good morning your honors and may place the court harry williams for appellant michael hayes i'd like to reserve two minutes for rebuttal mr hayes has stated a claim under the first amendment in his case was wrongly dismissed  allegations were specific they were provable and they were plausible and the number of instances was enough to survive a motion to dismiss the first threshold issue that this court has asked me to address is whether the jail has to open detainees mail in the presence of a detainee and i think that nordstrom i think that the wolf case from the supreme court and i think that case from across the circuit show that that is is the case unless you were in north terms a little bit different right yes it is it is different from as they say they feel from the bill and they read it right yes there's no question about that right but  court was doing was responding to a mid litigation correction by the state of nebraska but it was certainly permissible it didn't and in fact specifically reserve the question as to whether was constitutional help now that's like a number of courts since that have helped constitutionally compel yes and i don't mean to say that if it were compelled by wolf then i don't think this court would ask me to address the question but i think it is consistent and the only consistent real reading with wolf is to have it open in its presence and we know that this works let's go back to north for just a second or some dealt with a criminal case correct yes and as i understand it mr hayes has cases that he was concerned with were civil action right and so under the first amendment you're don't have a you don't have a sixth amendment claim here there's no six amendment claim brickley englishman's yes and but but nonetheless and i would  w the court's attention although virtually the entire opinion is dicta i think it is often well reasoned dicta to judge posers opinion in martin sent from two thousand and ten and he talks about how e mail in the president's presence is is this strange accommodation that we have to make because of the importance both of the security interests that jails have and the importance of the rights  and it makes sense and in fact it was the policy that was adopted by the defendants here it's the policy adopted in every jail that i deal with that's their stated policy so there's no peta logical reason that can't do this they routinely state that that is their policy because i want to make sure that i understand what's going on so your client alleges four instances in which he received mail that was that was opened yet sort said that one of those was court mail and didn't count yes one of those was not properly marked as legal mail and therefore didn't count yes a few with two and two instances that would be december twenty eighth two thousand and ten march second two thousand and eleven right here that your client burk opened days correct and and how do we know that she read these we don't know that she read them the allegation here is just that she opened them outside his presence that's the allegation if this isn't a reading case this is an opening case a this presents the question of must you open you know in this case civil mail so under the first amendment must you open that attorney client mail in the presence of  an inmate or a a prisoner in this case and so you want you want to rule that says that if you open them open them it's a strict liability rule if you open it you open it inadvertently you got it on some kind of a machine that sort of lets mail mail open and then you going to go and read it later and somebody all my gosh we shouldn't stop this one in there that was marked legal mail that's and violate a clearly established rule and you are now individually liable for having opened the mail outside of his presence even though you haven't touched the and the contents there may be an argument for that's a pretty extreme we're not talking about oh no the machine messed up that day and opened it up we're talking about four letters to a single prisoner that starts to look like more than a random ass don't have any  allegation that she read them no this is again this is not a reading putting so now you're looking at a strict liability rule that is based only on opening the prisoner's mail not reading it wolf clearly dealt with reading and nordstrom clearly dealt with reading sure but you know likely to be chilled because that's an extraordinary amount of legal mail to have been opened in a small amount of time so you can you know move for injunctive relief to make sure that they don't do that now whether there are damages here it is i  general a first injury is not required that's like the war soldier case in this circuit where any denial of the first in that right is harm in and on that self and your client is not these are not criminal cases so that first minute claim that's a claim your clients make exactly so we have we have a claim here but again we don't need to necessarily get to the limit case of one loops we have four allegations here and two that the district court recognize the damages it may concede damages i'm not certain that he couldn't get nominal damages against the entities because the entities would not have fallen fighting me so he i think the that you know as i understand it this case got knocked out on a screening by the district court correct right it's all about the allegations whether their allegations are sufficient to support their plausible the argument and the argument is you know when your honor said oh well this was from the us courts we don't have any logs or any or anything other than a grievance that we don't think that this was actually go mail but we made an error thinking it was legal mail in the first instance and you know we're looking at a credibility determination when somebody says oops we made a mistake when we said we made a mistake but it really is not an issue of your credibility is not an issue that you were at nine fifteen whatever it is exactly and so and so that's why i think it was wrongly decided this i think the court had to make a credibility determination in order to say that this means that it really was not a summary judgment case not a trial pleadings yes honest there's the dismissal of mr hayes complaints in this matter should be upheld because he never played the sufficient facts that would enable him to actually get out of a nine hundred fifteen  a and make complaint i understand your concerns about this being at the pleading stage but one of the main issues with this case is that we are talking about two different types of legal mail and if you and as you read through mr hayes both mr hayes complaints he uses legal mail as a general term and the case law clearly establishes through the majority i mean the ninth circuit but through all the circuits that there is a difference between mail if i may is a little l and legal mail capital l when we're talking about the right for an inmate to correspond with and i'm representing attorney right and at that point that is when the constitutionality kicks in and that's when  but then it specifically stated for the mediterranean court first found that there was one stated incident of legal mail that was sufficient and for the final three that mr hayes have generally alleged but not had specifically stated the judge there actually she gave specific instructions on the facts that should be detailed and mr hayes failed to do that in fact he mostly just filed the same complaint over again and so was a question that the i thought he clarified with respect to the march second so that we we know that the mark the december twenty eighth and the march second clearly satisfy requirement of legal mail from attorneys actually your honor to clarify in the record i think this is an s c r forty forty six and forty seven hundred fifty four and it's actually fifty four fifty five in the grievance response that mr hayes received requirement and granted even at the pleading stage and what mr hayes has done is mainly said i had legal mail that was opened but there's no evidence and this is what the magistrate court was trying to push him to get to is to say we need to know who is this your attorney is this another attorney is the a c l u is this some other sort of legal entity that has sent you mail that you as a pro se inmate do not understand the distinction and so you're just class fine everything is legal mail because he can effectively saying that i am receiving legal mail and as a legal term as a term that has weight and significance when you're dealing with constitutional violations the issue here is has he pled facts to get to that point because i that there's a constitutional right first amendment right to be present when your quote unquote legal meaning is open i would establish i would i would say yes i would say that the that the way that the case law has been established to and i guess i'll backtrack a little bit but there is a basic constitutional right to have your legal mill open in your presence from your attorney but there's also cases that establish that inadvertent openings are isolated incidents do not  and that and this is a unique case in which it was dismissed at the initial review stage but i think the very fact that we had it sent back to mr hayes with a roadmap of here's what you need to allege enough to get to the point where we can go to summary judgment i think that that's part of the real turning point in this case is that it's not just that it was dismissed out of hand by a judge with no legal detail or with no opportunity for mr hayes to argue that in this case it would be because and this is what the district court found because it looked at the second complaint that they received it was mostly factually as honest identical to the first and so they said well it's the first two times we're dealing with exact same fact you apparently don't have the facts to get you beyond the motion to dismiss given that there's a constitutional right to have one's legal mail open in one's presence and assuming for the sake of argument that the  requirements and assuming for the sake of argument that whatever number of instances need to be put have been plowed is the part required to plead injury to move forward only required or is mainly required when there is only one incident of legal mail or that is able to pull the the other issues for example in the in the northeastern case is an excellent example where in that case injury was pled and the court noted that that was an essential element because if you only have one incident of illegal of legal mail being opened and a read then that needs to be some facts to show either improper motive or injury in with regards to that well if it doesn't say if there is only a single instance i'm aware of cases that hold that as the government today take the position in this case that if there and i don't know that we get there in this case because mr his as has pled more than one instance but if we're at a single instance is mr hayes required also to plead injury and i would first like don't represent the government here or just to clarify but allegations against iraq in shannon clooney were under a theory of mono liability and as this court is well aware there is no respond yet superior liability for a governmental entity unless there are allegations of a custom policy or practice that violates the constitution i'd first like to point out as i did in my brief that this wasn't argued in the opening break if but even if it had been it would be irrelevant because mr hayes did not meet the minimum pleading standards twamley he pled knowledge of one incident that channing clooney was aware of of a single employee who admitted to opening mail in legal mail in error and the result of filing that grievance was that the employee was counseled and so really the question is is it is there any additional obligation on behalf of the department of corrections and chairman cluny operating on behalf of the department of corrections to correct that behavior if the behaviors been corrected at the facility level there were no additional allegations and even if there were there's only two incident incidents of erroneous opening of legal mail so even if mr clooney had been aware of that second instant the question then becomes whether that's sufficient for legal liability and if there are no questions i am now at a time thank you thank  so i think that takes care of the argument that he doesn't understand what mail is protected he's talking about attorney client mail on the mono issue the grievance was denied denial is ratification there they've said no consequence it is not a consequence in the moana it could be it could be denied on the grounds that it was that it was inadvertent and your strict liability theory might still be able to go forward on that yet yes but i think that's not that's not to dismiss a mon el dismissal i think that we would need to have some discovery why was it denied but in any way there were two grievances with then again two months and grievances within two months both denied for a constitutional violation we know that ratifying a single unconstitutional act gives rise to mono liability so i think the mono i ability all right thank you council hayes versus idaho correctional center is submitted