Litigation & Case Law Update

Publication year2017
AuthorBy Christopher Whitman and Donna Mooney
Litigation & Case Law Update

By Christopher Whitman and Donna Mooney*

Mangiaracina v. Penzone (2017) 849 F.3d 1191 (9th Cir., filed Mar. 3, 2017) and Hayes v. Idaho Correctional Center (2017) 849 F.3d 1204 (9th Cir., filed Mar. 3, 2017)

The Sixth and First Amendments provide incarcerated persons with a right to be present when their properly marked legal mail is opened for inspection.

In this pair of opinions issued on the same day by the same panel, the Ninth Circuit held for the first time that opening legal mail outside the presence of inmates violates the Sixth Amendment (Mangiaracina) and the First Amendment (Hayes). Prior to these two opinions, it was an open question in the Ninth Circuit whether properly marked legal mail must be opened and inspected in a prisoner's presence.

Plaintiffs Mangiaracina and Hayes were, respectively, inmates at a county jail in Arizona and at a state prison in Idaho. They alleged that their properly marked legal mail was opened and resealed by correctional employees before being delivered to their cells, and each inmate filed grievances about the handling of their legal mail. When the practices continued, the inmates filed 42 U.S.C. Section 1983 (Section 1983) complaints: Mangiaracina asserted a violation of the Sixth Amendment concerning legal mail for his criminal cases, and Hayes asserted a violation of the First Amendment concerning legal mail for his civil case.

The district courts gave the plaintiffs opportunities to amend their complaints, but ultimately granted the defendants' motions to dismiss for failure to state claims for relief. The Ninth Circuit reversed both of the lower courts. It held that inmates' ability to freely communicate with their attorneys will be compromised if privileged communications do not remain confidential, and that opening or inspecting such mail outside the presence of inmates is a burden on the Sixth and First Amendments. The court also reasoned that allowing prison guards to open legal mail outside the presence of the inmates (and thereby read the mail) gives rise to a justifiable concern that retaliation may result from guards who have been accused of wrongdoing by the inmates.

On appeal, the defendants argued that the plaintiffs failed to allege more than mere negligence or accidents, while a Section 1983 claim must be predicated on intentional acts or omissions. Judge Bybee also raised similar concerns in the concurring opinion for each case. However, in Mangiaracina, a guard allegedly told the inmate that legal mail could be opened without the inmate being present, despite a written policy against doing so. And in Hayes, the inmate, who was convicted of lascivious conduct with a minor under sixteen, alleged that mailroom staff only opened the legal mail of sex offenders. Therefore, while these opinions purport to provide helpful clarification for public entities operating prisons and jails, it remains to be seen whether the language of the opinions will (as noted in Judge Bybee's concurrences) confuse the pleading standard for Section 1983 claims.

Zetwick v. County of Yolo (2017) 850 F.3d 436 (9th Cir., filed Feb. 23, 2017)

Under Title VII and FEHA, a hostile work environment is created when a male supervisor gives approximately one hundred unwelcome hugs, and at least one kiss, to a female employee over a twelve year period.

Victoria Zetwick worked as a correctional officer at a county jail for many years. Starting in 1999, and for the next twelve years, the county sheriff (who was male) greeted her with unwelcome hugs on more than one hundred occasions and with a kiss on at least one occasion. Zetwick never saw the sheriff hug male employees, and only saw him shake hands with other men.

After filing an administrative claim, Zetwick sued the county and the sheriff, alleging sexual harassment under Title VII of the Civil Rights Act of 1964 (Title VII) and the Fair Employment and Housing Act (FEHA), and failure to prevent sexual harassment under FEHA. The district court granted summary judgment for the defendants and agreed with defendants' argument that the differences in hugging of men and women were genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and opposite sex.

The Ninth Circuit reversed, finding that the district court had applied the incorrect legal standards and improperly analyzed the record. It held that there is no black letter rule that hugs and kisses on the cheek are within the realm of common workplace behavior. It also held that plaintiffs need not prove that the challenged conduct was both severe and pervasive enough to alter the conditions of employment, rather only that the conduct was either severe or pervasive enough to do so. Furthermore, the Ninth Circuit held that the district court failed to...

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