sufficiently specific the district court here recognized at least three plausible allegations and here the case is even stronger that all nine legal mail allegations were were clearly pled so the court should have recognized all nine of those legal openings nine legal openings is plainly a pattern or practice that is much more than an isolated mistake that is a recurring problem and we know from the all i mean case from the eleventh circuit as well as common sense that if you are a criminal defendant facing and your life or liberty is on the line and nine times your attorney client communications are interfered with you've got a claim so the first threshold issue again here is is whether opening mail outside is present states a claim and this is the people work going back and forth and if there's a lot of paperwork going back and forth and you have seven cases and your attorneys are afraid to communicate with you through the mails that that's a violation of your right to counsel that has to state a claim  that at least has to state a claim in terms of again we are at the screening stage here in this case where we're just talking about allegations and what one thing again jeff i want i him opened or after he had mailed them where they went so he doesn't know if they were read but he so he can't i guess possibly he couldn't even possibly allege that they were rad because it was out of his sight when they were opened and again i think a critical factor here although there might there might be other there might be other evidence that he could that he could allege that indicated that something was that something was reticent something that has  changed on it or if papers been crumpled in a way that the envelope is not might indicate that something had been opened and pulled out and therefore read it is true but i don't think that he would need to allege that you know it may be that if this case goes forward and we see the mail and you know he amends the complaint to show that there was you know because there's a possible allegation of reading but at this point you know he doesn't know it it may be that he to pose as the guards who opened it and find that in many cases i think that's true and in last you know there were the fingerprints were on the on the evidence and that seems very contrary to the you know provable implausible think is really important is is why especially in the sixth amendment context the context is attorney client communication and what's happening where when attorneys are trying to communicate with clients that are there far away or perhaps that they just need to get documents to and mail is being opened outside their presence there in this dilemma that i talk about in the brief they either have to stop communicating with the client by mail which in a complicated case that involves paperwork would as mister alleges really undermine the ability to provide a defense or they or they have to just risk that opened and he writes back and says my mail is open i'm in a dilemma do i continue to communicate with him because it's hard for me to represent him i can't go visit him you know we don't allow guards to sort of stand by the side of the room as attorney client attorneys are speaking with their clients or listen in on the phone just in case maybe something might happen we don't do that and we shouldn't we shouldn't do that with mail either and again go back to judge posner you know he says like look this isn't great right obviously sometimes lawyers will conspire with with presidents to do something wrong but the right is so important that we have to make this accommodation we have to allow allegations that nine pieces of mail over a period and a little over a year i think were opened survives at least to the summary judgment stage where you know maybe it turns out that these aren't good claims we don't know that but certainly they are well alleged they are provable and put on what do we do with the district courts concerned that that nine of your pieces of mail were not properly marked well if you're i mean you you you've taken a us sure there are there are at least three answers here and i'd like to ask the indulgence of the court to kind of get through all three so first this is this is an interesting test case right because there are no letters think go to the maricopa county jail there are only postcards except for three instances money orders photos and legal mail so already there on the jail should be on alert if mail is coming in an envelope because it's either to be rejected or it's from a prisoner but you send the second thing was money order some mail so those photos and legal maybe photos and money orders have specific requirements about what needs to be marked take an appeal and are just are just trolling for business yes it does because that's still attorney client communication and they don't get to open it now if you were looking for damages later and you said hey  solicitation letter you know was opened the court might say you know that's that that is maricopa follow other other correctional institutions requiring a letter be marked legal mail it does and i is he said all of my incoming and outgoing marked legal mail is being opened and then he listed nine instances and instead of the district court saying oh what he means by those nine instances are properly marked legal mail the district court read it i think for credibly unnaturally and said oh those nine instances he didn't mean you know he needed to say in each instance properly marked instead of saying here are the nine pieces of properly marked legal mail that came in and we know that that's an unnatural reading because one of the pieces that the district court rejected had a grievance attached to it with with the complaint and that grievance says hey this was properly marked legal mail and so they just report rejected something that in fact in the grievance said it was properly markley go male and i don't know i don't want to get in trouble and cite extra record evidence but in his opening brief that was filed before i was appointed rich ina submitted the envelopes and if you look at docket one thousand one page forty two for instance you see what the letters look like they are properly marked legal mail i e you know if that's inappropriate that's appropriate and put it in the brief  while you need to have factual specificity in your complaints saying it's attorney client properly marked attorney client mail should be sufficient he shouldn't have to say well i talked to my attorney and based on attorney client communications i know it was open he should have to go through you know there's a level of specificity and then there's a rabbit hole of requiring more and more finer and finer statements in order simply to state to claim these envelopes there you know there might be a little bit of testimony from judges but to state a claim all you have to do i think is say hey this is partly market trying to climb a wall was opened out it came to me opened what you know there's not much mean i don't see a specially over you know this happened over the course of months if it were i guess there was the case name i forgot there's a northern district of california case where there were two openings in a single day one of which was not actually attorney client mail and the court dismissed that i don't know if that was properly decided but that's sort of the bad day theory you know there's no bad day theory when you have nine illegal nine openings outside the pres a pattern or practice nine says hey we were not just like making a mistake we've got this thing and this is only one person so that means that there is one of two things happening either they don't like mr manager a cina and they're opening his mail on purpose or they're the nine that he had opened probably signifies that they're opening other people's mail so it's either a widespread problem in which case you know it's a serious concept of violation or they're intelligence unit and that when they want to interfere with attorney mail they go and get a court order those things didn't happen here and it specifically says n s e r twenty five eight we don't have many are reaching a down as a danger so they've admitted in their briefing that this was that these were errors and they admit on s c r twenty five that he wasn't a target that they weren't doing this you know because they were trying to prevent some sort of danger and read this coupled with the fact that the incidences are rare and the lack of any substantial allegation of prejudice this efficient to die in the night mr rand you manage your messina the relief you requests i supreme court i don't think is gone that far but circuit courts have but what's your position this morning what should this circuit say i think is its constitutional right to have the mail opened and read in your presence inspected scanned whatever terminology is appropriate to be used i think there's ambiguity there i don't have a problem with that but what's important is that several incidences of incidental accident any of the mail contents were ever divulged to any person at all if those were the situations and that would bring us into the situation some circuit courts have said is required for the case to go forward but how is an inmate to have the knowledge to plausibly allege reading in most of these cases because he communicates with his attorneys and you czerny's would report two incidences of that situation or in a single opening without proof of review by a jail personnel is insufficient to state a constitutional claim is there a number in your mind that is sufficient in other words is there some number of openings without any allegation of reading that you believe would be enough to state a constitutional claim i'm not sure it's certainly more than three your eye opening that is one hundred would that be enough that might be enough there's about ten that might be enough also we have nine here i would go into single digits of we have we have situation of harmless error your honor there often mistakes that occur in trials and situations and the court deems that it's wrong but it's harmless error it's not sufficient to show and you claim don't forget mr manager ciena has had four complaints he's had his opportunity to make all the allegations he wishes and on the fourth complaint the third minute complaint this case was dismissed only if the complaint was reviewed using the right standard the right yes yes  kosky which was relied on by judge wake in which the court didn't hold but it very clearly emphasized that reading mail legal mail was not actionable and the dissent pointed out to the majority there suggest that legal mail be properly read by the prison guard prison rules clearly allow only for contraband inspection and search does not allow reading of the mail there's a second aspect to the williams case says williams fails to establish substantial prejudice williams does not argue and the record does not show that the prosecution used any confidential information obtained from the monitoring or interception to achieve an unfair advantage at trial and it goes on to say williams fails to make a substantial showing of the denial of a constitutional right due to the jail the jail house monitoring and document interception now compare that that obligation of a substantial prejudice in an allegation of substantial prejudice with a northeastern case which holds the harm nordstrom alleges is not that the tainted evidence was used against him but that his right to confer privately with counsel has been chilled this is a plausible consequence of the intentional reading of his confidential legal mail in other words for nordstrom it's plausible that there is injury in the windstream case there has to be an allegation of substantial prejudice it's not improper for this court to shows that there has been no case no circuit case in this country in which the north some cases been cited for the proposition that they were talking about here i think case two thousand and fourteen year and a half has been cited by a district courts but i think for circuit courts and only judge wake sites three instances your honor so you may be talking about some non privileged legal male well the three that he the three that he allowed to go in that were isolated were the first three that's john goe seven that would be september two thousand and eleven he had no date march twenty third two thousand and twelve and november ninth two thousand and twelve those are the three judge waits that could possibly go forward but he's just not going to be too isolated ok the others that are alleged to look to me to be much closer in time yes and those are there are the items that are not properly shown to be marked or labeled as provision legal mail also include allegations of having a shank twice handcuff key once attempted to introduce contraband all that's plain yes those are those are in the complaint relevant those are the cases which he was in jail awaiting trial and how as a district court to include facts like the ones you're describing and evaluating a constitutional civil complaint for sufficiency well it's to change that does it change the burden of proof on the pleader i think it does your honor because it just points out the danger to the jail system and to the court system from these kind of it in his presence and allegation is you're not doing this you're not going to be down there you just send me the stuff you just and it's been opened and i don't know what you've been doing with it if his lawyer is sending him a small enough amount of heroin in the mail that you can even feel it don't we have bigger problems i mean isn't this this opening privilege legal mail in the presence of the end mate but it does point out the serious problem that the jails have and the fact that we should not hold a strict liability standard for incidental non  context of the situation is important as pointed out by the case  of burns versus swenson an eighth circuit case that speaks about the context of the cases always important in deciding the ruling to be hilt the quote hard ok so martin martin some case by judge posner is important because he also points out the danger of criminal lawyers being confederates with their inmates and the fact that in his case nine instances of legal male albi it not privilege legal male but nine instances of legal male being opened did not constitute the basis for action going forward so your hon and the fact that this has been so rare are reasons to all support judge wakes decision thank you very much th the the grievance response from the jail calls it legal mail so again i think that the nine are adequately alleged i've also like to point out as you are twenty six that  that a guard told them that there was no law against opening mail outside his presence and they did that only as a courtesy i think that's important i'd like to point out that that there is prejudice here because he alleges that his criminal defen case he had difficulty communicating with his attorneys and that communication was chilled and then finally just refer briefly to judge poser's opinion again i think it's there's many there are many willingness to help out the court