F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

N I C K M A

N G I A R A C I N A , Plaintiff-Appellant

,

v

.

P A U L P E N Z O N E ; C R

A I G G A R

C I A , named as: Sg t. Garcia #A7747; U N K N O W N H A N S E N , Officer of the MCSO; E D D I E D E L A R O S A , Sg t./ A7779; A

N T H O N Y M A N K , Sg t./ A4767; J O H

N B E D D O M E , Sg t./ A4986; J E S S E N Y L

A N D , I n mate Classification/ A7875; D E A N W A G N E R , I nmate Classification/ A5441; U

N K N O W N H A R M O N , named as Captain Harmon; U N K N O W N G A R C I A , named as L t. Garcia #A4226; B I L L W I L L I A M S , Ex ternal Reffern; U

N K N O W N W A D E , named as B H O Sg t. W ade; U N K N O W N P A R T I E S , named as J ohn/J ane Does 1–10 Mesa Police Department and J ohn/J ane Does 1–100 County of Maricopa; U

N K N O W N P A R T Y , named as MCSO B HO on Grevince #12- 03278; M A R

I C O P A C O U

N T Y , County of Maricopa J ohn/J ane 1–100 Defendant; U

N K N O W N P A R T I E S , J ohn Doe #1, J ohn Does #3–14; N o. 14-15271

D.C. No. 2:13-cv-00709- NVW -SPL

OPI NI ONM A N G I A R A C I N A V

. P E N Z O N E 2

U N K N O W N C A P A N A R O , Captain at 4th Avenue J a il in April 2012; MCSO SMURC B O A R D , J ohn and J ane Does 15–20,

Defendants-Appellees.

A ppeal from the United States District Court for the District of Ariz o na N eil V. W a k e , District J udg e, Presiding

Arg ued and Submitted J une 6, 2016 Seattle, W a shing ton

F iled March 3, 2017

B efore: Richard A. Paez

and J ay S. B y bee, Circuit J udg es and J on S. Tig a

r, * District J udg e.

Opinion by

J u d g e Paez ; Concurrence by

J udg e B y bee

* T h e Ho n o rab le J o n S

. T ig ar, Distric t J u dg e f o r th e U.S. District Co u rt f o r th e No rth ern District o f Calif o rn i a, sittin g b y

d esig n atio n

.M A N G I A R A C I N A V

. P E N Z O N E 3

SUMMARY * *

P risoner Civil Rights

The panel affirmed in part and reversed in part the district court’s dismissal of a c o m p l a i nt pursuant to 28 U .S.C. § 1915A, and remanded in an action b r o u gh t pursuant to 42 U

. S.C. § 1983 by a prisoner who alleg ed F irst and Six t h Amendment claims a

r ising from jail e mploy ees opening his leg al mai l o u tside his presence while he was a pretrial detainee.

The panel reversed the d i s trict court’s dismissal as to il leg al mail opening s on two separate occasions. The panel held that under Nordstrom v. Ryan
, 762 F .3 d 903, 908 (9th Cir. 2 014), prisoners have a Six th Amendment rig h t to be present when leg al mail related to a criminal matter is i n s p e c ted. F or the remaining c ounts, the panel held that the district c ourt correctly d etermined that plaintif f f ailed to alleg e that the mail opened was properly marked as leg al mail.

T he panel reversed the d ismissal of plaintiff’s F irst Amendment claim, a

n d rem a n d ed to the district court for consideration, if necessary , o f this claim in lig h t of Hayes v

. Idaho Correctional Center
, No. 14-35078 (9th Cir. March 3, 2017), filed concurrently

with this opinion.

Concurring in the judg ment, J udg e B y bee ag reed with the conclusion that prisoners h a ve a g eneral Six th A mendment

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.M A N G I A R A C I N A V

. P E N Z O N E 4

rig ht to be p resent wh e n l egal mail related to a criminal
matter is inspected. H e wrote separately to clarify that merely neg lig ent conduct on the part of prison officials is not sufficient to state a claim.

COUNSEL

Harry W illiams I V (arg

ued), L aw Office of Harry W illiams, Seattle, W ashing ton, for Plaintiff-Appellant.

J ames Kenneth Mang um (arg ued), Deputy County Attorney ; W illiam G. M o n t g omery , County A ttorney ; Civil Services Division, Marico p a County Attorney ’s Office, Phoenix

, Ariz ona; for Defendants-Appellees.

Corene K endrick and Donald Specter, Pris o n L aw Office, B erkeley

, California; David M. Porter, Co-Chair

, N A DCL Amicus Committee, National Association of Cr i m i nal Defense L awy ers, Sacramento, California; for Amici Curiae National A ssociation of Criminal D efense L awy ers, A riz o na Attorney s for Criminal J ustice, Prison L aw Office, American Civil L iberties Union, and ACL U of Ariz ona.M A N G I A R A C I N A V

. P E N Z O N E 5

OP INION

PAEZ , Circuit J udg e:

Nick Mang iaracina appeals the dismissal of his F irst a nd S i xt h A mendment claims arising from jail employ e es o p e n i n g leg al mail outsid e his presence. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm in part, reverse in part, and remand.

I.

A t the time of the events described in the operat i v e complaint (the third amended complaint), Nick Mang iaracina

was incarcerated as a pre-trial detainee in Maricopa County ’s F ourth Avenue J ail in Phoenix

, Ariz o na. T h e jail’s stated policy is to open leg al mail addressed to a prisoner only in the presence of that prisoner. See Maricopa County J a ils, Rules and Regulations for Inmates § 17, a t 2 4

. 1 Mang iaracina alleg ed, h owever, that his mail was repeatedly opened

1 W e tak e j u d icial n otice of th e Marico pa Co u n ty J ails Ru les an d Reg u latio n s f

o r In m ates , a s t

h e d o cu m en t is “ n o t su

b j ect t o reaso n ab le d isp u te” an d “ can b e accu rately a n d read i ly determ in ed f ro m so u rces

w h o s e a c cu racy can n o t reaso n ab ly b e q u estio n ed .” Fed

. R. Ev id

. 2 0 1 (b )(2 ); see Un ited S ta tes v

. Th o r n to n , 5 1 1 F.3 d 1 2 2 1
, 1 2 2 9 n .5 (9 th C i r

. 2 0 0 8 ) (tak in g j u d icial n o tice o f a f ed eral B u reau o f P riso n s p o l i c y statem en t). Relev an t p o rtio n s of th e reg u latio n s are co n tain ed in A p pen d i x 1 to th e Rep lacem en t Op en in g B rief an d Ex h ib it 1 to th e B rief

o f A m ici Cu

riae N a t i o n al A sso ciatio n o f Crim in al Def en se L aw y ers, A rizo n a A tto rn ey s f

o r Crim in al J u s tice, P riso n L aw Of f ice, A m erican Civ il L ib erties Un io n , an d A CL U o f A rizo n a.M A N G I A R A C I N A V

. P E N Z O N E 6

“outside [ his] p resence” in contravention of this policy

. 2 The complaint included descriptions of nine specific instances o f alleg ed improper mail opening

.
Mang iaracina alleg ed that in September 2011, he received

a letter from h is attorney that had been “opened and taped shut.” He further alleg e d that on March 23, 2012, he “mailed

a [ manila ] e n v e l ope that w as sealed to [ his] attorney

. . . . ” W h ile an officer w a s s o rting mail later that evening

, Mang iaracina saw that his letter had been opened. Mang iaracina was then “allowed to r e seal it an d it was mailed.”

O n N ovember 9, 2012, a jail e mploy ee opened a n incoming letter from Mang iaracina’s attorney

. Mang iaracina attached the mail room’s response to his g rievance reg arding the incident, which stated: “The m a i lroom documents any leg al mail that come[ s] in torn-open or damag ed. A ccording
to our records y ou[ r] leg a l mail was delivered to the 4th Ave. J ail sealed and un-opened.” A second response from the jail stated that during mail distribution, “it was noted that inmate Mang iaracina’s leg al mail envelope had been cut o pen a nd stapled c losed prior to it being delivered to [ the F ourth Avenue J ail]

. . . . [ T] he r e a son [it was open] was unknown” to the employ ee responding to the g rievance, “as it had been delivered to [ the F ourth Avenue J ail] that way for distribution.”

2 In rev iew in g an o rd er d ism issin g a c o m p l a in t f or f ailu re to state a claim

, w e accep t all alleg atio n s o f m aterial f acts as tru e, an d w e co n stru e th e f acts in th e lig h t m o st f

av o rab l e t o th e plain tif

f

. No rd stro m v. Rya n , 7 6 2 F.3 d 9 0 3 , 9 08 (9 th

Cir. 2 0 1 4 ).M A N G I A R A C I N A V

. P E N Z O N E 7

Mang iaracina also de s c r i b e d s e v e r a l i n c i d e n ts of improper mail opening in J anuary 2 013. He alleg ed that two outg oing letters to his attorney s were opened on J anuary 9

. W ith respect to one of these letters, Mang iaracina ex plained that he had complained to a correctional o fficer, who “said he knew about it and [ said] it was de[ a] lt w ith.” Mang iaracina alleg ed that a few d ay s later, an incoming letter from an attorney was improp e r ly opened. On J anuary 22, 2013, a jail employ ee ag ain “opened a letter g oing out to [ his] attorney .”

According to the complaint, problems with the handling of M a n giaracina’s leg al mail persisted despite his repeated complaints and g rievances. He a lleg ed that on F ebruary 27, 2013, a jail e mploy e e “o p e n ed a letter g oing out to” his attorney

. F inally

, on March 1 2, 2013, a jail employ ee opened

an incoming letter from an attorney

. Mang iaracina a ttached his g rievance related to the March 1 2 incident, which

ex p lained that the “leg al mail was opene d [ a n d ] taped shut prior to delivery to inmate,” and that it “came up in [the] mail that way .” Mang iaracina received the same response from the mailroom that he had received with respect to the November 9
, 20 1 2 incident: “The mailroom documents any leg al mail that come[ s] in torn-open or damag ed. A ccording
to our records y ou[ r] leg a l mail was delivered to the 4th Ave. J ail sealed and un-opened.” There was no further response

ex p laining whether (o r w hy ) the mail was opened at the jail prior to delivery

.

I n Mang iaracina’s complaint, he furth e r a lleg ed that he had “[ six ] pending trials in superior court[ ] and [ one] federalM A N G I A R A C I N A V

. P E N Z O N E 8

case pending .” 3 I n describing his in j u r y r esulting from the improper opening o f h is leg al mail, Mang iaracina alleg e d that he and his two “attorney s are af[ ]raid to communicate by mail

w h i c h is hard as I have so many cases and s o m u c h pap[ ] erwork to g o b ack and forth.” He further ex plained that his “rig ht to confidentiality and privacy was violated” a nd that his “defense strateg y and [ his] rig hts in g eneral w ere just shredded.” Mang iaracina also reported that an off i c e r h ad told him that “ they can open [leg al mail] outside our presence if they want to,” that “ there is n o law a g ainst it,” and t h at “they just do it in our presence as a [ courtesy ] .”

3 W e g ran t D ef

en dan ts’ m o tio n t o tak e j u d i cial n o tice o f th e six crim in al i n d ictm e n t s p en d in g ag ain st Man g iaracin a i n Marico p a Co u n ty Su p erio r Co u rt at th e tim e of th e i n cid en ts. W e a l so g ran t Def en d an ts’

m o tio n t o t a k e j u d icial n o tice o f th e d o ck et sh eet in th e crim in al case in th e Un ited States District Co u rt f or th e District o f Ar i zo n a in w h ich Man g iaracin a w as sen ten ced i n Feb ru ary 2 0 0 6 to sev en ty

- eig h t m o n th s of im p riso n m en t an d th irty

- six m o n th s o f su perv i sed release. S

ee U.S

. ex rel. Ro b in so n Ra n ch eria Citizen s Co u n cil v. Bo rn eo , In c. , 9 7 1 F.2 d 2 4 4
, 2 4 8 (9 th Cir. 1 9 9 2 ) (“ [W ]e m ay tak e n o ti c e o f p r o ceed in g s in oth er co u rts, b o th w ith in an d w ith o u t th e f ed eral j u d icial sy stem , if

th o se p ro ceed in g s h av e a d irect r e l atio n to m atters at issu e.” (in tern al q u o tatio n m ark s an d citatio n o m itted )).

It is n o t clea r fr o m t h e reco rd w h eth er th e f

ed eral case th at Man g iaracin a ref

erred to in h i s c o m

p lain t w as related to h is p rio r

co n v ictio n

. Def

en d an ts d o n o t co n test th at Man g iaracin a’ s six p en d in g trials in S u

p erio r Co u rt w ere crim in a l trials, n o r d o th ey co n test th at Man g iaracin a’ s co rresp o n d en ce w ith h is atto rn ey s w as related to h is state

o r f ed eral crim in al c a s es. If o n rem an d an d af ter d isco v ery , it b eco m es clear th at so m e o f Man g iaracin a’ s leg al co rresp o n d en ce w as civ il in

n atu re, th e d istr ict co u rt can ad d ress an y in cid en ts related to civ i l leg al

m ail in lig h t o f M a n g i a racin a’ s First A m en d m en t claim

. S ee P art III.B
, in fra

.M A N G I A R A C I N A V

. P E N Z O N E 9

Mang iaracina initially f

iled suit in A riz ona superior court pursuant to 28 U.S.C. § 1983, alleg ing violations of his F irst and Six th Amendment rig h ts b y a number of jail e m p l o y ees

a n d J ohn Doe defendants. Defendants removed the ca s e t o federal court. The d ist r i c t court found that removal was proper and d ismissed the orig inal c omplaint for fail u re to state a claim, but g ranted Mang iaraci n a l eave to amend. After a series of amendments, the c ourt ultimately dismissed Mang iaracina’s T hird Amended Co m p l aint with prejudice. The district court noted that Mang iaracina had failed to specifically a lleg e that the pieces of mail w er e m ar k ed a s “l e ga l m a il” a

nd that, for most of the instances, he failed to

e x plain how he knew the mail was opened outside h i s presence. The co urt acknowledg ed that Mang iaracina did provide additional details for the i n c idents occurring in September 2011, on March 23
, 2012, and on November 9, 2012. T he court concluded, h owever, that even assuming the three items were properly marked as leg al mai l, these “isolated incidents” di d not violate Mang iaracina’s constitutional rig hts. Mang iaracina timely appealed.

II.

W e r eview de novo a district court’s d i s m i ssal of a complaint under 28 U.S.C. § 1915A f or failure to state a claim. Resnick v. Hayes , 213 F .3d 443, 447 (9th Cir. 2000). W e cons true all facts in the lig ht most favorable to the plaintiff, and we construe a p ro se c omplaint liberally

. Nordstrom v. R

yan , 762 F .3d 903, 908 ( 9th Cir. 2014). “Pro

se complaints

. . . may only be dismissed if it appears bey ond doubt that the plaintiff can prove no set o f facts in support o f his claim w hich would en t i t l e him to relief.” Id. ( quotation marks omitted).M A N G I A R A C I N A V

. P E N Z O N E 10

III.

A.

Mang iaracina arg u es that the district court erred in dismissing his Six th Amendment c laim. W e r e verse the district court’s dismissal of this claim as to t w o c o unts o f illeg al mail opening and affirm the dismissal of the remaining
counts.

The Supreme Court addressed the inspection of prisoners’ leg al mail in W

olff v. McDonnell

, 418 U.S. 539 ( 1974). I n W olff

, a g r oup of prisoners challeng ed, inter alia, a prison
reg ulation t h at authoriz ed correctional officers to o pen a nd inspect all incoming mail for cont r a b an d

. The reg ulation included leg al mail but provided th a t such mail was to be inspected in the presence of the p r i soner to whom it was addressed. The plaintiffs arg u ed that leg al m a i l s h ould be

ex e mpted from the inspection requirement e n t i r ely

. The Court held that “inspection or perusal” of leg al mail was permissible. Id. at 576. I n the Court’s v iew, the challeng ed
reg ulation could not have the ef f ec t o f “chill[ ing attorney

client] communications, since the inmate’s presence insures that prison officials w ill not rea d the mail.” Id. at 577 (emphasis added). B ecause the inmate’s presence adequately prote c t ed any rig hts at stake, the Court did not identify the constitutional source or scope of these rig hts. Id. a t 575–77.

W e recently addressed prisoners’ leg al m ail rig hts in Nordstrom

, 762 F .3d 903. I n that case, a prisoner alleg ed that he had written a letter to his criminal attorney and that a correctional officer, instead of inspecting the let t e r in Nordstrom’s presence before sealing and sending it, stood in f r o n t of him and read the letter. We h eld that this eve n t ,M A N G I A R A C I N A V

. P E N Z O N E 11

thoug h isolated, suff

iciently alleg ed a violation o f Nordstrom’s S i x t h Amendment rig ht to counsel. Althoug h the case c oncerned improper reading rather than i m p roper opening of leg al mail, we noted that “the practice of requiring

a n inmate to be present when his leg al mail is opened i s a

measure desig ned to pr e vent officials from reading the mail in the first place.” Id. at 910 (citing W olff

, 418 U.S. at 577);

s ee also Keenan v. Hall

, 83 F .3d 1083, 1094 (9th Cir. 1996), amended on d

enial of rehearing by 135 F .3d 1318 (9th Cir. 1998) ( declining to decide “whether mail clearly sent from a lawy er to an inmate but lacking the ‘L e g al Mail’ desig nation
may be opened outside the presence o f the inmate”); Stevenson v. Koskey

, 8 77 F

. 2d 1435, 1441 (9th Cir. 1 989) (recogniz ing that “the relevant event for p urposes o f analy z ing [ the defe n d ant’s] c u lpability is the alleg ed constitutional injury

, the g u ard’s opening of the letter outside [ the prisoner’s] presence.”). Thus, we have recog n iz ed t h at prisoners have a Six th Amendment r ig ht t o c o n f er privately with counsel and that the practice of opening leg al mail in the prisoner’s presence is specifically desig n e d to protect that rig ht.

O ther c ircuit courts have similarly r ecog niz ed t h e importance of this p ractice. I n Jones v. Brown
, 461 F .3d 353, 3 5 9 ( 3 d Cir. 2006), the Third Circuit recog niz e d, in the
contex t of a F irst Amendment cha l l e n ge , that opening leg al mail outside the addressee’s presence

deprives the e x pression of confidentiality a nd chills the inm ates’ p rotected ex p ression,

r e g a r d l e s s o f t h e s t a t e ’ s g o o d

- f a i t h protestations that it does not, and will not, read the content of the c ommunications. This is so because the only way to ensure that mailM A N G I A R A C I N A V

. P E N Z O N E 12

is not read when opened is to require that it be done in the presence of the inmate to whom it is addressed.

Id. (internal q

uotation marks, alteration, and citat i o n o m i t ted). The Six t h Circuit has similarly a cknowledg ed that a

“ p r i s o n e r ’ s i n t e r e s t i n u n i m p a i r e d

, c o n f i d e n t i a l communication w ith an attorney is an integ ral component o f the judicial process” and has determi n ed that “[ t] here is no penolog ical interest or security concern that justifies opening such mail outside o f the p risoner’s p r esence when the prisoner has specifically requested otherwise.” Sallier v

. Brooks

, 343 F

. 3d 868, 8 77–78 (6th Cir. 2003); see a lso

, e.g. , Al-Amin v. S

m i t h

, 5 1 1 F .3d 1317, 1331 (11th Cir. 2 008) (“[ I ]nmates have a c onstitutionally protected rig ht to h a v e their properly marked attorney mail opened in their presence.”). The same concerns a nimate Mang iaracina’s Six th Amendment challeng e , w hich is predicate d o n the chilling of his protected communications with c r i m inal attorney s. See Merriweather v. Zamora
, 569 F .3d 307, 317 (6th Cir. 2009) (“[ O] p ening properly mar ked leg al mail alone, wi t hout doing more, implicates both the F irst and Six th Amendments because of the potential for a ‘chilling effect.’” (quoting Sallier

, 343 F .3d at 877)). W e therefore now c larify that, under Nords t r om , prisoners have a Six th A mendment rig ht to be p resent when leg al mail related t o a c r i m inal matter is inspected.

B.

Mang iaracina h as alleg ed sufficient facts to state a claim for improper opening of his inco m i n g leg al mail on No vember 9, 2012 a

nd March 12, 2013. F o r e ach of these incidents, Mang iaracina attached his g rievance form and theM A N G I A R A C I N A V

. P E N Z O N E 13

response he received from jail officials. F or the November 9 incident, th e r e s ponse confirmed that the mail had been deliver e d t o the jail sealed b u t had been opened and stapled shut prior to delivery t o M a n g iaracina. F or the March 12 incident, Mang iaracina specifically alleg ed in his g rieva nce that the letter had been “opened [ a nd] taped shut pr i or to delivery .” The alleg ations in the complaint and a ttached documents suffic i e n t l y alleg e that these two pieces of mail

were open e d o utside Mang iaracina’s presence. I n the two responses from the f

acility

, jail o fficials characteriz e b o th pieces of mail as “ leg al mail.” At the pleading s t a ge, these alleg ations are suffic i ent to alleg e that the envelopes were properly marked as leg al mail. F u rther, Mang iaracina alleg e s t h a t h e was informed b y an o fficer that jail employ ees “c a n open [ leg al mail] out s i d e our p resence if they want to,” that th ere is n o law ag ainst it, and that “they just do it in our presence as a [courtesy ] .” These t w o counts therefore sufficiently alleg e v iolations of Mang iaracina’s rig ht to have his c onfidential, properly -marked leg al mail o pened in his
presence. F or the remaining c ounts, the district court correctly determined that Mang iaracin a failed to alleg e that the mail was properly marked as l e ga l m ail, so these c ounts were properly

dismissed.

The absence of a clear pattern bey ond these two incidents does not preclude rel i e f

. I n Nordstrom

, we recog niz ed that

even a sing le instance of impro p er r e ading of a prisoner’s mail can g ive rise to a constitutional v iolation. T h u s , e v en i s o lated incidents o f improper mail opening may , in appropriate circumstances, b e s u fficient to alleg e a Six th Amendment violation. Cf. Merriweather

, 569 F .3 d at 317 (6th Cir. 2009) (“Two o r t h ree pieces of [ a prisoner’s leg al] mail opened in an arbitrary or c apricious way suffice to state a [ F irst Amendment] claim.”).M A N G I A R A C I N A V

. P E N Z O N E 14

Defenda n t s a rg ue that this case is disting uishable from Nordstrom because Mang iaracina does not alle ge t hat jail officials ever read his mail. B ut indeed, how could h e? I f the practice o f opening leg al mail in the presence of the prisoner is d esig ned to prevent correct ional officers from reading it, then the natural corol l a r y is that a prisoner whose mail is opened outside his presence has n o w ay of knowing whether it had been (permissibly

) inspected or ( im permissibly ) r ead. I n other words, Mang iaracina c ould not in g ood faith have alleg ed that jail employ ees had read his mail, since he had no basis for knowing what had happened to his mail prior to delivery

. See Scot t D odson, New P leading, New Discovery
, 109 Mich. L

. Rev. 53, 54 (2010) (“ [ P] laintiffs proceeding

w i t h claims that depend upon facts ex clusively in the han d s (or minds) of defendan t s and third parties may find themselves in a Catch-22: plaintiff needs those facts to plead her claim properly and survive a ‘Twiqbal’ motion to dismiss, b u t she may not be able to discover those facts without f irst surviving the motion to dismiss.”).

Nordstrom presented the r are situation in which a prisoner actually witnessed a correctional officer open and read his leg al mail. T o hold that an office r c o u l d s top short of a prisoner’s cell, op en and read a letter, a nd then deliver it to the prisoner without g iving rise to an actionable claim would elide the central holding

of Nordstrom

.

Nor do Defendants identify any leg itimate penolog ical interest tha t w ould be served by opening leg al mail outside Mang iaracina’s p r esence. J ails a n d p risons may impose

cer t a i n restrictions on incoming mail, so long a s the restrictions are “reasonably related to leg itimate penolog ical interests.” Turner v. Sa

f l e y , 4 8 2 U.S. 78, 89 (1987); see Thornburgh v. Abbott

, 490 U.S. 401, 413–14 ( 1 9 8 9 )

. W eM A N G I A R A C I N A V

. P E N Z O N E 15

defer to the judg ment o f corrections authorities, p a rticularly with reg ard to matters of security

, because we recog niz e that “[ r] unning a prison [ o r jail] is an inordinately diffic u lt undertaking ” with whic h p rison o r jail authorities have particular ex p ertise. Turn e r , 4 8 2 U .S. at 8 4–85. This deference, h owever, only comes into play when the facility offers a leg itimate justification for the challeng ed practice. “[ I ] f the prison fails to show that th e r e g u l ation is rationally related to a leg itimate penolog ical objective, we do not consider the other factors” of the Turner test. A s h k er v

. California Dep’t of Corr.
, 3 50 F .3d 917, 922 (9th Cir. 2003).

Here, the stated policy of the Maricopa County J ails is to open all leg al mail in t h e p resence of the prisoner, a nd Defendants have identified no reason in the i r briefing for deviating from this policy

. No special deference is therefore required. See Al-Amin

, 511 F .3d at 1 3 3 1 ( 1 1th Cir. 2 008) (“[ O] p ening a

n inmate’s attorney mail in his p r e sence

. . . ‘fully accommodates the prisoner’s rig hts at de minimis cost to v alid penolog ical interests.’” (quoting Turner
, 482 U.S. at 91)).

Nevertheless, Defendants attempt to arg ue on appeal that
any deviations were isolated and accidental. W e h ave already

ex p lained why even isolated incidents may support a Six th Amendment claim. See P a r t I I I

. B
, supra

. Additionally

, whether an isolated incident was also accidental is a question of fact that w e do not resolve on a motion to dismiss. At this stag e, we accept all alleg ations of material f a c t as true a

nd
construe them in the lig ht most favorable to the plaintiff. Nordstrom , 762 F .3d at 908.

As we have emphasiz e d in the past, “[ a] criminal d e f e n d a n t ’ s a b i l i t y t o c o m m u n i c a t e c a n d i d l y a n dM A N G I A R A C I N A V

. P E N Z O N E 16

confidentially wi t h his lawy er is essential to his d efense.” Nordstrom

, 762 F .3d at 910. Mang iaracina alleg ed that jail officials h ad repeatedly opened h is leg al mail and that an officer h ad told him that “t h e r e i s no law ag ainst” opening leg al mail before delivering it to a prisoner and “they just do it in [the prisoner’s] p r e s e n c e as a courtesy

. ” Mang iaracina

w a s j u s t i f

i a b l y c o n c e r n e d t h a t h i s a t t o r n e y

- c l i e n t communications would not b e kept confidential. A s a r esult, Mang iaracina and his atto rn ey s we r e “ a f [ ] raid to communicate by mail,” w hich h e described as “hard as I have

so many cases and so much paperwork to g o back and forth.” B y necessity

, prisoners and pre-trial d etainees rely h eavily on t he mail for communication with their a ttorney s. The Maricopa County jail sy stem does n ot allow incoming phone calls or provide access to e-mail, and outg oing phone ca l ls

can only be placed as collect calls

. See Maricopa County J ails, R ules and Regulations for Inm ates § 25, a t 35. Moreover, as Mang iaracina noted in his complaint, criminal

cases often involve paperwork that can onl y fe asibly be transported by mail. A s Mang iaracina p u t i t , his “ rig ht to confidentiality and privacy was violated a s well as [ his] defense strateg y and [ his] rig h ts in g eneral were just shredded.” T hese alleg ati o n s a r e sufficient to state a claim for violation of Mang iaracina’s Six th Amendment rig ht to counsel.

C.

Mang iaracina a lso arg u es that the district court e rr e d in dismissing his Fi rst Amendment claim. I n Hayes v. I daho Correctional Center
, No. 14

- 3 5078 (9th Cir. Mar. 3, 2017), filed concurrently with this opinion, we h e l d that the F irst Amendment protects prisoners’ r ig ht t o have leg al mail opened in their presence. According ly

, we r everse theM A N G I A R A C I N A V

. P E N Z O N E 17

dismissal of Mang iaracina’s F irst Amendment claim, and we remand to the district court for consideration of this claim in lig ht of Hayes
, if necessary

.

* * *

F or t h e reasons set forth a bove, we reverse the district court’s dismissal of Mang iaracina’s Six th A m e n dment a nd F irst Amendment claims with respect to the inci d e n t s on November 9, 2012 a

nd March 12, 2 013. W e affirm the district court’s dismissal o f the r emaining counts of alleg ed improper mail opening

.

The j udgm ent is AF F IRMED in part, REVERSED in part, and REMANDED.

Each party

shall bear its own costs on appeal.

B YB EE, Circuit J udg e, concurring in the judg ment:

I concur i n t h e conclusion in Part I I I .A of the majority opinion, that prisoners have a g eneral Six th Amendment rig ht
to be present when leg al ma i l r e l a ted to a criminal matter is inspected. I write s e p a r a tely because I don’t think the majority has ex plained with sufficient c larity what is r equired
to state a Six th A mendmen t c laim under 42 U.S.C. § 1983. I am deeply concerned that the majority op inion’s characteriz ation of Nordstrom v. Ryan
, 762 F .3d 903 (9th Cir. 2014), and out-of-circuit cases which dealt with either intentional acts or pattern-and-practice alleg ations, Maj. Op. 10–12, may misl e a d t h e district c ourts and the parties into thinking that merely n eg lig ent conduct is sufficient to state aM A N G I A R A C I N A V

. P E N Z O N E 18

claim u nder 42 U.S.C. § 1983. I t is not. I f it was o nce not clear, it is now bey ond question that § 1983 requires proof o f intentional, not merely neg lig ent, acts depriving a party of his constitutional rig hts. 1

I

I n Paul v

. Davis
, the Supreme Court reject e d the notion that § 1983 h ad converted “ the F ourteenth Amendment [ into]

a font of tort law to be superimposed upon whatever sy stems may already be administered b y the States.” 42 4 U .S. 693, 701 ( 1976). I t w as easier to say than to enfo r c e , an d the Supre m e Court had its own missteps in determining what kind of constitutional torts § 1983 covers. I n 1977, the Court
g ranted certiorari in Procunier v

. Navarette
, 434 U.S. 555 (1978), to decide whether prison officials’ neg lig ent handling of a prisoner’s outg oing mail could be the basis for damag e s under § 1983. The Court never g ot there; instead, it decided the case on the basis of qualified immunity and left to another day the critical question o f whether § 1983 covered n eg lig ent conduct. Id. at 559 n.6 (1978). S ee Baker v

. McCollan

, 443 U.S. 1 37, 138 (1979) (ex plaining how Procunier dodg ed the question). Two y e a

rs later, in Parratt v. Taylor

, 451 U.S. 527 ( 1981), the Court c o n sidered whether § 198 3 was a pr oper vehicle to compensate a p risoner under the Due Process Clause for a neg lig ent loss of his property

. The Court said th at “the alleg ed loss, even thoug h neg lig ently caused,

1 P o rtio n s o f th i s c o n cu rren ce are id en tical to p o rtio n s o f m y

co n cu rren ce in th e co m

p an io n case, Ha

yes v. Id a h o Co rrectio n a l C

en ter , No

. 14

- 3 5 0 78
, — F.3 d — (9 th Cir. 2 0 17 ). T h is case ad d resses t h e Six th A m en d m en t rig h t to b e p resen t w h en leg al m ail is in sp ected b y p r i s on g u ard s ; Hay es ad d re s s e s th e F irst A m en dm en t rig h t to b e p resen t. T h e p rin cip les are n early

th e sam e, an d m

y co n cern s are th e sam e.M A N G I A R A C I N A V

. P E N Z O N E 19

amounted to a deprivation” and was actionable under § 1983. Id. at 536–37. F ive y ears later, the Court o verrul e d P arratt in Daniels v

. W

illiams

, 474 U.S. 3 27, 330–31 (1986). T his time the Court concluded that “the Due Process Cla u s e is simply not implicated by a negligent act of an official causing unintended loss o f or injury to life, liberty , or property .” Id.
at 3 28. The Court stated that “lack of due care sug g ests no

more tha n a failure to measure u p to the conduct of a reasonable p erson. To hold tha t i n j u ry caused by such conduct is a deprivation w ithin the meaning of the F ourteenth Amendment would trivializ e the c enturies-old principle o f due p rocess of law.” Id. at 332. “Our Consti t ution,” the Court wrote, “ does not purport to supplant traditional tort law in lay ing d o wn rules of conduct t o r egulate liability for injuries that atten d l iving tog ether in society .” Id. Nevertheless, the Court would “not r ule out the pos s i b ility
t h at there are other c onstitutional provisions that would b e violated by

mere lack of care.” I

d. at 334.

Notwithstanding the Co u r t ’s reservation of judg ment, Daniels ’s log ic has since been e x tended, amendment b y amendment, to other fundamental r ig hts protected by the B ill of Rig hts. A nd, so far as I c a n d e t ermine, no court has h eld that a § 1983 c laim can be proved by mere neg lig ent conduct. F or ex ample, in the F irst Amendme n t free ex ercise contex t, neg lig ence on the part of a g overnment official is not enoug h
to show a violation of c onstitutional rig hts sufficient to state

a claim f or relief under § 1983. S ee Gallagher v. Shelton

, 587 F .3d 1063, 1070 ( 10th Cir. 2009) ( d i smissing § 1983 claim because “a n i s o l ated act of neg lig ence would not violate a n inmate’s F irst A mendment rig ht to free ex ercise o f relig ion”); Lovelace v. Lee
, 472 F .3d 174, 201 (4th Cir. 2 006) (“[ N] e g lig ent acts by

officials causing unintended denials o f relig ious rig hts d o not violate the F ree Ex ercise Clause.”);M A N G I A R A C I N A V

. P E N Z O N E 20

Lewis v. Mitchell

, 4 16 F

. Supp. 2 d 935, 9 44 (S.D. Cal. 2 005) (holding more than neg lig ence is r e q uired to state a valid § 1983 claim for violation of prisoner’s F irst A mendment rig ht to freely

ex ercise relig ion); Shaheed v. W inston
, 885 F

. Supp. 861 (E.D. Va. 1995) (finding “defendants [ sic] actions

were neg lig ent, not intentional, and the plaintiffs may n ot rely

on § 1983 as a basis for this claim”), a ff’d on other grounds

, 161 F .3d 3 (4th Cir. 1998) (unpublished).

Similarly

, in access-to-court c ases, also under the F irst Amendment, the circuit c o u rts have u niformly h e ld that
neg l i ge nce is not sufficient to r aise a claim under § 1983. The Seventh Circuit, f

o r ex ample, has found that “a mere isolated incident of negl i ge n ce

. . . does not rise to the level of a constitutional v iolation a c tionable u nder section 1983.” Ki ncaid v

. V

ail

, 969 F .2d 5 94, 602 (7th Cir. 1992); see also Crawford-El v. Britton
, 951 F .2d 1314, 1318 (D.C. Cir. 1 991) (holding that intentional interference w ith access to court violates Constitution)); P ink v. Lester
, 52 F .3d 73, 7 6 (4th Cir. 1 995) (holding that neg lig ent c on d u c t in misrouting a form does not violate the F irst A m e n d m ent’s rig ht to petition).

I n the F ourth Amendment c ontex t, the Supreme Court has held that “[ v] iolation of the F ou r t h A mendment requires an intentional acquisition of phy sical control. A seiz ure occurs

even when an unintended person or thing is the object of the detention o r taking

, but the detention or taking itself must be willful.” B r ower v

. Cty. of Inyo
, 489 U.S. 593, 596 (1989) (citations omitted). The Supreme Court found sup p o r t for this h olding in the tex t of the F ourth Amendmen t , s i n c e seiz ure does not imply an “unknowing act,” as w ell a s the hi story of the F ourth Amendment, which was addressed to “‘misuse of power,’ not the accidental effects of otherw iseM A N G I A R A C I N A V

. P E N Z O N E 21

lawful g overnment conduct.” Id. ( citation omitted). The Court elaborated:

[ I ] f a parked and unoccupied pol i c e car slips its brake and pins a passerby ag ainst a wall, it is likely that a tort has occurred, b u t not a violation of the F ourth Amendment. And the situation wo u l d not chang e if the p asserby happened, by lucky chance, to be a serial murderer for whom there was an outstanding
arrest warrant—even if, at the time he was thus pinned, he was in the process of running
away from two pursuing cons t a b les. I t is clear, in other words, that a F ourth Amendment seiz u re does not occur whenever there is a g overnmentally caused termination of an individual’s freedom of movement (the innocent passerby

), nor even whenever there i s a g o v e r n m e n t a l l y c a u s e d a n d
g overnmentally desired t ermination of an indivi d ual’s freedom o f movement (the fleeing felo n )

, but only when there is a g overnmental termin ation of freedom o f
movement through means intentionally applied

.

I d

. a t 5 96–97. W e have similarly held that to state a F our t h Amendment claim a g ainst a g ov ernment investig ator for submittin g f

a lse and material information in a warrant affidavit, “a § 1983 plaintiff must show that the investig ator ‘made deliberately false statements or recklessly disreg arded the truth in the affidavit’ and that the f a l s i f ications were ‘material’ to the finding of probable cause.” Galbraith v. Cty.M A N G I A R A C I N A V

. P E N Z O N E 22

of Santa Clara

, 307 F .3d 1119, 1126 (9th Cir

. 2 002) (emphasis added) (citation omitted).

I n the Eig hth Amendment contex t, the Supreme Court has f o u n d that more then neg lig ence is required to raise a cl a i m for cruel and unusual punishment. W ilson v. Seiter
, 501 U.S. 294, 2 9 7 ( 1991); Estelle v. Gamble

, 4 29 U.S. 97, 106 (1976). I n Estelle

, the Supreme Court r ejected an Eig hth A mendment claim based o n inadvertent fail u r e t o provide adequate medical care:

[ A] complaint that a phy s i c i an has been
neg lig ent in diag nosing o r treating a medical condition does n ot state a valid claim o f medical mistreatmen t under the Eig hth Am e n dment. Medical malpractice d oes not become a constitutional violation mer el y because the victim is a p r isoner. I n order to state a cog niz a

ble cl a i m, a prisoner must alleg e acts or omissions sufficiently harmful
t o evidence deliberate indifference to seriou s medical needs.

429 U .S. at 107. I n W

ilson

, the Court added that “ ‘[ i] t is o nly such indifference’ that can violate the Eig h t h Amendment; alleg ations of ‘inadve r t e nt failure to provide adequate medical care’ or of a ‘neg lig ent

. . . diag n os[ is] ’ simply fail to establish the requisite culpable state of mind.” 50 1 U

. S. at 297 (quoting E

stelle

, 429 U .S. at 105–06) (alteration in orig inal) (citations omitted).

These same c onsiderations should inform our judg me nt about the Six th A mendment r i g ht to be present when leg al mail related to a criminal matter is inspected. Ther e isM A N G I A R A C I N A V

. P E N Z O N E 23

nothing about the a ttorney -client relationship that sug g ests that merely inadvertent conduct t hat touches o n that relationship is a c o nstitutiona l v iolation. The courthouse custodian who accidenta l ly walks in on an attorney -client

con f erence may “chill” their c onversation, but—without more—has done nothing actionable under § 1983. Similarly

, the mail clerk who accidentally opens leg al mail, seals it up, and notes “opened by mistake, and n o t read” has not v iolated the Six th Amendment, even if the prisoner-recipient is unhappy to receive his mail in t h a t format. I f the prisoner doubts the veracity o f the mail clerk, or has s e e n a broad pattern of improperly

opened leg al mail, the prisoner should alleg e that the act is intentional or that an inference of intent should be drawn f

rom the pattern and practic e

. T o fail to recog niz e the importance of alleg ing intentional conduct would be to risk strict li a b i l i t y claims under § 1983, something no court has ever approved.

I I

Apply in g t he above principles to Mang iaracina’s c laim, Mang iaracina h as alleg ed a “policy a nd practice” of illeg ally opening inmates mail. He alleg ed a t least f o u r instances where his leg a l mail was opened outside his presence a nd that prison employ e es stated they can open leg al mail o utside the prisoner’s presence “ if they w an t t o ” and there is “no law

a ga inst it.” These are sufficient facts to all e ge a constitutional violation at the pleading stag e of the litig ation for the openi n g of Mang iaracina’s incoming leg al mail on November 9, 2012 and March 12, 2013.M A N G I A R A C I N A V

. P E N Z O N E 24

A

The majority opi n i o n focuses on whether the number o f incidents was sufficie n t to state a cause o f action but overlooked the question of the nature of the incidents a lleg ed. The opinion c oncludes that two i n c i dents in four months “sufficiently alleg e” viol ations of Mang iaracina’s Six th Amendment r ig ht to counsel, 2 and “ [ t] he a b s e n ce of a clear pattern bey ond these two incidents does not preclude relief.” Maj. Op. at 13. To reach this conclusion, the opinion relies heavily on our r ecent d e c i sion in Nordstrom for the proposition that a “sing le instance” of improper reading of a prisoner’s mail c a n g ive rise to a constitutional violation. Maj. Op. at 13 (citing Nordstrom , 762 F .3d 903). However, the sing le incident in Nordstrom was suffic i e n t b ecause it “was not simply a one-time mis t a k e or confusion over the
contours of the [ prision] policy

. . . the [ prison d] irector ha[ d] personally informed [ N ordstrom] that p rison officials a re permitted to read his leg al mail.” Nordstrom

, 762 F .3d at 911–12. T here, as our opinion n oted, t h e p r i son officials openly read Nordstrom’s mail in front of h i m a n d over his protests. Id. at 906. And, the prison’s response to the prisoner’s g r ievance was not that this was a mere accident o r

an isolated instanc e o f reading leg al mail, but rather that its policy permitted g uards to read leg al mail as long as it was

2 T h e m aj ority n o t es Def en d an ts h a v e n o t o f

f ered “ an y leg itim ate p en o lo g ical in t erest th at w o u ld b e serv ed b y ” o p en in g Man g iara cin a’ s leg al m ail. Maj

. Op

. at 1 4

. Ho w ev er, th e test created i n Tu rn er v. S a fley

, 4 8 2 U.S. 78 (1 9 8 7), w as d irected at p riso n reg u l a tio ns

. Id

. at 8 9

. I am n o t

su re h o w th e test ev en ap plies to in ad v erten t co n d u ct. W h at p en o lo g i cal

reaso n can th e State o f

f er if so m eo n e o p en ed th e letter b y m istak e? T h e

o p i n io n th u s stro n g ly su g g ests th at m istak e or in ad v erten ce is n o t a leg i tim ate p en o lo g ical reaso n

. If so , Man g iaracin a’ s claim n early so u n d s in strict liab ility

.M A N G I A R A C I N A V

. P E N Z O N E 25

done in the prisoner’s presence. Id. at 907 (noting that t h e prison director’s response to g r ievance reasoned that “[ s] taff is auth o r iz ed to scan and is not prohibited from reading the

m a i l to e stablish the absence of contraband and ensure t h e content of the mail is of leg al subject matter” (alteration in orig inal)). T he prison reg ulations, in fact, prohibited r eading outg oing attorney -client correspondence. Id. at 910–11. Nordstrom is consistent with the principle that § 1983 covers only intentional acts affecting constitutional rig hts.

The majority opin ion c oncludes that “even isolated incidents o f improper mail o pening may , in appropria te circumstances, be sufficient to alleg e a Six th A mendment violation.” Maj. Op. at 13. The majority does not outli n e what such “appropriate circumstances are,” but proceeds to quote the holding in Merriweather v. Zamora
, 569 F

. 3d 307, 318 (6th Cir. 2009), that “[ t] wo o r three pieces of [ a prisoner’s leg al] mail o pening in an arbitrary o r ca p r i c i ous way suffice to state a [ Six th] Amendmen t claim.” Maj. Op.

a t 1 3 (alteration in orig inal). I reg r et that the majority h as introduced an “arbitrary or capricious” s t a n d ard into the evaluation o f § 1 9 83 claims under the Six th Amendment. That standard is w ell-known in the ad m i n i s trative law
contex t, where i t is prescribed by statute, 5 U .S.C. § 7 0 6(2)(A), b ut it is n o t a f ami l i a r standard for judg ing constitutional torts. The majority borrows the phrase from the Six th Circuit, where it apparently orig inated in Parrish v

. Jo h n s o n , 8 0 0 F .2d 600 (6th Cir. 1986). See id. at 604 (“[ T] his c ase concerns Turner’s arbitrary opening a nd r eading of Giles’ personal mail. . . . A capricious interference with a prisoner’s incoming mai l based upon a g uard’s personal prejudices violates the F i r s t Amendment.”). B ut we shouldn’t mistake “arbitrary and capricious” conduct in this contex t a s something less than “intentional conduct.” The case that g aveM A N G I A R A C I N A V

. P E N Z O N E 26

us the unfortunate phrase, Parrish

, invol v e d intentional conduct: the prisoner, who was parapleg ic, “testified that [ a prison g uard] would randomly open and read his personal mail and that [ the g uard] would a lso taunt him by waving the

o p e n m ail in front of him.” Id. a t 6 0 3. The court obser v e d that the case did not i n v o l v e “a r eg ularly applied reg ulation

. . . or a random i n t e rference w ith a prisoner’s mail.” Id. at 604. Parrish in v o lved an alleg a tion that the defendant h ad intentionally violated the prisoner’s rig hts. O t h e r Six th Circuit c ase s , which have continued to use the imprecise “arbitrary and capricious” lang uag e, also involve alleg ations of i n tentional or pattern-and-practice conduct. See
, e.g. , Merriweather

, 569 F .3d at 317 (finding that six teen instances of improperly opened leg al mail were sufficient to state a

cause of a ction); Sallier v. Brooks

, 343 F

. 3d 868, 872, 879–80 (6th Cir. 2003) ( upholding a damag e a w a r d w here the prisoner could prove that officials h ad delibera t ely opened three pieces of leg a l mail and the prisoner “had filed a written request to h ave such mail opened only i n h i s presence”); Lavado v. Keohane

, 9 92 F. 2 d 6 01, 610 (6th Cir. 1 993) (holding it was sufficient that the p ri s o n er alleg ed that a B ureau of Prisons employ e e h a d “ blatant disreg ard for established reg ulations [that ga ve] rise to an inference o f arbitrary or capriciou s action” and noting that the prisoner had alleg e d that defendant “ read L avado’s pr o p er ly marked

corr e s pondence a

nd proceeded to g ive L avado his business card so L avado would be able to spell his name correctly when L avado sued”); Reneer v. Sewell

, 975 F .2d 258, 259–60 (6th Cir. 19 92) (“[ I ]f the mail was actually read, and this action w as motivated b y re t a liation a s plaintiff alleg es, such behavior by priso n officials mig ht [be]

. . . arbitrary action

. . . ”). The decisions cited by the majority from o ther c ircuits

are not to the contrary

. See
, e.g. , Al-Amin v. Smith

, 511 F .3d 1317, 1334 (11th Cir. 2008) (finding prisoner alleg ed “patternM A N G I A R A C I N A V

. P E N Z O N E 27

a n d p ractice of opening

. . . clearly marked attorney mail ”) ; Jones v. Brown
, 461 F .3d 353, 359–60 (3d Cir. 2006) (noting prison policy required officials to open all m a il outside the
presence of prisoners in order to scr e e n f o r anthrax and “[ a]
state p attern and practice, or , a s i s the case here, ex plicit policy

, of o pening leg al m a il o utside the presence of the addressee inmate” v i o l a tes constitutional rig hts); Davis v

. Goord

, 3 20 F .3d 346, 351 (2d Cir. 2003) (“ [ A] n isolated incident of mail tampering is usually insufficient to establish

a constitutional violation. Rather, the inmate must show that prison officials ‘reg

ularly a n d u n justifiably interfered with the incoming leg a l mail.’” (citations omitted)).

I wish the majority had simply stated the obvious for the benefit of the parties and the d istrict court: in ord e r to survive a motion to dismiss—mu c h less prevail on the merits—the p laintiff must a lleg e some kind o f deliberate action on the part of prison officials. An a l l e ga t i o n that prison officials opened a prisoner’s leg al mail, without an alleg ation that the mail was d eliberately and n ot n eg lig ently opened, is not sufficient to state a c a u s e of action under § 1983.

B

The opinion c o ncludes that Mang iaracina has alleg ed sufficient facts to state a claim for two instances of improper leg al mail o pening (November 9, 2 012 and March 12, 2013). I n both instances, the prison responded to Mang i a r ac ina’s
g rievance by n oting the mail had been delivered from the offsite mail room to the Fo u r t h Av enue J ail, where he was housed, “sealed and u n-ope n e d.” Mang iaracina alleg es that sometime between deli very to the jail and delivery to Mang iaracina’s pod, the mail w as improperly opened “in theM A N G I A R A C I N A V

. P E N Z O N E 28

jail somewhere mail does not g et opened.” The p r ison could not provide a reason it was opened.

These alleg ations, by t h e m selves, a re not sufficient to state a cause o f action under § 1983. I n the end, however, I join the majority in c oncluding that Mang iaracina ha s said
enoug h at this stag e of the proceeding s to alleg e a constitutional tort. As the majority ex pl a i n s , Mang iaracina al s o p l e d that his leg a l mail continually g ets opened and, in
response to his g rievance, a n officer told him “they can open [ leg al mail ] o u t s i de [a prisoner’s] presence if they want to.” The officer said “there is no law ag ainst it[ ,] they just do it in [ the prisoner’s] presence as a c ourtesy .” The official’s
statements indicate the conduct was “not sim p l y a one-time mistake or confusion over t h e contours of the [ Maricopa] policy .” Nordstrom

, 762 F .3d at 911. Althoug h Maricopa County J a i l s rules and r eg u lations comply with the requirements of today ’s holding

, Maj. Op. at 5, that written
p o l i c y a lone is insufficient if prison staff are intentionally ig noring that policy since it is just “a courtesy ” and not the “law.” Showing a “ blatant d isregard for e stablished
reg ulations” is sufficient to r aise an in f e r ence of intentional conduct to survive a motion to dismiss. Lavado

, 9 22 F

. 2 d at 611.

At this stage in the litig ation, w e must accept all

a l l e ga t ions of material fact as true and c onstrue them in t h e lig ht most favorable to the plaintiff. Nordstrom

, 762 F .3d at 908. Constr u ing Mang iaracina’s pro se complaint liberally

, I conclude that Mang iaracina has sufficiently claimed that

someone is intentionally

, r a t h er than merely accidentally

,M A N G I A R A C I N A V

. P E N Z O N E 29

o p e n i n g his leg al mail in violation of his Six th Amendmen t rig hts. He may or may not be able to prove h is claim, but he has said just enoug h to g et the opportunity

.
On that basis, I concur in the judg ment.