                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT

 MICHAEL T. HAYES,                               No. 14-35078
              Plaintiff-Appellant,
                                                   D.C. No.
                    v.                        1:12-cv-00351-EJL

 IDAHO CORRECTIONAL CENTER;
 IDAHO DEPARTMENT OF                               OPINION
 CORRECTIONS; SHANNON
 CLUNEY; LISA BURKE; JANE
 DOES, 1–3,
            Defendants-Appellees.


        Appeal from the United States District Court
                  for the District of Idaho
         Edward J. Lodge, 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, United States District Judge for the
Northern District of California, sitting by designation.
2          HAYES V. IDAHO CORRECTIONAL CENTER

                            SUMMARY**


                       Prisoner Civil Rights

    The panel affirmed in part and reversed in part the district
court’s dismissal of a complaint pursuant to 28 U.S.C.
§ 1915A, and remanded in an action brought pursuant to 42
U.S.C. § 1983 by a prisoner who alleged First Amendment
claims arising from prison officials opening his legal mail
outside his presence.

    The panel held that prisoners have a protected First
Amendment interest in having properly marked legal mail
opened only in their presence. The panel further held that a
plaintiff need not allege a longstanding practice of violating
his First Amendment rights in order to state a claim for relief
on a direct liability theory, nor does a plaintiff need to show
any actual injury beyond the free speech violation itself to
state a constitutional violation.

    The panel held that the district court properly dismissed
two other counts of alleged improper mail opening because
plaintiff had not met his burden of plausibly alleging that the
item opened outside his presence was legal mail, and because
mail from the United States courts is not legal mail.

    The panel held that plaintiff waived any challenge to the
dismissal of his policy-based claims by failing to discuss the
claims in his opening brief.


    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
         HAYES V. IDAHO CORRECTIONAL CENTER                   3

    Concurring in the judgment, Judge Bybee agreed with the
conclusion that prisoners have a general First Amendment
right to be present when legal mail related to a civil matter is
inspected. He wrote separately to clarify that merely
negligent conduct on the part of prison officials is not
sufficient to state a claim.


                         COUNSEL

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

Jacob H. Naylor (argued) and Kirtlan G. Naylor, Naylor &
Hales P.C., Boise, Idaho, for Defendants-Appellants Idaho
Correctional Center and Lisa Burke.

Leslie M. Hayes (argued), Deputy Attorney General; Steven
L. Olsen, Chief of Civil Litigation; Lawrence G. Wasden,
Attorney General; Office of the Attorney General, Boise,
Idaho; for Defendants-Appellees Idaho Department of
Corrections and Shannon Cluney.
4        HAYES V. IDAHO CORRECTIONAL CENTER

                        OPINION

PAEZ, Circuit Judge:

    Michael T. Hayes appeals the dismissal of his First
Amendment challenge to prison officials opening his legal
mail outside his presence. Hayes’s complaint alleged four
instances of prison employees delivering legal mail addressed
to Hayes that had been opened before delivery. The
complaint also alleged that the prison and prison officials
maintained a policy or custom of ignoring the improper
handling of legal mail. The district court dismissed the
complaint at the pre-screening stage pursuant to 28 U.S.C.
§ 1915A. On appeal, Hayes argues that the district court
erred in dismissing his First Amendment claims against
Defendant Lisa Burke, a mail room supervisor, and his
policy-based claims against Defendants Shannon Cluney,
Idaho Department of Corrections (“IDOC”), and Idaho
Correctional Center (“ICC”). See Monell v. Dep’t of Soc.
Servs., 436 U.S. 658 (1978). We have jurisdiction under
28 U.S.C. § 1291, and we affirm in part, reverse in part, and
remand.

                             I.

   At all times relevant to this appeal, Hayes was housed at
ICC, a privately run IDOC facility. Hayes alleges in his
Second Amended Complaint, the operative complaint, that
ICC mail room staff illegally opens inmates’ legal mail,
“especially inmates who are charged with sex offences [sic].”
           HAYES V. IDAHO CORRECTIONAL CENTER                           5

He alleges that Defendant Burke improperly opened Hayes’s
legal mail outside his presence on four occasions.1

    On December 28, 2010, Hayes received a piece of mail
that had already been opened. The envelope was “clearly
marked as attorneys at law,” and the complaint identified the
law firm that had sent the mail. Hayes filed a grievance
regarding this incident, and the prison responded that “there
was a piece of tape on the envelope but [prison officials]
could not tell if it were [sic] sent through the mail this way or
opened by mistake here or at another location.”2

    On March 2, 2011,3 Hayes received another piece of legal
mail that had been opened before he received it. Hayes filed
a grievance related to this incident, and the prison’s response
stated: “This piece of mail was opened in error and not read.”

     Hayes alleges that on June 2, 2011, another piece of “mail
that was clearly marked as legal mail” was opened outside his
presence. His complaint alleged that “this legal mail was sent
. . . through the prison’s regular mail systems” and “not
through case managers or correctional counselors who always
usually deliver legal mail to inmates.” The prison’s response
to his grievance indicated that “[t]he item [prison staff]



    1
       We accept as true all allegations of material facts in the Second
Amended Complaint, and we construe the facts in the light most favorable
to the plaintiff. Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014).
    2
      Hayes attached the grievances he filed, as well as the facility’s
responses, to the Second Amended Complaint.
   3
     The grievance form indicates that the incident actually took place on
March 1, 2011.
6        HAYES V. IDAHO CORRECTIONAL CENTER

opened on June 2 was not from an attorney or from the
courts, therefore it is not legal mail per [our] policy.”

    Finally, on June 13, 2011, “legal mail was once again
delivered to” Hayes which had been “opened before it was
delivered.” Hayes attached a grievance form related to this
incident. The response from the facility indicated that “[t]he
item received on June 13 was from the US Courts and logged
opened in error. This issue has been discussed with staff.”

    The complaint identified Hayes’s cell mates at the time of
the incidents as eyewitnesses, and Hayes attached a
supporting affidavit from Robert Lavin, his cell mate during
two of the incidents. Hayes also alleged that “a lot of
correspondence that qualified as constitutionally protected
legal mail [had been] illegally opened by ICC mail room
staff.” Hayes explained that Defendant Cluney, the Deputy
Warden of Virtual Prisons at IDOC, “has not stopped his
subordinates from creating a ‘policy or custom’” of illegally
opening legal mail. Hayes described this policy as
“longstanding pervasive and well documented.” He also
identified five attorneys who had sent mail to Hayes that had
been illegally opened over the years. Hayes did not allege
that any of the legal mail that had been opened was related to
a criminal matter; rather, the mail appears to have been
related to civil matters.

    On September 13, 2011, Hayes filed a complaint pursuant
to 28 U.S.C. § 1983 in Idaho state court. Defendants
removed the case to federal court. In its initial review order,
the district court dismissed Hayes’s complaint with leave to
amend. The court found that three of the claims of illegal
mail opening had deficiencies that Hayes could attempt to
cure in an amended complaint, and that the remaining
           HAYES V. IDAHO CORRECTIONAL CENTER                            7

incident (on March 2, 2011) “appear[ed] to be an isolated
incident” insufficient to state a constitutional claim. After
Hayes filed a Second Amended Complaint,4 the district court
dismissed the complaint with prejudice. The court explained
that the complaint did not identify the sender of the June 2,
2011 or June 13, 2011 mail, and the grievance response for
the June 13, 2011 mail indicated that it was from the United
States courts rather than from an attorney. With respect to
the December 28, 2010 incident and the March 2, 2011
incident, the court found that Hayes had pled sufficient facts
to allege improper mail opening but that these were isolated
incidents insufficient to state a constitutional claim against
Defendant Burke. The court also dismissed Hayes’s Monell
policy or custom claims against Defendants Cluney, IDOC,
and ICC because Hayes had simply repeated the claims set
forth in the original complaint, which the court had dismissed
as insufficient in its initial review order. Hayes timely
appealed.

                                   II.

    We have jurisdiction pursuant to 28 U.S.C. § 1291, and
we review de novo a district court’s dismissal for failure to
state a claim under 28 U.S.C. § 1915A. Resnick v. Hayes,
213 F.3d 443, 447 (9th Cir. 2000). “Pro se complaints are
construed liberally and may only be dismissed if it appears
beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.”



    4
      Hayes filed a first amended complaint that was virtually identical to
the original complaint, but he subsequently sought leave to file a second
amended complaint, which the district court granted. The court never
formally reviewed the first amended complaint.
8         HAYES V. IDAHO CORRECTIONAL CENTER

Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014)
(internal quotation marks omitted).

                               III.

                                A.

    Hayes argues that the First Amendment protects his right
to be present when his civil legal mail is opened. We agree.

    In Wolff v. McDonnell, 418 U.S. 539 (1974), the Supreme
Court addressed a challenge to a rule that allowed prison
guards to open all legal mail, but only in the presence of the
prisoner to whom the mail was addressed. The Court held
that the rule was permissible because “the inmate’s presence
insures that prison officials will not read the mail,” and
therefore would not “chill [attorney-client] communications.”
Id. at 577 (emphasis added). The Court noted, however, that
“the constitutional status of the rights asserted . . . is far from
clear,” id. at 575, and the Court did not define the source or
scope of these rights since it concluded that the inmate’s
presence adequately protected any rights at stake. After
Wolff, the Supreme Court clarified that a regulation that
burdens prisoners’ constitutional rights is “valid if it is
reasonably related to legitimate penological interests.”
Turner v. Safley, 482 U.S. 78, 89 (1987). In Thornburgh v.
Abbott, 490 U.S. 401, 413–14 (1989), the Court explained
that the Turner test applies to restrictions on incoming mail
to prisoners.

    In Nordstrom v. Ryan, we recently held that a single
instance of a guard reading a prisoner’s mail was sufficient
to establish a violation of the Sixth Amendment right to
           HAYES V. IDAHO CORRECTIONAL CENTER                             9

counsel.5 762 F.3d 903. We recognized that Nordstrom’s
allegation “that his right to privately confer with counsel has
been chilled” represented “a plausible consequence of the
intentional reading of his confidential legal mail.” Id. at 911;
see also Casey v. Lewis, 43 F.3d 1261, 1269 (9th Cir. 1994)
(noting in the context of an access-to-courts claim that “legal
mail may not be read nor copied without the permission of
the inmate”), rev’d on other grounds, 518 U.S. 343 (1996).
In Mangiaracina v. Arpaio, No. 14-15271 (9th Cir. Mar. 3,
2017), filed concurrently with this opinion, we held that the
Sixth Amendment, in addition to prohibiting guards from
reading prisoner legal mail, also protects the right of a
prisoner to be present while legal mail relating to criminal
proceedings is opened.

    In both Nordstrom and Mangiaracina, we declined to
analyze the plaintiffs’ claims under any constitutional
provisions besides the Sixth Amendment, since the claims
related to correspondence about criminal matters and
therefore fell squarely within the scope of that Amendment.


    5
      We previously addressed prisoners’ legal mail rights in Keenan v.
Hall, 83 F.3d 1083, 1094 (9th Cir. 1996), amended on denial of reh’g by
135 F.3d 1318 (9th Cir. 1998), in which we held that mail from a court
rather than a lawyer did not qualify as protected legal mail. We did not
address prisoners’ rights with respect to clearly marked legal mail from a
lawyer, and we explicitly declined 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.” Id. In Stevenson v.
Koskey, 877 F.2d 1435, 1441 (9th Cir. 1989), a probation officer visiting
a prisoner handed a piece of legal mail to a guard, who then opened the
mail outside the prisoner’s presence. We recognized 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” but concluded that the named defendant—the
probation officer—could not be held liable.
10        HAYES V. IDAHO CORRECTIONAL CENTER

Mangiaracina, __ F.3d at __; Nordstrom, 762 F.3d at 909.
We recognized in Nordstrom, however, that other courts have
“analyzed claims regarding the confidentiality of attorney-
inmate communications under various constitutional
principles, including the First Amendment right to freedom
of speech and the Fourteenth Amendment rights to due
process and access to the courts, or some combination of
these rights.” 762 F.3d at 909.6

    The Supreme Court has recognized that prisoner
correspondence at least implicates First Amendment rights.
In Procunier v. Martinez, 416 U.S. 396, 408 (1974),
overruled on other grounds by Thornburgh, 490 U.S. 401, the
Court held that censorship of correspondence between
inmates and those outside of prison impermissibly burdened
the First Amendment free speech rights of the non-prisoners,
regardless of whether the inmates’ rights were implicated.
Later, in Turner, 482 U.S. at 84–91, the Court recognized that
a statewide rule barring prisoner-to-prisoner correspondence
across penal institutions implicated prisoners’ First
Amendment rights. We have also recognized the First
Amendment rights of prisoners to “send and receive mail,”
Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995), though
we have not yet addressed prisoners’ First Amendment right
to have legal mail opened in their presence.

    Relying in part on Procunier and Turner, several of our
sister circuits have held that opening legal mail outside the
presence of the addressee inmate burdens First Amendment


     6
     Because Hayes argued only that his confidential attorney-client
communications are protected by the First Amendment, we do not address
whether additional constitutional provisions also protect these
communications.
         HAYES V. IDAHO CORRECTIONAL CENTER                11

rights. The Third Circuit has reasoned that a state policy or
custom of

       opening legal mail outside the presence of the
       addressee inmate interferes with protected
       communications, strips those protected
       communications of their confidentiality, and
       accordingly impinges upon the inmate’s right
       to freedom of speech. The practice 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 is not read when
       opened is to require that it be done in the
       presence of the inmate to whom it is
       addressed.

Jones v. Brown, 461 F.3d 353, 359 (3d Cir. 2006) (internal
quotation marks and alterations omitted). The Eleventh
Circuit has observed that “given their incarceration and often
distance from their attorneys, prisoners’ use of the mail to
communicate with their attorneys about their criminal cases
may frequently be a more important free speech right than the
use of their tongues.” Al-Amin v. Smith, 511 F.3d 1317,
1333–34 (11th Cir. 2008). In addition to the Third and
Eleventh Circuits, the Second, Sixth, and Tenth Circuits have
recognized that the opening of legal mail outside of a
prisoner’s presence implicates First Amendment rights. See
Merriweather v. Zamora, 569 F.3d 307, 317 (6th Cir. 2009)
(“[W]e have held that improperly opening a prisoner’s mail
does implicate at least the First Amendment.”); Davis v.
Goord, 320 F.3d 346, 351 (2d Cir. 2003) (explaining that “a
12       HAYES V. IDAHO CORRECTIONAL CENTER

prisoner’s right to the free flow of incoming and outgoing
mail is protected by the First Amendment” and that “a
prisoner has a right to be present when his legal mail is
opened,” but noting that “an isolated incident of mail
tampering is usually insufficient to establish a constitutional
violation”); Ramos v. Lamm, 639 F.2d 559, 582 (10th Cir.
1980) (holding that, at least where the prison offered no
justification for opening prisoners’ mail to attorneys outside
their presence, this practice was “invalid under the First and
Fourteenth Amendments”), abrogated in part on other
grounds by Thornburgh, 490 U.S. 401.

    The reasoning of these decisions by our sister circuits is
persuasive. When a prisoner receives confidential legal mail
that has been opened and re-sealed, he may understandably be
wary of engaging in future communication about privileged
legal matters. Moreover, prisoners’ communications with
civil attorneys often relate to lawsuits challenging the
conditions of confinement in the prison or wrongful conduct
of prison employees. When prison officials open legal mail,
prisoners may justifiably be concerned about retaliation from
the very officers the prisoner has accused of wrongdoing.
Prisoners may also worry that the contents of the letters could
be passed along to the facility’s lawyers, who would learn of
the prisoner’s legal strategy. See Gomez v. Vernon, 255 F.3d
1118, 1123–24 (9th Cir. 2001).

    To make matters worse, prisoners’ avenues of
confidential communication with attorneys are limited. In
Idaho, the current policy on telephones and electronic
communications provides that “[a]ttorney communications
using email, digital photograph, and video messaging are not
           HAYES V. IDAHO CORRECTIONAL CENTER                        13

privileged, are archived and may be reviewed.”7 Idaho
Department of Corrections Standard Operating Procedure,
Telephones and Electronic Communications:
Inmate, Control No. 503.02.01.001, available at
https://www.idoc.idaho.gov/content/policy/3743, at 7.
“Voice messages left by an attorney for an offender are not
privileged and are recorded and can be monitored.” Id. at 6.
Beyond these regulatory barriers, legal representation is by
nature a document-heavy enterprise, and the contents of
documents cannot always be communicated by phone and
should not always be communicated in a non-privileged
email. In addition, some prisoners are represented by counsel
from a different part of the state or from out of state, making
in-person visits costly and time consuming. Hayes, for
example, was incarcerated in Boise but was represented in
this appeal by a Seattle-based attorney. These factors, present
in Idaho and elsewhere, highlight the immense
undertaking—for both attorney and client—of litigating from
prison, and the importance of confidential legal mail in
making that undertaking feasible.

    As we have previously observed, “[i]t takes no stretch of
imagination to see how an inmate would be reluctant to
confide in his lawyer about the facts of the crime, perhaps
other crimes, possible plea bargains, and the intimate details
of his own life and his family members’ lives, if he knows
that a guard is going to be privy to them, too.” Nordstrom,


    7
       We take judicial notice of the IDOC’s Standard Operating
Procedure, as it 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).
14       HAYES V. IDAHO CORRECTIONAL CENTER

762 F.3d at 910. Because “the only way to ensure that mail
is not read when opened is to require that it be done in the
presence of the inmate to whom it is addressed,” Jones,
461 F.3d at 359 (quoting Bieregu v. Reno, 59 F.3d 1445, 1456
(3d Cir. 1995)), a prisoner who receives legal mail that has
been opened and re-sealed may be justifiably concerned about
the confidentiality of his communications. We therefore
agree with the conclusion of the Sixth Circuit that “[t]wo or
three pieces of mail opened in an arbitrary or capricious way
suffice to state a claim.” Merriweather, 569 F.3d at 318.

   In sum, we recognize that prisoners have a protected First
Amendment interest in having properly marked legal mail
opened only in their presence.

                             B.

    We turn to whether Hayes alleged facts sufficient to state
a First Amendment claim. We hold that he has.

    The district court properly dismissed two counts of
alleged improper mail opening. For the incident that Hayes
alleged occurred on June 2, 2011, the response from the
facility indicated that the item was not legal mail. In his
Second Amended Complaint, Hayes did not clarify who sent
the mail or whether it was properly marked as “legal mail.”
The district court therefore properly concluded that Hayes
had not met his burden of plausibly alleging that the item
opened outside his presence was protected legal mail. See
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The
district court also properly dismissed Hayes’s claim with
respect to the June 13, 2011 incident because the grievance
response indicates that the mail was from the United States
courts. “Mail from the courts, as contrasted to mail from a
         HAYES V. IDAHO CORRECTIONAL CENTER                  15

prisoner’s lawyer, is not legal mail.” Keenan v. Hall, 83 F.3d
1083, 1094 (9th Cir. 1996). Accordingly, the First
Amendment does not prohibit opening such mail outside the
recipient’s presence.

    The other two instances alleged by Hayes, however, do
state a First Amendment claim. With respect to the mail that
Hayes received on December 28, 2010, Hayes alleged that the
sender was a law firm. The facility’s response to Hayes’s
grievance regarding the incident acknowledged that “there
was a piece of tape on the envelope” but stated that prison
officials “could not tell if it were [sic] sent through the mail
this way or opened by mistake here or at another location.”
Hayes both identified the sender of the mail and plausibly
alleged that it had been opened by a prison official outside his
presence.

    With respect to the mail that Hayes received on March 2,
2011, he similarly alleged that his legal mail had been opened
outside his presence. The facility’s response to his grievance
stated: “This piece of mail was opened in error and not read.”
Prison officials then confirmed that they had opened the piece
of legal mail that Hayes received on March 2, 2011 outside
his presence.

    The district court held that because the December 28,
2010 incident and the March 2, 2011 incident were isolated
interferences with Hayes’s mail, Hayes could not proceed on
his First Amendment claim against Defendant Burke. But a
plaintiff need not allege a longstanding practice of violating
his First Amendment rights in order to state a claim for relief
on a direct liability theory. In Sallier v. Brooks, 343 F.3d
868, 879 (6th Cir. 2003), the Sixth Circuit upheld a jury’s
award of punitive and compensatory damages against two
16        HAYES V. IDAHO CORRECTIONAL CENTER

prison mail room clerks for three counts of improper mail
opening where, in all three instances, “the defendants listed
the letters on the legal mail log as legal mail” and “simply
failed to follow established procedures requiring [the
plaintiff’s] presence before the letters were opened.” The
court held that “[s]uch a failure, after recognition of the
letters as protected legal mail, is objectively unreasonable.”
Id. at 880. Later, in Merriweather, 569 F.3d at 317, the Sixth
Circuit concluded that “[t]he defendants’ admission that
[prison] employees improperly opened four pieces of legal
mail is . . . enough alone to state a claim” (footnote omitted).

    Defendants argue that Hayes has failed to allege anything
beyond negligence. As noted above, however, Hayes has
alleged that ICC mailroom staff illegally opened inmates’
legal mail, “especially inmates who are charged with sex
offences [sic].” While Hayes does not allege that he was
convicted of a sex offense, we take judicial notice of the
fact that he was convicted of “lewd and lascivious
conduct” with a “minor under 16.”8 IDOC Offender Search
Details, Idaho Dep’t of Corrections (Nov. 10, 2016),
available at https://www.idoc.idaho.gov/content/prisons/
offender_search/detail/20633. Reading Hayes’s pro se
complaint generously, as we must, we therefore conclude
that Hayes has alleged a plausible claim that his protected
mail was arbitrarily or capriciously opened outside his
presence on two separate occasions. Nothing further is
required.



     8
      We take judicial notice of the IDOC’s Offender Database, as it 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).
           HAYES V. IDAHO CORRECTIONAL CENTER                         17

    Nor is Hayes required to “show any actual injury beyond
the free speech violation itself to state a constitutional claim.”
Al-Amin, 511 F.3 at 1333.9 Rather, the injury that Hayes
alleges is “that his right to privately confer with counsel has
been chilled.” Nordstrom, 762 F.3d at 911. This injury is
sufficient to state a First Amendment claim. See Laird v.
Tatum, 408 U.S. 1, 11 (1972) (explaining that “constitutional
violations may arise from the deterrent, or ‘chilling,’ effect of
governmental [actions] that fall short of a direct prohibition
against the exercise of First Amendment rights,” where “the
challenged exercise of governmental power was regulatory,
proscriptive, or compulsory in nature, and the complainant
was either presently or prospectively subject to the
regulations, proscriptions, or compulsions that he was
challenging.”); cf. Hines v. Gomez, 108 F.3d 265, 269 (9th
Cir. 1997) (holding, in the context of a First Amendment
retaliation claim, that “the injury asserted is the retaliatory
accusation’s chilling effect on Hines’ First Amendment
rights. . . . Hines’ failure to demonstrate a more substantial
injury does not nullify his retaliation claim.”).

   Finally, we recognize that the fact that a prison’s actions
“burden[] prisoners’ First Amendment rights does not,
however, tell us whether the policy [or practice] is


    9
      In Lewis v. Casey, 518 U.S. 343 (1996), the Supreme Court held that
a group of prisoners challenging the adequacy of prison law libraries were
required to show actual injury in order to mount a successful access-to-
courts challenge. Both the Third and the Eleventh Circuits have held that
“the actual injury requirement applies to access-to-courts claims but not
to free speech claims.” Al-Amin v. Smith, 511 F.3d 1317, 1341 (11th Cir.
2008); see Jones v. Brown, 461 F.3d 353, 359 (3d Cir. 2006) (“We reject
the argument . . . that the Supreme Court’s decision in Lewis v. Casey . .
. require[s] that the plaintiffs prove some injury-in-fact beyond the
infringement of constitutionally protected speech.”).
18       HAYES V. IDAHO CORRECTIONAL CENTER

constitutional. Prisoners necessarily sacrifice many of the
constitutional rights available to non-incarcerated citizens.”
Jones, 461 F.3d at 360. Instead, “[t]he relevant question, as
articulated by the Supreme Court in Turner, is whether the
legal mail policy is ‘reasonably related to legitimate
penological interests.’” Id. (quoting Turner, 482 U.S. at 89).
Here, Defendants have not yet had the opportunity in district
court to present evidence of a legitimate penological reason
for opening Hayes’s mail outside his presence.

    Thus, we conclude that Hayes has stated a First
Amendment claim on the facts alleged, and the district court
erred in dismissing this claim at the pre-screening stage. See
Merriweather, 569 F.3d at 318. On remand, Defendant Burke
may offer a legitimate penological reason for opening
Hayes’s legal mail at either summary judgment or trial.

                             IV.

    Finally, Hayes waived any challenge to the dismissal of
his policy-based claims. See Monell, 436 U.S. 658. We “will
not ordinarily consider matters on appeal that are not
specifically and distinctly raised and argued in appellant’s
opening brief.” Officers for Justice v. Civil Serv. Comm’n of
City & Cty. of San Francisco, 979 F.2d 721, 726 (9th Cir.
1992) (citation omitted). Hayes’s opening brief does not
discuss his Monell policy or custom claims against
Defendants Cluney, IDOC, and ICC, nor does it cite any
authority related to these claims. We therefore decline to
address Hayes’s argument, raised for the first time in his
reply brief, that the district court erred in dismissing his
policy-based claims.

                      *       *       *
          HAYES V. IDAHO CORRECTIONAL CENTER                   19

    For the reasons set forth above, we reverse the district
court’s dismissal of Hayes’s First Amendment claim against
Defendant Burke and affirm the dismissal of the policy-based
claims against the remaining defendants.

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

    The parties shall bear their 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 First Amendment right
to be present when legal mail related to a civil matter is
inspected. I write separately because I don’t think the
majority has explained with sufficient clarity what is required
to state a First 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.
8–9, 10–16, may mislead the district courts and the parties
into thinking that merely negligent conduct is sufficient to
state a 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

    1
      Portions of this concurrence are identical to portions of my
concurrence in the companion case, Mangiaracina v. Apraio, No. 14-
15271, — F.3d — (9th Cir. 2017). This case addresses the First
20        HAYES V. IDAHO CORRECTIONAL CENTER

                                   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. 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,
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


Amendment right to be present when legal mail is inspected by prison
guards; Mangiaracina addresses the Sixth Amendment right to be present.
The principles are nearly the same, and my concerns are the same.
         HAYES V. IDAHO CORRECTIONAL CENTER                  21

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.”);
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).
22       HAYES V. IDAHO CORRECTIONAL CENTER

    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
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
         HAYES V. IDAHO CORRECTIONAL CENTER                 23

       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.
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:
24        HAYES V. IDAHO CORRECTIONAL CENTER

        [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 First Amendment right to be present when legal
mail related to a civil matter is inspected. There is 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 First
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
           HAYES V. IDAHO CORRECTIONAL CENTER                         25

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 Hayes’s claim, Hayes
has alleged a “policy and practice” of illegally opening
inmates’ mail—particularly “inmates who are charged with
sex offenses.” These are sufficient facts to allege a
constitutional violation at the pleading stage of the litigation,
even though the State has offered an account of the opening
of Hayes’s incoming legal mail on December 28, 2010 and
March 2, 2011 that calls his allegations into question.

                                   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 two months
“state[] a First Amendment claim on the facts alleged.”2 Maj.
Op. at 18. To reach this conclusion, the opinion relies heavily

    2
       On remand, the majority will allow the State to offer a “legitimate
penological reason” for opening Hayes’s legal mail. Maj. Op. at 18.
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, Hayes’s claim nearly sounds in strict liability.
26        HAYES V. IDAHO CORRECTIONAL CENTER

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 8–9
(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 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 later concludes that “[t]wo or three
pieces of mail opened in an arbitrary or capricious way
suffice to state a claim.” Maj. Op. at 14 (alteration in
original) (quoting Merriweather v. Zamora, 569 F.3d 307,
318 (6th Cir. 2009)). I regret that the majority has introduced
an “arbitrary or capricious” standard into the evaluation of
§ 1983 claims under the First 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
         HAYES V. IDAHO CORRECTIONAL CENTER                  27

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 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
28       HAYES V. IDAHO CORRECTIONAL CENTER

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 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.
         HAYES V. IDAHO CORRECTIONAL CENTER                   29

                               B

      The opinion concludes that Hayes has alleged sufficient
facts to state a claim for two instances of improper legal mail
opening (December 28, 2010 and March 2, 2011). With
respect to the December incident, Hayes alleged he received
“legal mail . . . which had already been opened.” The
prison’s response to the grievance he filed includes
information gathered from various employees in the prison.
The opinion notes that Case Manager Fink stated that “there
was a piece of tape on the envelope but [prison officials]
could not tell if it were [sic] sent through the mail this way or
opened by mistake here or at another location.” Maj. Op. at
5 (citation omitted). The opinion leaves out the other parts of
the prison’s response, which note that the staff member in
charge initially responded “[w]e would have marked opened
in error if we had opened it” and the “mail room supervisor
. . . indicated they did not open the offenders [sic] legal mail
and if this would have occurred they would have indicated
this on the envelope.” In the second incident, the prison
admitted that Hayes’s mail was opened in error. The prison
also said that the mail was not read.

    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 Hayes has said enough at
this stage of the proceedings to allege a constitutional tort.
As the majority explains, Hayes pled that Defendant Cluney,
the Deputy Warden of Virtual Prisons at the Idaho
Department of Correction (IDOC), “has not stopped his
subordinates from creating a ‘policy or custom’” of “illegally
opening inmates clearly marked legal mail outside the
presence of the inmate,” and that mail room supervisor Lisa
Burke “continues to implement these ‘illegal’ policies and
30        HAYES V. IDAHO CORRECTIONAL CENTER

customs.” Hayes also states in his filings that this practice
is particularly prevalent for “inmates who are charged
with sex offenses.” Although IDOC’s official policy
complies with the requirements of today’s holding,
outling that for incoming legal mail, “[a] unit staff
member will open and inspect the envelope in the presence
of the inmate but will not read it,” Idaho Dep’t. of
Corr., Standard Operating Procedure, Mail Handling in
Correctional Facilities, Control Number 402.02.01.011,
https://www.idoc.idaho.gov/content/policy/588, at 9, 12, that
written policy alone is insufficient if prison staff are
intentionally violating that policy for sex offenders. 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 Hayes’s pro se complaint liberally, I
conclude that Hayes has sufficiently claimed that someone is
intentionally, rather than merely accidentally, opening his
legal mail in violation of his First 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.
