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Hayes v. Idaho Correctional Center

United States Court of Appeals, Ninth Circuit

March 3, 2017

Michael T. Hayes, Plaintiff-Appellant,
v.
Idaho Correctional Center; Idaho Department of Corrections; Shannon Cluney; Lisa Burke; Jane Does, 1-3, Defendants-Appellees.

          Argued and Submitted June 6, 2016 Seattle, Washington

         Appeal from the United States District Court for the District of Idaho, D.C. No. 1:12-cv-00351-EJL Edward J. Lodge, District Judge, Presiding

          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.

          Before: Richard A. Paez, and Jay S. Bybee, Circuit Judges, and Jon S. Tigar, [*] District Judge.

         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.

         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.

          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]." 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] 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 U.S. 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 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." 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 ...


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