23-216 Saeli v. Chautauqua County

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 6th day of December, two thousand twenty-four.

PRESENT:

DENNY CHIN, SUSAN L. CARNEY, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________

SAMUEL JAMES SAELI,

Plaintiff-Appellant,

v. No. 23-216

CHAUTAUQUA COUNTY, NY, WILLIAM GENTHER, JASON STEENBURN, THOMAS GILMORE, K. WIELGASZ, LIEUTENANT GRUPA, CHAUTAUQUA COUNTY SHERIFF’S DEPARTMENT, UNKNOWN EMPLOYEES OF THE CHAUTAUQUA COUNTY JAIL, UNKNOWN CHAUTAUQUA COUNTY SHERIFF,

Defendants-Appellees. _____________________________________

For Plaintiff-Appellant: SANTO TIRALOSI, ROBERT PICCIANO, Rule 46.1(e) Law Students (Nathan Glazer, Christine Hoy, Local Rule 46.1(e) Law Students, Jonathan Romberg, on the brief), Seton Hall University School of Law Center for Social Justice, Newark, NJ.

For Defendants-Appellees: Michael P. McClaren, Shannon B. O’Neill, Meghan M. Hayes, Webster Szanyi LLP, Buffalo, NY.

Appeal from a judgment of the United States District Court for the Western

District of New York (Charles J. Siragusa, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the February 2, 2023 judgment of the district

court is AFFIRMED IN PART and VACATED IN PART, and the case is

REMANDED.

Samuel Saeli appeals from the district court’s judgment dismissing with

prejudice his claims under

alleging mistreatment while he was a

pretrial detainee at the Chautauqua County Jail. The sole issue on appeal relates

2 to Saeli’s constitutional claim that Thomas Gilmore, a corrections officer,

improperly searched Saeli’s cell for his legal correspondence and then confiscated

and transmitted that correspondence to the prosecuting district attorney’s office

in his state criminal matter. We assume the parties’ familiarity with the facts,

procedural history, and issues on appeal.

We review de novo a district court’s dismissal of a complaint under Federal

Rule of Civil Procedure 12(b)(6), “accepting all factual allegations in the complaint

as true and drawing all reasonable inferences in the plaintiff's favor.” Bangs v.

Smith,

(2d Cir. 2023) (internal quotation marks omitted). Because

Saeli was proceeding pro se below, we construe his pleadings liberally, “reading

such submissions to raise the strongest arguments they suggest.” McLeod v.

Jewish Guild for the Blind,

(2d Cir. 2017) (internal quotation marks

omitted). Nevertheless, his complaint still must plead “sufficient factual

matter . . . to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

(2009) (internal quotation marks omitted).

Saeli alleges that, on or about May 22, 2018, while he was detained and

awaiting trial at the Chautauqua County Jail, corrections officer Gilmore

“conducted a search” of Saeli’s cell, “searching for the original and complete

3 document of legal correspondence intended for [his] attorney.” J. App’x at 40.

Saeli later “was informed that Gilmore lost the original complete documents and

only had pictures of the documents that he had taken with his cellphone.”

Saeli also learned that Gilmore “turn[ed] over two (2) edited pages of this legal

correspondence” to the prosecutors at the Chautauqua County District Attorney’s

Office, who “raised the circumstances of that correspondence” at a court

proceeding on May 29.

Defendants moved to dismiss this claim for failing to state any violation of

either Saeli’s Fourth Amendment right to be free from unreasonable searches and

seizures or his Sixth Amendment right to counsel. The district court granted that

motion. As to the Sixth Amendment claim, the district court held that a violation

of the attorney-client privilege did not give rise to any constitutional claim, and

that Saeli had not “allege[d] any prejudice or actual obstruction to accessing his

counsel.”

at 133–35. The district court further concluded that amendment

would be futile, and dismissal with prejudice was warranted, because any

plausible right-to-counsel claim that Saeli could assert would amount to an

“improper collateral attack on [his] criminal conviction,” which would be barred

4 by the Supreme Court’s decision in Heck v. Humphrey.

at 135 (citing

(1994)).

On appeal, Saeli argues that the district court erred by dismissing his Sixth

Amendment claim and by failing to construe his complaint to raise a viable claim

for the violation of his First Amendment right to free-flowing legal mail. He also

contends, among other things, that the district court incorrectly applied Heck’s

procedural bar to his claims.

We begin with Saeli’s asserted Sixth Amendment right-to-counsel claim,

which the district court explicitly considered and rejected. As we have

recognized, the “right of the accused ‘[i]n all criminal prosecutions . . . to have the

Assistance of Counsel for his defence’ is a direct right, grounded squarely in the

text of the Constitution.” Benjamin v. Fraser,

(2d Cir. 2001)

(quoting U.S. Const. amend. VI); see also Bourdon v. Loughren,

(2d

Cir. 2004) (“The right to effective assistance of counsel . . . is the right of a

defendant to be heard on the criminal charges against him.”). “[I]n the context of

the right to counsel, unreasonable interference with the accused person’s ability to

consult counsel is itself an impairment of the right.” Benjamin,

. 1

1 For this reason, “a prisoner has standing to assert [a Sixth Amendment] right even if the denial

5 Both Saeli and Defendants identify Benjamin as setting forth the governing

standard for a section 1983 right-to-counsel claim, agreeing that a restriction on a

criminal defendant’s contact with his attorney is unconstitutional where the

restriction “unjustifiably obstruct[s]” or “unreasonably burden[s] the inmate’s

opportunity to consult with his attorney and to prepare his defense.”

(internal quotation marks omitted).

We have said little more about what constitutes an “unreasonable

interference” with a criminal defendant’s right to access counsel. Nor have we

addressed a set of allegations like the ones presented here, let alone clarified

whether and how the Benjamin standard applies in such circumstances. It bears

noting that in Benjamin we were reviewing the appropriateness of certain court-

ordered measures regarding attorney visitations for pretrial detainees, after the

district court had concluded that the prior jail conditions had caused substantial,

unpredictable (and unconstitutional) delays for defense attorneys meeting with

their clients. See

at 179–81; see also

(acknowledging “certain

restrictions on a detainee’s right to counsel may be justified by the constraints of

institutional [prison] management”). Moreover, Benjamin and the cases to which

of that right has not produced an ‘actual injury.’”

We therefore reject Defendants’ argument to the contrary.

6 it cites focus primarily on the issue of access to counsel – factually distinct from

the nature of the violation that Saeli alleges here. See, e.g.,

at 186–87 (collecting

cases); Wolfish v. Levi,

(2d Cir. 1978) (affirming remedial order

where “attorney visits were made in the general visiting rooms during visiting

hours thereby entailing long delays, limiting the attorney’s time with his client,

and totally vitiating confidentiality”), rev’d on other grounds, Bell v. Wolfish,

(1979); Smith v. Coughlin,

(2d Cir. 1984) (holding that ban on

visits by paralegal personnel violated effective assistance of counsel). Seizing on

these differences, Defendants argue that the “single instance of interference with

unsent legal mail” alleged by Saeli did not in any way deprive him of the assistance

of counsel and therefore cannot amount to unreasonable interference with his

Sixth Amendment right. Defs. Br. at 9; see

at 8–13.

Saeli, for his part, points to no authority applying Benjamin, but instead

asserts that Gilmore’s alleged conduct on its face – involving not only improper

confiscation but also transmission to the prosecuting district attorney’s office –

plainly satisfies that standard. Ultimately, his best support for this argument

comes from cases outside the Circuit, which have recognized that “opening

properly marked legal mail alone, without doing more, implicates” the Sixth

7 Amendment “because of the potential for a chilling effect” on a criminal

defendant’s ability to freely communicate with his attorney. Merriweather v.

Zamora,

(6th Cir. 2009) (internal quotation marks omitted); see

Wolff v. McDonnell,

, 576–77 (1974) (upholding state regulation

allowing prison officials to open inmate legal mail in inmate’s presence without

reading its contents and observing that such an approach would avoid

“censorship” and the “chill[ing]” of legal communications). Other circuits have

suggested that “even isolated incidents of improper [legal] mail opening may, in

appropriate circumstances, be sufficient to allege a Sixth Amendment violation.”

Mangiaracina v. Penzone,

(9th Cir. 2017); see, e.g., Nordstrom v.

Ryan,

(9th Cir. 2014) (concluding single incident was sufficient to

support a Sixth-Amendment-based claim for injunctive relief where allegations

indicated improper opening “was not simply a one-time mistake or confusion over

the contours of the [prison] policy”); Merriweather,

(concluding that

improper opening of four pieces of legal mail was “enough alone to state a claim”).

These examples, Saeli contends, demonstrate that his allegations are more than

adequate to plead a Sixth Amendment claim. 2

2 Neither party mentions Weatherford v. Bursey,

, 557–58 (1977), in which the Supreme

8 In the end, we need not resolve what standard to apply and whether it has

been satisfied because, under any of the standards Saeli identifies, his complaint

does not allege sufficient facts to meet federal pleading standards. See Iqbal,

; see also Jusino v. Fed’n of Cath. Tchrs., Inc.,

(2d Cir. 2022)

(“We may affirm on any ground with support in the record.” (internal quotation

marks omitted)). For starters, Saeli provides scant detail about how he learned of

Gilmore’s alleged conduct, or the basis for his conclusory assertion that Gilmore

“was advised” to and did purposefully search Saeli’s cell for his legal

correspondence. J. App’x at 40. More to the point, he makes no allegations

about whether the document was marked or otherwise identifiable as legal mail,

nor does he include any facts regarding how Gilmore would or should have

recognized it as such. Cf. Mangiaracina, 849 F.3d at 1196–97 (concluding pro se

inmate sufficiently alleged mail was “properly marked as legal mail” to support

Court rejected a section 1983 Sixth Amendment claim that the government had used an informant to impermissibly intrude on a defendant’s attorney-client relationship. We subsequently summarized Weatherford as holding that, “to establish a Sixth Amendment violation where an informant sat in on defense strategy sessions[,] defendants were required to establish that privileged information had been passed to the government or that the government had intentionally invaded the attorney client relationship, and resulting prejudice.” United States v. Dien,

(2d Cir. 1979), adhered to on reh’g,

(2d Cir. 1980). Some circuits have historically looked to Weatherford when evaluating Sixth Amendment claims that involve “jailhouse monitoring and document interception.” See, e.g., Williams v. Woodford,

, 584–85 (9th Cir. 2004).

9 Sixth Amendment claim for two instances of improper mail opening, but affirming

dismissal with respect to seven other instances). We also note that Saeli does not

allege that this incident had any effect whatsoever on his relationship or ability to

communicate with his defense counsel. In short, even construing Saeli’s pro se

complaint liberally, we cannot say that it contains “sufficient factual matter” to

state any Sixth Amendment claim for relief. Iqbal,

.

For similar reasons, Saeli has failed to state a claim based on his First

Amendment “right to the free flow of incoming and outgoing mail.” Davis v.

Goord,

(2d Cir. 2003). While neither Defendants nor the district

court below considered whether Saeli had raised a First Amendment claim, we

agree that his allegations possibly implicate such a claim and therefore consider it

on appeal. See Phillips v. Girdich,

(2d Cir. 2005) (explaining that

pro se litigants “cannot be expected to know all of the legal theories on which they

might ultimately recover”). Nevertheless, “an isolated incident of mail

tampering is usually insufficient to establish a constitutional violation”; while we

have recognized that “as few as two incidents of mail tampering could constitute

an actionable violation,” we have limited those to situations in which “the

incidents suggested an ongoing practice of censorship unjustified by a substantial

10 government interest” or “the tampering unjustifiably chilled the prisoner’s right

of access to the courts or impaired the legal representation received.” Davis,

(citing Washington v. James,

(2d Cir. 1986)). Because

Saeli’s complaint provides no details concerning the frequency, willfulness, or

effect of the alleged tampering, his allegations are likewise factually insufficient to

state a First Amendment claim.

Nevertheless, while we affirm the district court’s dismissal of Saeli’s

complaint, we cannot conclude that it was proper to dismiss his claims with

prejudice and without leave to amend. The district court’s ruling in that regard

was based on its conclusion that any plausible claim would necessarily be barred

by Heck. But given the nature of the rights implicated by Saeli’s allegations

(including the First Amendment right to free-flowing legal mail) and the lack of

detail in his complaint, it is not at all clear that success in this action “would

necessarily demonstrate the invalidity of his conviction or sentence.” McKithen v.

Brown,

(2d Cir. 2007). We therefore vacate that portion of the

district court’s judgment that dismissed Saeli’s claims with prejudice and remand

to the district court for consideration of Saeli’s request for leave to file an amended

complaint. See Cuoco v. Moritsugu,

(2d Cir. 2000) (explaining that

11 courts generally “should not dismiss [a pro se complaint] without granting leave

to amend at least once when a liberal reading of the complaint gives any indication

that a valid claim might be stated” (internal quotation marks omitted)). 3

* * *

For the reasons set forth above, the judgment of the district court is hereby

AFFIRMED IN PART and VACATED IN PART, and the case is REMANDED

for further proceedings consistent with this order.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

3 We note that even in cases where Heck does apply, dismissal must be “without prejudice, because the suit may be reinstituted should plaintiff’s conviction be” vacated at a later date. Amaker v. Weiner,

(2d Cir. 1999).

12