.C. No. 1:12-cv-00351-EJL Edward J. Lodge, District
Williams IV (argued), Law Office of Harry Williams, Seattle,
Washington, for Plaintiff-Appellant.
H. Naylor (argued) and Kirtlan G. Naylor, Naylor & Hales
P.C., Boise, Idaho, for Defendants-Appellants Idaho
Correctional Center and Lisa Burke.
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
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
Amendment claims arising from prison officials opening his
legal mail outside his presence.
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.
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.
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.
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
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.
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]." He alleges that Defendant Burke
improperly opened Hayes's legal mail outside his presence
on four occasions.
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
March 2, 2011,  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."
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] opened on June
2 was not from an attorney or from the courts, therefore it
is not legal mail per [our] policy."
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 U.S. Courts
and logged opened in error. This issue has been discussed
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
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 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,  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.
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." Nordstrom v. Ryan, 762 F.3d 903,
908 (9th Cir. 2014) (internal quotation marks omitted).
argues that the First Amendment protects his right to be
present when his ...