               FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


NICK MANGIARACINA,                   No. 14-15271
              Plaintiff-Appellant,
                                        D.C. No.
                v.                   2:13-cv-00709-
                                       NVW-SPL
PAUL PENZONE; CRAIG GARCIA,
named as: Sgt. Garcia #A7747;
UNKNOWN HANSEN, Officer of the         OPINION
MCSO; EDDIE DE LA ROSA, Sgt./
A7779; ANTHONY MANK, Sgt./
A4767; JOHN BEDDOME, Sgt./
A4986; JESSE NYLAND, Inmate
Classification/ A7875; DEAN
WAGNER, Inmate Classification/
A5441; UNKNOWN HARMON, named
as Captain Harmon; UNKNOWN
GARCIA, named as Lt. Garcia
#A4226; BILL WILLIAMS, External
Reffern; UNKNOWN WADE, named
as BHO Sgt. Wade; UNKNOWN
PARTIES, named as John/Jane Does
1–10 Mesa Police Department and
John/Jane Does 1–100 County of
Maricopa; UNKNOWN PARTY, named
as MCSO BHO on Grevince #12-
03278; MARICOPA COUNTY, County
of Maricopa John/Jane 1–100
Defendant; UNKNOWN PARTIES,
John Doe #1, John Does #3–14;
2                 MANGIARACINA V. PENZONE

 UNKNOWN CAPANARO, Captain at
 4th Avenue Jail in April 2012;
 MCSO SMURC BOARD, John and
 Jane Does 15–20,
               Defendants-Appellees.


        Appeal from the United States District Court
                 for the District of Arizona
          Neil V. Wake, District Judge, Presiding

              Argued and Submitted June 6, 2016
                     Seattle, Washington

                       Filed March 3, 2017

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

                    Opinion by Judge Paez;
                  Concurrence by Judge Bybee




   *
      The Honorable Jon S. Tigar, District Judge for the U.S. District
Court for the Northern District of California, sitting by designation.
                   MANGIARACINA V. PENZONE                               3

                            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 and Sixth
Amendment claims arising from jail employees opening his
legal mail outside his presence while he was a pretrial
detainee.

    The panel reversed the district court’s dismissal as to
illegal mail openings on two separate occasions. The panel
held that under Nordstrom v. Ryan, 762 F.3d 903, 908 (9th
Cir. 2014), prisoners have a Sixth Amendment right to be
present when legal mail related to a criminal matter is
inspected. For the remaining counts, the panel held that the
district court correctly determined that plaintiff failed to
allege that the mail opened was properly marked as legal
mail.

   The panel reversed the dismissal of plaintiff’s First
Amendment claim, and remanded to the district court for
consideration, if necessary, of this claim in light of Hayes v.
Idaho Correctional Center, No. 14-35078 (9th Cir. March 3,
2017), filed concurrently with this opinion.

   Concurring in the judgment, Judge Bybee agreed with the
conclusion that prisoners have a general Sixth Amendment

    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4               MANGIARACINA V. PENZONE

right to be present when legal mail related to a criminal
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.


                         COUNSEL

Harry Williams IV (argued), Law Office of Harry Williams,
Seattle, Washington, for Plaintiff-Appellant.

James Kenneth Mangum (argued), Deputy County Attorney;
William G. Montgomery, County Attorney; Civil Services
Division, Maricopa County Attorney’s Office, Phoenix,
Arizona; for Defendants-Appellees.

Corene Kendrick and Donald Specter, Prison Law Office,
Berkeley, California; David M. Porter, Co-Chair, NADCL
Amicus Committee, National Association of Criminal
Defense Lawyers, Sacramento, California; for Amici Curiae
National Association of Criminal Defense Lawyers, Arizona
Attorneys for Criminal Justice, Prison Law Office, American
Civil Liberties Union, and ACLU of Arizona.
                  MANGIARACINA V. PENZONE                             5

                             OPINION

PAEZ, Circuit Judge:

    Nick Mangiaracina appeals the dismissal of his First and
Sixth Amendment claims arising from jail employees opening
legal mail outside his presence. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm in part, reverse
in part, and remand.

                                   I.

    At the time of the events described in the operative
complaint (the third amended complaint), Nick Mangiaracina
was incarcerated as a pre-trial detainee in Maricopa County’s
Fourth Avenue Jail in Phoenix, Arizona. The jail’s stated
policy is to open legal mail addressed to a prisoner only in the
presence of that prisoner. See Maricopa County Jails, Rules
and Regulations for Inmates § 17, at 24.1 Mangiaracina
alleged, however, that his mail was repeatedly opened




    1
      We take judicial notice of the Maricopa County Jails Rules and
Regulations for Inmates, as the document is “not subject to reasonable
dispute” and “can be accurately and readily determined from sources
whose accuracy cannot reasonably be questioned.” Fed. R. Evid.
201(b)(2); see United States v. Thornton, 511 F.3d 1221, 1229 n.5 (9th
Cir. 2008) (taking judicial notice of a federal Bureau of Prisons policy
statement). Relevant portions of the regulations are contained in
Appendix 1 to the Replacement Opening Brief and Exhibit 1 to the Brief
of Amici Curiae National Association of Criminal Defense Lawyers,
Arizona Attorneys for Criminal Justice, Prison Law Office, American
Civil Liberties Union, and ACLU of Arizona.
6                  MANGIARACINA V. PENZONE

“outside [his] presence” in contravention of this policy.2 The
complaint included descriptions of nine specific instances of
alleged improper mail opening.

    Mangiaracina alleged that in September 2011, he received
a letter from his attorney that had been “opened and taped
shut.” He further alleged that on March 23, 2012, he “mailed
a [manila] envelope that was sealed to [his] attorney. . . .”
While an officer was sorting mail later that evening,
Mangiaracina saw that his letter had been opened.
Mangiaracina was then “allowed to reseal it and it was
mailed.”

    On November 9, 2012, a jail employee opened an
incoming letter from Mangiaracina’s attorney. Mangiaracina
attached the mail room’s response to his grievance regarding
the incident, which stated: “The mailroom documents any
legal mail that come[s] in torn-open or damaged. According
to our records you[r] legal mail was delivered to the 4th Ave.
Jail sealed and un-opened.” A second response from the jail
stated that during mail distribution, “it was noted that inmate
Mangiaracina’s legal mail envelope had been cut open and
stapled closed prior to it being delivered to [the Fourth
Avenue Jail]. . . . [T]he reason [it was open] was unknown”
to the employee responding to the grievance, “as it had been
delivered to [the Fourth Avenue Jail] that way for
distribution.”




    2
      In reviewing an order dismissing a complaint for failure to state a
claim, we accept all allegations of material facts as true, and we construe
the facts in the light most favorable to the plaintiff. Nordstrom v. Ryan,
762 F.3d 903, 908 (9th Cir. 2014).
                MANGIARACINA V. PENZONE                       7

     Mangiaracina also described several incidents of improper
mail opening in January 2013. He alleged that two outgoing
letters to his attorneys were opened on January 9. With
respect to one of these letters, Mangiaracina explained that he
had complained to a correctional officer, who “said he knew
about it and [said] it was de[a]lt with.” Mangiaracina alleged
that a few days later, an incoming letter from an attorney was
improperly opened. On January 22, 2013, a jail employee
again “opened a letter going out to [his] attorney.”

    According to the complaint, problems with the handling
of Mangiaracina’s legal mail persisted despite his repeated
complaints and grievances. He alleged that on February 27,
2013, a jail employee “opened a letter going out to” his
attorney. Finally, on March 12, 2013, a jail employee opened
an incoming letter from an attorney. Mangiaracina attached
his grievance related to the March 12 incident, which
explained that the “legal mail was opened [and] taped shut
prior to delivery to inmate,” and that it “came up in [the] mail
that way.” Mangiaracina received the same response from
the mailroom that he had received with respect to the
November 9, 2012 incident: “The mailroom documents any
legal mail that come[s] in torn-open or damaged. According
to our records you[r] legal mail was delivered to the 4th Ave.
Jail sealed and un-opened.” There was no further response
explaining whether (or why) the mail was opened at the jail
prior to delivery.

   In Mangiaracina’s complaint, he further alleged that he
had “[six] pending trials in superior court[] and [one] federal
8                  MANGIARACINA V. PENZONE

case pending.”3 In describing his injury resulting from the
improper opening of his legal mail, Mangiaracina alleged that
he and his two “attorneys are af[]raid to communicate by mail
which is hard as I have so many cases and so much
pap[]erwork to go back and forth.” He further explained that
his “right to confidentiality and privacy was violated” and
that his “defense strategy and [his] rights in general were just
shredded.” Mangiaracina also reported that an officer had
told him that “they can open [legal mail] outside our presence
if they want to,” that “there is no law against it,” and that
“they just do it in our presence as a [courtesy].”




    3
       We grant Defendants’ motion to take judicial notice of the six
criminal indictments pending against Mangiaracina in Maricopa County
Superior Court at the time of the incidents. We also grant Defendants’
motion to take judicial notice of the docket sheet in the criminal case in
the United States District Court for the District of Arizona in which
Mangiaracina was sentenced in February 2006 to seventy-eight months of
imprisonment and thirty-six months of supervised release. See U.S. ex rel.
Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248
(9th Cir. 1992) (“[W]e may take notice of proceedings in other courts,
both within and without the federal judicial system, if those proceedings
have a direct relation to matters at issue.” (internal quotation marks and
citation omitted)).

      It is not clear from the record whether the federal case that
Mangiaracina referred to in his complaint was related to his prior
conviction. Defendants do not contest that Mangiaracina’s six pending
trials in Superior Court were criminal trials, nor do they contest that
Mangiaracina’s correspondence with his attorneys was related to his state
or federal criminal cases. If on remand and after discovery, it becomes
clear that some of Mangiaracina’s legal correspondence was civil in
nature, the district court can address any incidents related to civil legal
mail in light of Mangiaracina’s First Amendment claim. See Part III.B,
infra.
                MANGIARACINA V. PENZONE                       9

    Mangiaracina initially filed suit in Arizona superior court
pursuant to 28 U.S.C. § 1983, alleging violations of his First
and Sixth Amendment rights by a number of jail employees
and John Doe defendants. Defendants removed the case to
federal court. The district court found that removal was
proper and dismissed the original complaint for failure to
state a claim, but granted Mangiaracina leave to amend.
After a series of amendments, the court ultimately dismissed
Mangiaracina’s Third Amended Complaint with prejudice.
The district court noted that Mangiaracina had failed to
specifically allege that the pieces of mail were marked as
“legal mail” and that, for most of the instances, he failed to
explain how he knew the mail was opened outside his
presence. The court acknowledged that Mangiaracina did
provide additional details for the incidents occurring in
September 2011, on March 23, 2012, and on November 9,
2012. The court concluded, however, that even assuming the
three items were properly marked as legal mail, these
“isolated incidents” did not violate Mangiaracina’s
constitutional rights. Mangiaracina timely appealed.

                              II.

    We review de novo a district court’s dismissal of a
complaint under 28 U.S.C. § 1915A for failure to state a
claim. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).
We construe all facts in the light most favorable to the
plaintiff, and we construe a pro se complaint liberally.
Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014). “Pro
se complaints . . . 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.” Id. (quotation
marks omitted).
10              MANGIARACINA V. PENZONE

                             III.

                             A.

    Mangiaracina argues that the district court erred in
dismissing his Sixth Amendment claim. We reverse the
district court’s dismissal of this claim as to two counts of
illegal mail opening and affirm the dismissal of the remaining
counts.

    The Supreme Court addressed the inspection of prisoners’
legal mail in Wolff v. McDonnell, 418 U.S. 539 (1974). In
Wolff, a group of prisoners challenged, inter alia, a prison
regulation that authorized correctional officers to open and
inspect all incoming mail for contraband. The regulation
included legal mail but provided that such mail was to be
inspected in the presence of the prisoner to whom it was
addressed. The plaintiffs argued that legal mail should be
exempted from the inspection requirement entirely. The
Court held that “inspection or perusal” of legal mail was
permissible. Id. at 576. In the Court’s view, the challenged
regulation could not have the effect of “chill[ing attorney-
client] communications, since the inmate’s presence insures
that prison officials will not read the mail.” Id. at 577
(emphasis added). Because the inmate’s presence adequately
protected any rights at stake, the Court did not identify the
constitutional source or scope of these rights. Id. at 575–77.

    We recently addressed prisoners’ legal mail rights in
Nordstrom, 762 F.3d 903. In that case, a prisoner alleged that
he had written a letter to his criminal attorney and that a
correctional officer, instead of inspecting the letter in
Nordstrom’s presence before sealing and sending it, stood in
front of him and read the letter. We held that this event,
                MANGIARACINA V. PENZONE                      11

though isolated, sufficiently alleged a violation of
Nordstrom’s Sixth Amendment right to counsel. Although
the case concerned improper reading rather than improper
opening of legal mail, we noted that “the practice of requiring
an inmate to be present when his legal mail is opened is a
measure designed to prevent officials from reading the mail
in the first place.” Id. at 910 (citing Wolff, 418 U.S. at 577);
see also Keenan v. Hall, 83 F.3d 1083, 1094 (9th Cir. 1996),
amended on denial of rehearing by 135 F.3d 1318 (9th Cir.
1998) (declining to decide “whether mail clearly sent from a
lawyer to an inmate but lacking the ‘Legal Mail’ designation
may be opened outside the presence of the inmate”);
Stevenson v. Koskey, 877 F.2d 1435, 1441 (9th Cir. 1989)
(recognizing that “the relevant event for purposes of
analyzing [the defendant’s] culpability is the alleged
constitutional injury, the guard’s opening of the letter outside
[the prisoner’s] presence.”). Thus, we have recognized that
prisoners have a Sixth Amendment right to confer privately
with counsel and that the practice of opening legal mail in the
prisoner’s presence is specifically designed to protect that
right.

   Other circuit courts have similarly recognized the
importance of this practice. In Jones v. Brown, 461 F.3d 353,
359 (3d Cir. 2006), the Third Circuit recognized, in the
context of a First Amendment challenge, that opening legal
mail outside the addressee’s presence

       deprives the expression of confidentiality and
       chills the inmates’ protected expression,
       regardless of the state’s good-faith
       protestations that it does not, and will not,
       read the content of the communications. This
       is so because the only way to ensure that mail
12              MANGIARACINA V. PENZONE

        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 quotation marks, alteration, and citation omitted).
The Sixth Circuit has similarly acknowledged that a
“prisoner’s interest in unimpaired, confidential
communication with an attorney is an integral component of
the judicial process” and has determined that “[t]here is no
penological interest or security concern that justifies opening
such mail outside of the prisoner’s presence when the
prisoner has specifically requested otherwise.” Sallier v.
Brooks, 343 F.3d 868, 877–78 (6th Cir. 2003); see also, e.g.,
Al-Amin v. Smith, 511 F.3d 1317, 1331 (11th Cir. 2008)
(“[I]nmates have a constitutionally protected right to have
their properly marked attorney mail opened in their
presence.”). The same concerns animate Mangiaracina’s
Sixth Amendment challenge, which is predicated on the
chilling of his protected communications with criminal
attorneys. See Merriweather v. Zamora, 569 F.3d 307, 317
(6th Cir. 2009) (“[O]pening properly marked legal mail alone,
without doing more, implicates both the First and Sixth
Amendments because of the potential for a ‘chilling effect.’”
(quoting Sallier, 343 F.3d at 877)). We therefore now clarify
that, under Nordstrom, prisoners have a Sixth Amendment
right to be present when legal mail related to a criminal
matter is inspected.

                               B.

    Mangiaracina has alleged sufficient facts to state a claim
for improper opening of his incoming legal mail on
November 9, 2012 and March 12, 2013. For each of these
incidents, Mangiaracina attached his grievance form and the
                MANGIARACINA V. PENZONE                    13

response he received from jail officials. For the November 9
incident, the response confirmed that the mail had been
delivered to the jail sealed but had been opened and stapled
shut prior to delivery to Mangiaracina. For the March 12
incident, Mangiaracina specifically alleged in his grievance
that the letter had been “opened [and] taped shut prior to
delivery.” The allegations in the complaint and attached
documents sufficiently allege that these two pieces of mail
were opened outside Mangiaracina’s presence. In the two
responses from the facility, jail officials characterize both
pieces of mail as “legal mail.” At the pleading stage, these
allegations are sufficient to allege that the envelopes were
properly marked as legal mail. Further, Mangiaracina alleges
that he was informed by an officer that jail employees “can
open [legal mail] outside our presence if they want to,” that
there is no law against it, and that “they just do it in our
presence as a [courtesy].” These two counts therefore
sufficiently allege violations of Mangiaracina’s right to have
his confidential, properly-marked legal mail opened in his
presence. For the remaining counts, the district court
correctly determined that Mangiaracina failed to allege that
the mail was properly marked as legal mail, so these counts
were properly dismissed.

    The absence of a clear pattern beyond these two incidents
does not preclude relief. In Nordstrom, we recognized that
even a single instance of improper reading of a prisoner’s
mail can give rise to a constitutional violation. Thus, even
isolated incidents of improper mail opening may, in
appropriate circumstances, be sufficient to allege a Sixth
Amendment violation. Cf. Merriweather, 569 F.3d at 317
(6th Cir. 2009) (“Two or three pieces of [a prisoner’s legal]
mail opened in an arbitrary or capricious way suffice to state
a [First Amendment] claim.”).
14              MANGIARACINA V. PENZONE

    Defendants argue that this case is distinguishable from
Nordstrom because Mangiaracina does not allege that jail
officials ever read his mail. But indeed, how could he? If the
practice of opening legal mail in the presence of the prisoner
is designed to prevent correctional officers from reading it,
then the natural corollary is that a prisoner whose mail is
opened outside his presence has no way of knowing whether
it had been (permissibly) inspected or (impermissibly) read.
In other words, Mangiaracina could not in good faith have
alleged that jail employees had read his mail, since he had no
basis for knowing what had happened to his mail prior to
delivery. See Scott Dodson, New Pleading, New Discovery,
109 Mich. L. Rev. 53, 54 (2010) (“[P]laintiffs proceeding
with claims that depend upon facts exclusively in the hands
(or minds) of defendants 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,
but she may not be able to discover those facts without first
surviving the motion to dismiss.”).

    Nordstrom presented the rare situation in which a prisoner
actually witnessed a correctional officer open and read his
legal mail. To hold that an officer could stop short of a
prisoner’s cell, open and read a letter, and then deliver it to
the prisoner without giving rise to an actionable claim would
elide the central holding of Nordstrom.

    Nor do Defendants identify any legitimate penological
interest that would be served by opening legal mail outside
Mangiaracina’s presence. Jails and prisons may impose
certain restrictions on incoming mail, so long as the
restrictions are “reasonably related to legitimate penological
interests.” Turner v. Safley, 482 U.S. 78, 89 (1987); see
Thornburgh v. Abbott, 490 U.S. 401, 413–14 (1989). We
                MANGIARACINA V. PENZONE                      15

defer to the judgment of corrections authorities, particularly
with regard to matters of security, because we recognize that
“[r]unning a prison [or jail] is an inordinately difficult
undertaking” with which prison or jail authorities have
particular expertise. Turner, 482 U.S. at 84–85. This
deference, however, only comes into play when the facility
offers a legitimate justification for the challenged practice.
“[I]f the prison fails to show that the regulation is rationally
related to a legitimate penological objective, we do not
consider the other factors” of the Turner test. Ashker v.
California Dep’t of Corr., 350 F.3d 917, 922 (9th Cir. 2003).

    Here, the stated policy of the Maricopa County Jails is to
open all legal mail in the presence of the prisoner, and
Defendants have identified no reason in their briefing for
deviating from this policy. No special deference is therefore
required. See Al-Amin, 511 F.3d at 1331 (11th Cir. 2008)
(“[O]pening an inmate’s attorney mail in his presence . . .
‘fully accommodates the prisoner’s rights at de minimis cost
to valid penological interests.’” (quoting Turner, 482 U.S. at
91)).

    Nevertheless, Defendants attempt to argue on appeal that
any deviations were isolated and accidental. We have already
explained why even isolated incidents may support a Sixth
Amendment claim. See Part III.B, supra. Additionally,
whether an isolated incident was also accidental is a question
of fact that we do not resolve on a motion to dismiss. At this
stage, we accept all allegations of material fact as true and
construe them in the light most favorable to the plaintiff.
Nordstrom, 762 F.3d at 908.

   As we have emphasized in the past, “[a] criminal
defendant’s ability to communicate candidly and
16              MANGIARACINA V. PENZONE

confidentially with his lawyer is essential to his defense.”
Nordstrom, 762 F.3d at 910. Mangiaracina alleged that jail
officials had repeatedly opened his legal mail and that an
officer had told him that “there is no law against” opening
legal mail before delivering it to a prisoner and “they just do
it in [the prisoner’s] presence as a courtesy.” Mangiaracina
was justifiably concerned that his attorney-client
communications would not be kept confidential. As a result,
Mangiaracina and his attorneys were “af[]raid to
communicate by mail,” which he described as “hard as I have
so many cases and so much paperwork to go back and forth.”
By necessity, prisoners and pre-trial detainees rely heavily on
the mail for communication with their attorneys. The
Maricopa County jail system does not allow incoming phone
calls or provide access to e-mail, and outgoing phone calls
can only be placed as collect calls. See Maricopa County
Jails, Rules and Regulations for Inmates § 25, at 35.
Moreover, as Mangiaracina noted in his complaint, criminal
cases often involve paperwork that can only feasibly be
transported by mail. As Mangiaracina put it, his “right to
confidentiality and privacy was violated as well as [his]
defense strategy and [his] rights in general were just
shredded.” These allegations are sufficient to state a claim
for violation of Mangiaracina’s Sixth Amendment right to
counsel.

                              C.

    Mangiaracina also argues that the district court erred in
dismissing his First Amendment claim. In Hayes v. Idaho
Correctional Center, No. 14-35078 (9th Cir. Mar. 3, 2017),
filed concurrently with this opinion, we held that the First
Amendment protects prisoners’ right to have legal mail
opened in their presence. Accordingly, we reverse the
                MANGIARACINA V. PENZONE                     17

dismissal of Mangiaracina’s First Amendment claim, and we
remand to the district court for consideration of this claim in
light of Hayes, if necessary.

                      *       *       *

    For the reasons set forth above, we reverse the district
court’s dismissal of Mangiaracina’s Sixth Amendment and
First Amendment claims with respect to the incidents on
November 9, 2012 and March 12, 2013. We affirm the
district court’s dismissal of the remaining counts of alleged
improper mail opening.

   The judgment is AFFIRMED in part, REVERSED in
part, and REMANDED.

   Each party shall bear its own costs on appeal.



BYBEE, Circuit Judge, concurring in the judgment:

    I concur in the conclusion in Part III.A of the majority
opinion, that prisoners have a general Sixth Amendment right
to be present when legal mail related to a criminal matter is
inspected. I write separately because I don’t think the
majority has explained with sufficient clarity what is required
to state a Sixth Amendment claim under 42 U.S.C. § 1983.
I am deeply concerned that the majority opinion’s
characterization 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 allegations, Maj. Op.
10–12, may mislead the district courts and the parties into
thinking that merely negligent conduct is sufficient to state a
18                MANGIARACINA V. PENZONE

claim under 42 U.S.C. § 1983. It is not. If it was once not
clear, it is now beyond question that § 1983 requires proof of
intentional, not merely negligent, acts depriving a party of his
constitutional rights.1

                                  I

    In Paul v. Davis, the Supreme Court rejected the notion
that § 1983 had converted “the Fourteenth Amendment [into]
a font of tort law to be superimposed upon whatever systems
may already be administered by the States.” 424 U.S. 693,
701 (1976). It was easier to say than to enforce, and the
Supreme Court had its own missteps in determining what
kind of constitutional torts § 1983 covers. In 1977, the Court
granted certiorari in Procunier v. Navarette, 434 U.S. 555
(1978), to decide whether prison officials’ negligent handling
of a prisoner’s outgoing mail could be the basis for damages
under § 1983. The Court never got there; instead, it decided
the case on the basis of qualified immunity and left to another
day the critical question of whether § 1983 covered negligent
conduct. Id. at 559 n.6 (1978). See Baker v. McCollan,
443 U.S. 137, 138 (1979) (explaining how Procunier dodged
the question). Two years later, in Parratt v. Taylor, 451 U.S.
527 (1981), the Court considered whether § 1983 was a
proper vehicle to compensate a prisoner under the Due
Process Clause for a negligent loss of his property. The Court
said that “the alleged loss, even though negligently caused,


     1
       Portions of this concurrence are identical to portions of my
concurrence in the companion case, Hayes v. Idaho Correctional Center,
No. 14-35078, — F.3d — (9th Cir. 2017). This case addresses the Sixth
Amendment right to be present when legal mail is inspected by prison
guards; Hayes addresses the First Amendment right to be present. The
principles are nearly the same, and my concerns are the same.
                MANGIARACINA V. PENZONE                      19

amounted to a deprivation” and was actionable under § 1983.
Id. at 536–37. Five years later, the Court overruled Parratt
in Daniels v. Williams, 474 U.S. 327, 330–31 (1986). This
time the Court concluded that “the Due Process Clause is
simply not implicated by a negligent act of an official causing
unintended loss of or injury to life, liberty, or property.” Id.
at 328. The Court stated that “lack of due care suggests no
more than a failure to measure up to the conduct of a
reasonable person. To hold that injury caused by such
conduct is a deprivation within the meaning of the Fourteenth
Amendment would trivialize the centuries-old principle of
due process of law.” Id. at 332. “Our Constitution,” the
Court wrote, “does not purport to supplant traditional tort law
in laying down rules of conduct to regulate liability for
injuries that attend living together in society.”            Id.
Nevertheless, the Court would “not rule out the possibility
that there are other constitutional provisions that would be
violated by mere lack of care.” Id. at 334.

    Notwithstanding the Court’s reservation of judgment,
Daniels’s logic has since been extended, amendment by
amendment, to other fundamental rights protected by the Bill
of Rights. And, so far as I can determine, no court has held
that a § 1983 claim can be proved by mere negligent conduct.
For example, in the First Amendment free exercise context,
negligence on the part of a government official is not enough
to show a violation of constitutional rights sufficient to state
a claim for relief under § 1983. See Gallagher v. Shelton,
587 F.3d 1063, 1070 (10th Cir. 2009) (dismissing § 1983
claim because “an isolated act of negligence would not
violate an inmate’s First Amendment right to free exercise of
religion”); Lovelace v. Lee, 472 F.3d 174, 201 (4th Cir. 2006)
(“[N]egligent acts by officials causing unintended denials of
religious rights do not violate the Free Exercise Clause.”);
20              MANGIARACINA V. PENZONE

Lewis v. Mitchell, 416 F. Supp. 2d 935, 944 (S.D. Cal. 2005)
(holding more than negligence is required to state a valid
§ 1983 claim for violation of prisoner’s First Amendment
right to freely exercise religion); Shaheed v. Winston, 885 F.
Supp. 861 (E.D. Va. 1995) (finding “defendants [sic] actions
were negligent, not intentional, and the plaintiffs may not rely
on § 1983 as a basis for this claim”), aff’d on other grounds,
161 F.3d 3 (4th Cir. 1998) (unpublished).

    Similarly, in access-to-court cases, also under the First
Amendment, the circuit courts have uniformly held that
negligence is not sufficient to raise a claim under § 1983.
The Seventh Circuit, for example, has found that “a mere
isolated incident of negligence . . . does not rise to the level
of a constitutional violation actionable under section 1983.”
Kincaid v. Vail, 969 F.2d 594, 602 (7th Cir. 1992); see also
Crawford-El v. Britton, 951 F.2d 1314, 1318 (D.C. Cir. 1991)
(holding that intentional interference with access to court
violates Constitution)); Pink v. Lester, 52 F.3d 73, 76 (4th
Cir. 1995) (holding that negligent conduct in misrouting a
form does not violate the First Amendment’s right to
petition).

    In the Fourth Amendment context, the Supreme Court has
held that “[v]iolation of the Fourth Amendment requires an
intentional acquisition of physical control. A seizure occurs
even when an unintended person or thing is the object of the
detention or taking, but the detention or taking itself must be
willful.” Brower v. Cty. of Inyo, 489 U.S. 593, 596 (1989)
(citations omitted). The Supreme Court found support for
this holding in the text of the Fourth Amendment, since
seizure does not imply an “unknowing act,” as well as the
history of the Fourth Amendment, which was addressed to
“‘misuse of power,’ not the accidental effects of otherwise
                MANGIARACINA V. PENZONE                     21

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

       [I]f a parked and unoccupied police car slips
       its brake and pins a passerby against a wall, it
       is likely that a tort has occurred, but not a
       violation of the Fourth Amendment. And the
       situation would not change if the passerby
       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 constables. It is
       clear, in other words, that a Fourth
       Amendment seizure does not occur whenever
       there is a governmentally caused termination
       of an individual’s freedom of movement (the
       innocent passerby), nor even whenever there
       is a governmentally caused and
       governmentally desired termination of an
       individual’s freedom of movement (the
       fleeing felon), but only when there is a
       governmental termination of freedom of
       movement through means intentionally
       applied.

Id. at 596–97. We have similarly held that to state a Fourth
Amendment claim against a government investigator for
submitting false and material information in a warrant
affidavit, “a § 1983 plaintiff must show that the investigator
‘made deliberately false statements or recklessly disregarded
the truth in the affidavit’ and that the falsifications were
‘material’ to the finding of probable cause.” Galbraith v. Cty.
22               MANGIARACINA V. PENZONE

of Santa Clara, 307 F.3d 1119, 1126 (9th Cir. 2002)
(emphasis added) (citation omitted).

    In the Eighth Amendment context, the Supreme Court has
found that more then negligence is required to raise a claim
for cruel and unusual punishment. Wilson v. Seiter, 501 U.S.
294, 297 (1991); Estelle v. Gamble, 429 U.S. 97, 106 (1976).
In Estelle, the Supreme Court rejected an Eighth Amendment
claim based on inadvertent failure to provide adequate
medical care:

        [A] complaint that a physician has been
        negligent in diagnosing or treating a medical
        condition does not state a valid claim of
        medical mistreatment under the Eighth
        Amendment. Medical malpractice does not
        become a constitutional violation merely
        because the victim is a prisoner. In order to
        state a cognizable claim, a prisoner must
        allege acts or omissions sufficiently harmful
        to evidence deliberate indifference to serious
        medical needs.

429 U.S. at 107. In Wilson, the Court added that “‘[i]t is only
such indifference’ that can violate the Eighth Amendment;
allegations of ‘inadvertent failure to provide adequate
medical care’ or of a ‘negligent . . . diagnos[is]’ simply fail to
establish the requisite culpable state of mind.” 501 U.S. at
297 (quoting Estelle, 429 U.S. at 105–06) (alteration in
original) (citations omitted).

   These same considerations should inform our judgment
about the Sixth Amendment right to be present when legal
mail related to a criminal matter is inspected. There is
                MANGIARACINA V. PENZONE                       23

nothing about the attorney-client relationship that suggests
that merely inadvertent conduct that touches on that
relationship is a constitutional violation. The courthouse
custodian who accidentally walks in on an attorney-client
conference may “chill” their conversation, but—without
more—has done nothing actionable under § 1983. Similarly,
the mail clerk who accidentally opens legal mail, seals it up,
and notes “opened by mistake, and not read” has not violated
the Sixth Amendment, even if the prisoner-recipient is
unhappy to receive his mail in that format. If the prisoner
doubts the veracity of the mail clerk, or has seen a broad
pattern of improperly opened legal mail, the prisoner should
allege that the act is intentional or that an inference of intent
should be drawn from the pattern and practice. To fail to
recognize the importance of alleging intentional conduct
would be to risk strict liability claims under § 1983,
something no court has ever approved.

                               II

    Applying the above principles to Mangiaracina’s claim,
Mangiaracina has alleged a “policy and practice” of illegally
opening inmates mail. He alleged at least four instances
where his legal mail was opened outside his presence and that
prison employees stated they can open legal mail outside the
prisoner’s presence “if they want to” and there is “no law
against it.”     These are sufficient facts to allege a
constitutional violation at the pleading stage of the litigation
for the opening of Mangiaracina’s incoming legal mail on
November 9, 2012 and March 12, 2013.
24                 MANGIARACINA V. PENZONE

                                    A

    The majority opinion focuses on whether the number of
incidents was sufficient to state a cause of action but
overlooked the question of the nature of the incidents alleged.
The opinion concludes that two incidents in four months
“sufficiently allege” violations of Mangiaracina’s Sixth
Amendment right to counsel,2 and “[t]he absence of a clear
pattern beyond these two incidents does not preclude relief.”
Maj. Op. at 13. To reach this conclusion, the opinion relies
heavily on our recent decision in Nordstrom for the
proposition that a “single instance” of improper reading of a
prisoner’s mail can give rise to a constitutional violation.
Maj. Op. at 13 (citing Nordstrom, 762 F.3d 903). However,
the single incident in Nordstrom was sufficient because it
“was not simply a one-time mistake or confusion over the
contours of the [prision] policy . . . the [prison d]irector ha[d]
personally informed [Nordstrom] that prison officials are
permitted to read his legal mail.” Nordstrom, 762 F.3d at
911–12. There, as our opinion noted, the prison officials
openly read Nordstrom’s mail in front of him and over his
protests. Id. at 906. And, the prison’s response to the
prisoner’s grievance was not that this was a mere accident or
an isolated instance of reading legal mail, but rather that its
policy permitted guards to read legal mail as long as it was


     2
       The majority notes Defendants have not offered “any legitimate
penological interest that would be served by” opening Mangiaracina’s
legal mail. Maj. Op. at 14. However, the test created in Turner v. Safley,
482 U.S. 78 (1987), was directed at prison regulations. Id. at 89. I am not
sure how the test even applies to inadvertent conduct. What penological
reason can the State offer if someone opened the letter by mistake? The
opinion thus strongly suggests that mistake or inadvertence is not a
legitimate penological reason. If so, Mangiaracina’s claim nearly sounds
in strict liability.
                MANGIARACINA V. PENZONE                     25

done in the prisoner’s presence. Id. at 907 (noting that the
prison director’s response to grievance reasoned that “[s]taff
is authorized to scan and is not prohibited from reading the
mail to establish the absence of contraband and ensure the
content of the mail is of legal subject matter” (alteration in
original)). The prison regulations, in fact, prohibited reading
outgoing attorney-client correspondence. Id. at 910–11.
Nordstrom is consistent with the principle that § 1983 covers
only intentional acts affecting constitutional rights.

    The majority opinion concludes that “even isolated
incidents of improper mail opening may, in appropriate
circumstances, be sufficient to allege a Sixth Amendment
violation.” Maj. Op. at 13. The majority does not outline
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 or three pieces of [a
prisoner’s legal] mail opening in an arbitrary or capricious
way suffice to state a [Sixth] Amendment claim.” Maj. Op.
at 13 (alteration in original). I regret that the majority has
introduced an “arbitrary or capricious” standard into the
evaluation of § 1983 claims under the Sixth Amendment.
That standard is well-known in the administrative law
context, where it is prescribed by statute, 5 U.S.C.
§ 706(2)(A), but it is not a familiar standard for judging
constitutional torts. The majority borrows the phrase from
the Sixth Circuit, where it apparently originated in Parrish v.
Johnson, 800 F.2d 600 (6th Cir. 1986). See id. at 604
(“[T]his case concerns Turner’s arbitrary opening and reading
of Giles’ personal mail. . . . A capricious interference with a
prisoner’s incoming mail based upon a guard’s personal
prejudices violates the First Amendment.”). But we shouldn’t
mistake “arbitrary and capricious” conduct in this context as
something less than “intentional conduct.” The case that gave
26              MANGIARACINA V. PENZONE

us the unfortunate phrase, Parrish, involved intentional
conduct: the prisoner, who was paraplegic, “testified that [a
prison guard] would randomly open and read his personal
mail and that [the guard] would also taunt him by waving the
open mail in front of him.” Id. at 603. The court observed
that the case did not involve “a regularly applied regulation
. . . or a random interference with a prisoner’s mail.” Id. at
604. Parrish involved an allegation that the defendant had
intentionally violated the prisoner’s rights. Other Sixth
Circuit cases, which have continued to use the imprecise
“arbitrary and capricious” language, also involve allegations
of intentional or pattern-and-practice conduct. See, e.g.,
Merriweather, 569 F.3d at 317 (finding that sixteen instances
of improperly opened legal mail were sufficient to state a
cause of action); Sallier v. Brooks, 343 F.3d 868, 872, 879–80
(6th Cir. 2003) (upholding a damage award where the
prisoner could prove that officials had deliberately opened
three pieces of legal mail and the prisoner “had filed a written
request to have such mail opened only in his presence”);
Lavado v. Keohane, 992 F.2d 601, 610 (6th Cir. 1993)
(holding it was sufficient that the prisoner alleged that a
Bureau of Prisons employee had “blatant disregard for
established regulations [that gave] rise to an inference of
arbitrary or capricious action” and noting that the prisoner
had alleged that defendant “read Lavado’s properly marked
correspondence and proceeded to give Lavado his business
card so Lavado would be able to spell his name correctly
when Lavado sued”); Reneer v. Sewell, 975 F.2d 258, 259–60
(6th Cir. 1992) (“[I]f the mail was actually read, and this
action was motivated by retaliation as plaintiff alleges, such
behavior by prison officials might [be] . . . arbitrary action
. . .”). The decisions cited by the majority from other circuits
are not to the contrary. See, e.g., Al-Amin v. Smith, 511 F.3d
1317, 1334 (11th Cir. 2008) (finding prisoner alleged “pattern
                MANGIARACINA V. PENZONE                       27

and practice 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 mail outside the
presence of prisoners in order to screen for anthrax and “[a]
state pattern and practice, or, as is the case here, explicit
policy, of opening legal mail outside the presence of the
addressee inmate” violates constitutional rights); Davis v.
Goord, 320 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 ‘regularly and unjustifiably interfered with the
incoming legal mail.’” (citations omitted)).

    I wish the majority had simply stated the obvious for the
benefit of the parties and the district court: in order to
survive a motion to dismiss—much less prevail on the
merits—the plaintiff must allege some kind of deliberate
action on the part of prison officials. An allegation that
prison officials opened a prisoner’s legal mail, without an
allegation that the mail was deliberately and not negligently
opened, is not sufficient to state a cause of action under
§ 1983.

                               B

    The opinion concludes that Mangiaracina has alleged
sufficient facts to state a claim for two instances of improper
legal mail opening (November 9, 2012 and March 12, 2013).
In both instances, the prison responded to Mangiaracina’s
grievance by noting the mail had been delivered from the off-
site mail room to the Fourth Avenue Jail, where he was
housed, “sealed and un-opened.” Mangiaracina alleges that
sometime between delivery to the jail and delivery to
Mangiaracina’s pod, the mail was improperly opened “in the
28               MANGIARACINA V. PENZONE

jail somewhere mail does not get opened.” The prison could
not provide a reason it was opened.

    These allegations, by themselves, are not sufficient to
state a cause of action under § 1983. In the end, however, I
join the majority in concluding that Mangiaracina has said
enough at this stage of the proceedings to allege a
constitutional tort. As the majority explains, Mangiaracina
also pled that his legal mail continually gets opened and, in
response to his grievance, an officer told him “they can open
[legal mail] outside [a prisoner’s] presence if they want to.”
The officer said “there is no law against it[,] they just do it in
[the prisoner’s] presence as a courtesy.” The official’s
statements indicate the conduct was “not simply a one-time
mistake or confusion over the contours of the [Maricopa]
policy.” Nordstrom, 762 F.3d at 911. Although Maricopa
County Jails rules and regulations comply with the
requirements of today’s holding, Maj. Op. at 5, that written
policy alone is insufficient if prison staff are intentionally
ignoring that policy since it is just “a courtesy” and not the
“law.” Showing a “blatant disregard for established
regulations” is sufficient to raise an inference of intentional
conduct to survive a motion to dismiss. Lavado, 922 F.2d at
611.

    At this stage in the litigation, we must accept all
allegations of material fact as true and construe them in the
light most favorable to the plaintiff. Nordstrom, 762 F.3d at
908. Construing Mangiaracina’s pro se complaint liberally,
I conclude that Mangiaracina has sufficiently claimed that
someone is intentionally, rather than merely accidentally,
               MANGIARACINA V. PENZONE                   29

opening his legal mail in violation of his Sixth Amendment
rights. He may or may not be able to prove his claim, but he
has said just enough to get the opportunity.

   On that basis, I concur in the judgment.
