                     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.


1 Ill. App.3d 635 (1971)
274 N.E.2d 153
KRAFTCO CORPORATION, Plaintiff-Counter-Defendant-Appellee,
v.
RAYMOND KOBLUS, d/b/a K & M DISTRIBUTING COMPANY, Defendant-Counter-Plaintiff-Appellant.
No. 11466.
Illinois Appellate Court  Fourth District.
October 8, 1971.
*636 Dunn, Dunn, Brady, Goebel, Ulbrich & Hayes, of Bloomington, (William M. Goebel, of counsel,) for appellant.
Noble, Brown & Sheerin, of Chicago, and Thomson, Thomson & Mirza, of Bloomington, (Narcisse A. Brown and James G. Walker, of counsel,) for appellee.
Judgment affirmed.
Mr. PRESIDING JUSTICE SMITH delivered the opinion of the court:
This is an appeal from an order of the trial court entering judgment on the complaint and dismissing a counterclaim filed by a distributor, Raymond Kolbus, against Kraftco, a manufacturer. The complaint was filed alleging that Kolbus, the distributor, failed to pay Kraftco, the manufacturer, for certain items purchased from it. The answer admitted failure to pay for items purchased, but alleged a setoff. A counterclaim was filed with the answer asserting that there was a setoff by reason of a breach of contract, and amended twice. The trial court on motion entered judgment for the Plaintiff on the complaint and on motion dismissed the second amended counterclaim for failure to state a cause of action.
The second amended counterclaim alleges the following facts. Kraftco is the owner and manufacturer of Sealtest products through its wholly *637 owned subsidiary, Sealtest Foods. Sealtest is alleged to be the agent of Kraftco. Kolbus is a distributor of Sealtest products. In 1959, Kolbus, prior to the purchase of the distributorship from a third party, conferred with employees and agents of Sealtest pertaining to the purchase of this distributorship. In these conferences, employees of Sealtest represented that Kolbus would continue as the distributor of Sealtest, that Sealtest would see to it that the territory was exclusive, that Sealtest would assist Kolbus in case of a desire to sell the distributorship, that Sealtest would stand behind the purchasers so that they would have something to sell and that Sealtest saw to it that their distributors were kept satisfied. Kolbus agreed at this time with Sealtest to distribute its products and to use his best efforts in so doing. Kolbus thereafter purchased the distributorship from this third party. A portion of the price was paid for the good will of the business. It is alleged that Kolbus thereafter over a period of ten years, invested approximately $43,000.00 in the business and sold over $2,000,000.00 worth of products for Sealtest. In April and May of 1969, Kolbus attempted to sell this distributorship to a third party. This third party conferred with Sealtest and was informed by Sealtest that it could not guarantee the purchaser the distributorship for the reason that the company was thinking of distributing its products itself. Kolbus then conferred with Sealtest and was informed similarly that the company could not assure the distributorship to the prospective purchaser. Approximately two months thereafter, in June of 1969, Kraftco, without any notice to Kolbus, terminated the distributorship. The refusal to continue to furnish dairy products to Kolbus was alleged as breach of and a violation of the agreement between Kraftco and Kolbus. The breach was alleged to have been done intentionally and maliciously and punitive and compensatory damages are sought.
[1] The posture of the parties on this appeal is directed against the order of the trial court which struck the counterclaim. The briefs of the parties raised three issues  mutuality of obligation, Statute of Frauds and punitive damages. The trial court in dismissing the counterclaim, did not state the reasons for its dismissal. For the purpose of this appeal, those facts well pleaded in the counterclaim will be taken as true; however, conclusions of law or fact unsupported by allegations of fact are not admitted. Gordon E. Adams v. J.I. Case Co., 125 Ill. App.2d 388, 261 N.E.2d 1.
[2] It is basic in the formation of a contract that the parties must have entered into an agreement which is sufficiently definite and certain so that the terms are either determined or may be implied. It is stated in Lee Shell Co., Inc. v. Model Food Center, Inc., 111 Ill. App.2d 235, 250 N.E.2d 666, on p. 244:

*638 "It is basic contract law that the terms of the contract must be reasonably certain; and when the material terms and conditions are not ascertainable, no enforceable contract is created."
Kolbus, in this case, alleged as a contract statements which were made to him in very general terms. At the time of the purchase of the distributorship from a third party, he had a conversation with agents of the manufacturer. The statements made were that the distributorship could be purchased, that Sealtest stood behind its distributors and that Sealtest would aid in case of a subsequent sale of the distributorship. These representations alleged do not appear to have the strength of a contractual commitment and appear as general statements made by a third party on inquiring as to what would be done if the purchase was consummated. Kolbus did purchase the distributorship and did for ten years act as a distributor. These representations appear informal and do not set forth terms of any purported agreement. Such questions as duration, prices, area, products, quotas, etc. are not alleged. This Court areas with the statements contained in Heuvelman v. Triplett Electrical Instrument Co., 23 Ill. App.2d 231, 161 N.E.2d 875 on page 236:
"Such contracts extending for a long duration and resting entirely on parol should have for their basis definite and certain mutual promises. The words and the manner of their utterance should not be of that informal character which expresses only long continuing good will and hopes for eternal association."
[3] It is not up to the court to write an agreement for the parties. Although terms of the contract may be implied in certain circumstances, writing the total contract for the parties is without the purview of the courts. It would appear to this court certainty is lacking in this purported agreement of 1959 and the essential terms are unsettled. The allegations merely set forth utterances of an informal character and to attach to them the binding effect of a contractual commitment would be improper.
[4-6] Both parties have devoted much of their argument to the question of mutuality. The purported agreement was alleged to be allowing Kolbus to purchase a distributorship and in assisting Kolbus in any future sale of the distributorship that he might want to make. Kolbus in turn agreed to use his best efforts to sell the products. Mutuality of obligation is necessary for the contract to be enforceable. Schoen v. Caterpillar Tractor Co., 103 Ill. App.2d 197, 243 N.E.2d 31. Mutuality of obligation is defined as follows:
"Mutuality of obligation means that both parties to an agreement are bound or neither is bound. A contract in its nature and character and according to the intention of the parties should involve and *639 impose a reciprocity of obligation and duty." Illinois Law & Practice, Contracts, Section 7.
In Goodman v. Motor Products Corporation, 9 Ill. App.2d 57, 132 N.E.2d 356, the court held that a distributorship contract giving the Plaintiff the exclusive right to sell products of the Defendant outside the United States as long as he devoted his full time and attention thereto and devoted his best efforts to sell the product was lacking in mutuality. The contract in that case was terminated after notice and a suit was brought for its alleged wrongful termination. The court holding that the contract lacked mutuality stated on page 68 as follows:
"Assuming that the oral agreement which Goodman alleged, and to which he testified, was made, it is one which was to run without a prescribed limit and which could be terminated only by Goodman in his uncontrolled discretion and was binding on defendant until Goodman of his own volition ceased to devote his time and efforts to selling and distributing Deepfreeze products.... Under the doctrine of mutuality, such a contract, insofar as it was executory, could be terminated by defendant by due notice at any time as to all or any part of Goodman's assigned territory."
In speaking of the phrase "best efforts" that court commented on pages 71-72 that the term is too vague to be fairly intelligible and too lacking in certainty to be enforceable.
Similarly in Joliet Bottling Co. v. Joliet Citizens' Brewing Co., 254 Ill. 215, 98 N.E. 263, the brewing company agreed to furnish the bottler with beer for an indefinite period of time in an amount sufficient to supply the latter's demand. Expenditures were made in reliance upon the agreement which was in writing. The court found that this agreement was lacking in mutuality and stated on pages 218-219:
"The only thing the contract bound appellant to do was to pay the price agreed upon and bottle the beer of appellee and to market the same as the product of appellee so long as it furnished beer satisfactory in quality and in such quantities as the trade demanded. No mention is made of any period of time the agreement should continue in force.... It cannot be doubted, we think that the contract was unilateral and void for want of mutuality ... Furthermore, no time being fixed during which the agreement should continue in force, it was terminable at the will of either party."
In this case, there was no obligation upon Kolbus other than to use his best efforts. He had no obligation to sell any specific quantity and no obligation to meet any quotas. The operation of this contract was totally dependent upon the actions of Kolbus. The mere allegation of *640 best efforts is too indefinite and uncertain to be an enforceable standard. As such, the contract was lacking in mutuality of obligation and unenforceable.
Even assuming the terms were definite and that there is the requisite mutuality for the enforcement of this agreement, the agreement, being for an indefinite duration, is terminable at the will of either party. It has long been the holding of the Illinois courts that where an executory contract fixes no time for its operation, it is terminable at the will of either party. (Schoen v. Caterpillar Tractor Co., 103 Ill. App.2d 197, 243 N.E.2d 31; Joliet Bottling Co. v. Brewing Co., 254 Ill. 215, 98 N.E. 263; Meadows v. Radio Industries, 222 Fed. 347; Gage v. Village of Wilmette, 315 Ill. 328, 146 N.E. 325.) The agreement here was executory in nature. No fixed time or duration is alleged. As such, insofar as its executory portions are concerned, it is terminable at the will of either party.
The allegations in the counterclaim allege that the termination was without notice. This poses a somewhat difficult question, as the contract had been in existence for ten years. An argument could be made that reasonable notice should be required under such circumstances. However, with the exception of the Goodman and Meadows cases cited herein, notice was not given in the above cases. These courts have held that these contracts for indefinite duration may be terminated at will. Under these holdings, notice would not appear necessary.
For the foregoing reasons we hold that the allegations of the counterclaim herein do not set forth the terms of a mutuality enforceable and binding contract and we therefore affirm the trial court's dismissal of the counterclaim. It is therefore not necessary to reach the question raised by the parties as to the application of the Statute of Frauds to this purported agreement and the issue of punitive damages.
Judgment affirmed.
CRAVEN and TRAPP, JJ., concur.


               United States Court of Appeals
                         For the Eighth Circuit
                     ___________________________

                             No. 14-1150
                     ___________________________

                   In re: Blake Roussel; Amanda Roussel

                            lllllllllllllllllllllDebtors

                           ------------------------------

                  Clear Sky Properties, LLC; LuAnn Deere

                           lllllllllllllllllllllAppellees

                                        v.

                                 Blake Roussel

                           lllllllllllllllllllllAppellant
                                  ____________

                  Appeal from United States District Court
              for the Eastern District of Arkansas - Little Rock
                               ____________

                         Submitted: September 8, 2014
                            Filed: October 3, 2014
                                ____________

Before BENTON, BEAM, and SHEPHERD, Circuit Judges.
                           ____________

BENTON, Circuit Judge.
        Blake Roussel filed for bankruptcy under Chapter 7 of the Bankruptcy Code.
In an adversary proceeding, the bankruptcy court refused to apply collateral estoppel
to a state judgment. It found nearly all the debt dischargeable. On appeal, the district
court1 reversed. It found nearly all the debt nondischargeable, but remanded the
attorney-fee debt (including costs and expenses). Roussel appeals, asserting the
district court erred in determining he was barred by collateral estoppel, committed
defalcation while acting as a fiduciary, and acted willfully and maliciously. He
argues the bankruptcy court correctly determined that the attorney-fee award was
dischargeable. This court dismisses for lack of jurisdiction under 28 U.S.C. § 158(d).

                                           I.

       A state jury found that Roussel breached fiduciary and contract duties to both
Clear Sky Properties, LLC and the other member LuAnn Deere. It awarded
compensatory and punitive damages and attorney fees. The state judge granted
attorney fees: “Based on the arguments in the Motion and Brief.” He did not
mention the claims, or apportion the fees between them. The Motion invoked the
parties’ operating agreement (providing that the loser of any dispute shall pay
attorney fees) and a state statute (authorizing attorney fees for breach of contract).
The Brief reiterated the agreement and statute, but noted that the “breach of contract
claim is inextricably intertwined with the breach of fiduciary duty” and that: “As
these claims were so closely connected, Deere would have incurred the same expense
in pursuing only the breach of contract claim as she did in pursuing all the claims.”

      Roussel later filed for bankruptcy under Chapter 7. Clear Sky and Deere
alleged that his breach-of-fiduciary debt was nondischargeable because he committed
defalcation as a fiduciary under 11 U.S.C. § 523(a)(4) and engaged in willful and
malicious conduct under 11 U.S.C. § 523(a)(6). The parties stipulated that the

      1
       The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas.
                                   -2-
breach-of-contract debt was dischargeable, but disputed (among other things) whether
the attorney fees were linked solely to the breach of contract. Rejecting collateral
estoppel, the bankruptcy court considered evidence from the state trial and heard
testimony on Roussel’s state of mind. The bankruptcy court concluded that nearly
all the damages were dischargeable, as were the attorney fees. Clear Sky and Deere
appealed to the district court. It reversed, applying collateral estoppel to hold that
because the state jury awarded punitive damages, it necessarily found that Roussel
committed defalcation while acting as a fiduciary under § 523(a)(4) and that he acted
willfully and maliciously under § 523(a)(6). It found nondischargeable all the debt
from Roussel’s breach of fiduciary duty. The district court remanded the attorney
fees—$87,523.25 in fees and costs, about one-sixth of the total debt—to the
bankruptcy court for further consideration.

                                          II.

       Before addressing the merits, this court examines its jurisdiction of the appeal,
even if not raised by the parties. Isaacson v. Manty, 721 F.3d 533, 537 (8th Cir.
2013); In re M & S Grading, Inc., 526 F.3d 363, 367-68 (8th Cir. 2008); In re Melp,
Ltd., 79 F.3d 747, 747 (8th Cir. 1996) (per curiam).

      “In bankruptcy cases, this court can hear appeals only from final decisions,
judgments, orders, and decrees entered by district courts or bankruptcy appellate
panels.” In re Farmland Indus., Inc., 567 F.3d 1010, 1015 (8th Cir. 2009), quoting
In re Popkin & Stern, 289 F.3d 554, 556 (8th Cir. 2002), applying 28 U.S.C. §
158(d). “Finality for bankruptcy purposes is a complex subject,” which “must take
into account the peculiar needs of the bankruptcy process.” Cochrane v. Vaquero
Invs., 76 F.3d 200, 203-04 (8th Cir. 1996) (an exemption decision was not final
because the appeal did not “conclusively resolve” the status of all property). See
Ritchie Special Credit Invs., Ltd. v. U.S. Tr., 620 F.3d 847, 852 (8th Cir. 2010)

                                          -3-
(applying a “more flexible” concept of finality in bankruptcy cases than in non-
bankruptcy cases). The finality of a bankruptcy court order depends on the extent to
which (1) “the order leaves the bankruptcy court nothing to do but execute the order;”
(2) “delay in obtaining review would prevent the aggrieved party from obtaining
effective relief;” and (3) “a later reversal on the [contested issue] would require
recommencement of the entire proceeding.” Id., quoting In re M & S Grading, 526
F.3d at 36 (alteration in original).

       A district court remand ordinarily is not final, unless it “leaves only ministerial
duties for the bankruptcy court.” In re Farmland, 567 F.3d at 1015. An order is
ministerial and final if it effectively resolves the merits, and the task on remand is
“unlikely to generate a new appeal or to affect the issue that the disappointed party
wants to raise on appeal.” In re Popkin & Stern, 289 F.3d at 556 (a remand for
determination of ownership is more than ministerial and not final), quoting In re
Vekco, Inc., 792 F.2d 744, 745 (8th Cir. 1986). See In re Dorholt, Inc., 224 F.3d
871, 874 n.1 (8th Cir. 2000) (finding jurisdiction of an order because it “did not
remand for further fact-based inquiry”).

       The state judge did not specify whether the attorney-fee award is for a breach
of fiduciary duty or a breach of contract (or some apportionment). The bankruptcy
court determined that the attorney fees were dischargeable because they were based
on a contract (the operating agreement), or breach of contract. The district court,
remanding, noted that “when parties have included a provision authorizing recovery
of attorney’s fees in a contractual agreement, and those fees are incurred in
connection with a debt determined to be nondischargeable in bankruptcy, the creditor
may be entitled to recover such fees as part of the nondischargeable debt.” In re
Roussel, 504 B.R. 510, 527 (E.D. Ark. 2013), citing In re Alport, 144 F.3d 1163,
1168 (8th Cir. 1998). The district court ordered that “on remand, the Bankruptcy
Court should consider whether the fee provision set forth in Clear Sky’s operating

                                           -4-
agreement renders all or any part of Appellants’ fee award part of the
nondischargeable debt in this case.” In re Roussel, 504 B.R. at 527.

       This court first considers the extent to which an order leaves the bankruptcy
court nothing to do but execute the order. The remand here requires the bankruptcy
court to determine whether the operating agreement connects the attorney fees to the
nondischargeable fiduciary debt. Here, the district court’s remand does not direct the
bankruptcy court to dismiss or take a ministerial act. See In re Farmland, 567 F.3d
at 1015 (remanding with instructions to dismiss is purely ministerial). Instead, the
remand leaves the dischargeability of attorney fees to the bankruptcy court, requiring
factual and legal analysis. This is more than ministerial.

      [W]e have little trouble concluding the district court decision does not
      constitute a final decision for purposes of appeal. In remanding, the
      district court did not resolve the merits of the controversy, leaving only
      ministerial tasks to be performed by the bankruptcy court. Rather, the
      district court specifically anticipated that the bankruptcy court would
      further develop the record and would exercise considerable discretion
      in resolving the issue remanded to it. Then, following remand, the
      district court would be in a position to resolve finally and fully all issues
      raised by the Federal Land Bank in its appeal.

In re Vekco, Inc., 792 F.2d at 745.

       The other two factors—whether delay harms the aggrieved party, and whether
a later reversal requires an entirely new proceeding—favor dismissing this appeal.
The parties have not suggested that any delay in review will itself prevent effective
relief. See In re M & S Grading, 526 F.3d at 369. Nor have they indicated that a
later reversal will require a new proceeding. “[N]either judicial economy nor our
statutory authority under § 158(d) permits the piecemeal litigation that will result if
we prematurely consider the issues raised in this appeal.” Cochrane, 76 F.3d at 204.

                                          -5-
        Two recent Supreme Court decisions support the lack of jurisdiction here. The
Court established “a uniform rule that an unresolved issue of attorney’s fees for the
litigation in question does not prevent judgment on the merits from being final” and
that both “[c]ourts and litigants are best served by the bright-line rule, which accords
with traditional understanding, that a decision on the merits is a ‘final decision’. . .
whether or not there remains for adjudication a request for attorney’s fees attributable
to the case.” Budinich v. Becton Dickinson & Co., 486 U.S. 196, 202-03 (1988)
(emphasis added). The Court defined “for the litigation in question” and “attributable
to the case” to include “standard preliminary steps toward litigation.” Ray Haluch
Gravel Co. v. Cent. Pension Fund of Int’l Union of Operating Eng’rs &
Participating Empl’rs, 134 S. Ct. 773, 783 (2014). “To be sure, the situation would
differ if a party brought a freestanding contract action asserting an entitlement to fees
incurred in an effort to collect payments that were not themselves the subject of the
litigation.” Id.

       Unlike the attorney fees in Budinich and Ray Halluch Gravel Co., the fees here
are not “for the litigation in question” or “attributable to the case,” but for a prior
state-court case. Roussel was liable for the fees before his bankruptcy; the dispute
is whether they are dischargeable. The district court’s order is not final.

                                     *******

      This court does not have jurisdiction of the appeal, which is dismissed without
prejudice to a later appeal.
                       ______________________________

                                          -6-


642 F.2d 447
Balesv.Nifield
80-1485
UNITED STATES COURT OF APPEALS Fourth Circuit
1/9/81

1
W.D.Va.

AFFIRMED


20 F.Supp.2d 885 (1998)
Emily F. DAVIS, Plaintiff,
v.
LEVY, ANGSTREICH, FINNEY, BALDANTE, RUBENSTEIN & COREN, P.C., John Baldante, and Steven E. Angstreich, Defendants.
No. Civ.A. 97-CV-7475.
United States District Court, E.D. Pennsylvania.
October 13, 1998.
*886 Hyman Lovitz, Sidney L. Gold, Lovitz and Gold, P.C., Philadelphia, PA, for Plaintiff.
Hope A. Comisky, Linda J. Karpel, Anderson Kill & Olick, P.C., Philadelphia, PA, for Defendants.

MEMORANDUM AND ORDER
JOYNER, District Judge.
Plaintiff, Emily F. Davis, brought this action against Defendants, John Baldante and Steven E. Angstreich, and the law firm of Levy, Angstreich, Finney, Baldante, Rubenstein & Coren, P.C. Counts I, II and IV allege that Defendant law firm terminated Plaintiff's employment in violation of the Americans With Disabilities Act (ADA), 42 U.S.C. § 12101, et. seq., the Pennsylvania Human Relations Act (PHRA), 43 P.S. § 951, et. seq., and the Employee Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1132(e), 1140, respectively. Count III alleges that Defendants Angstreich and Baldante aided and abetted the discriminatory practices of the employer law firm in violation of the PHRA. Defendants Baldante and Angstreich now move to dismiss Count III pursuant to Fed.R.Civ.P. 12(b)(6), and the defendant law firm moves for a more definite statement of Count IV pursuant to Fed. R.Civ.P. 12(e). For the following reasons, both motions are denied.

Background
According to the complaint, Plaintiff was employed as an associate attorney by Levy, Angstreich, Finney, Baldante, Rubenstein & Coren, P.C. ("the law firm"), from November 27, 1995 to April 26, 1996. Prior to commencing her employment with the law firm, Ms. Davis was diagnosed as having manic depression. She did not, however, inform defendants of this diagnosis when she was hired.
On April 15, 1996, the defendant law firm placed Plaintiff on sixty days' probation for poor work performance, but assured her that no adverse action would be taken against her prior to expiration of the probationary period. One week into the probationary period, Plaintiff spoke privately with Defendant Angstreich, a partner in the defendant law firm, to discuss the firm's short and long term disability policies. Plaintiff did not disclose her medical condition at that time. On April 24, 1996, Plaintiff was questioned extensively by Defendant Baldante, also a partner in the Defendant law firm, about her basis for requesting information on the disability policy. It was at this time that Plaintiff advised Baldante of her manic depression, and also suggested that it may have been contributing to her poor work performance. Plaintiff also made certain work accommodation requests to Baldante that would enable her to cope with her condition.
The following day, Baldante informed Plaintiff that her employment was terminated effective immediately due to poor work performance and notwithstanding the fact that her sixty day probationary period had yet to expire. Plaintiff alleges that after Defendants learned of her disability, they engaged in a systematic and continuous pattern of discrimination, with the intent of depriving her of her employment.

Standards for Fed.R.Civ.P. 12(b)(6) Motions
In reviewing a motion to dismiss for failure to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6), the Court must accept as true the facts alleged in the complaint and all reasonable inferences that can be drawn after construing them in the light most favorable to the non-movant. Pearson v. Miller, 988 F.Supp. 848, 852 (M.D.Pa.1997) (citing Jordan v. Fox, Rothschild, O'Brien, and Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir.1994)). Dismissal is limited to those instances where it is certain that no relief could be granted under any set of facts that could be proved. Alexander v. Whitman, 114 F.3d 1392, 1398 (3d Cir.1997).

*887 Discussion

A. Motion to Dismiss Count III of Plaintiff's Complaint

By this motion, Defendants ask the Court to dismiss Count III for failure to state a PHRA claim upon which relief can be granted against Defendants Baldante and Angstreich given that their acts represent the acts of the firm, and therefore they cannot be viewed as aiding and abetting a PHRA violation.
Like Title VII, 42 U.S.C. § 2000e, et. seq., and the Americans with Disabilities Act, 42 U.S.C. § 12111, et. seq., § 955(a) of the PHRA, 43 P.S., renders it unlawful for an employer to discharge an employee because of a non-job related handicap, among other things. Kohn v. Lemmon Co., 1998 WL 67540, *8 (E.D.Pa.1998), (citing Dici v. Pennsylvania, 91 F.3d 542, 552 (3d Cir.1996)). Under 43 P.S. § 955(e), however, the state statute goes a step further by forbidding:
"... [a]ny person, employer, employment agency, labor organization or employee, to aid, abet, incite, compel or coerce the doing of any act declared by this section to be an unlawful discriminatory practice, or to obstruct or prevent any person from complying with the provisions of this act or any order issued thereunder, or to attempt, directly or indirectly, to commit any act declared by this section to be an unlawful discriminatory practice."
Id.; Glickstein v. Neshaminy Sch. Dist., 1997 WL 660636, *11 (E.D.Pa.1997).
In this manner, § 955(e) of the PHRA differs from Title VII, (which holds only employers liable for discrimination while exempting individual employees from liability). See Generally: Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061 (3rd Cir.1996); Dici v. Commonwealth of Pennsylvania, 91 F.3d 542, 552 (3rd Cir.1996). Thus, even notwithstanding that the PHRA is generally applied in accordance with Title VII, in the appropriate factual scenario, an individual supervisory employee can be held liable under an aiding and abetting/accomplice liability theory pursuant to § 955(e) for his own direct acts of discrimination or for his failure to take action to prevent further discrimination by an employee under supervision. Dici, supra, at 552-53 (3d Cir.1996); Frye v. Robinson Alarm Co., 1998 WL 57519, *3 (E.D.Pa.1998); Smith v. Pathmark Stores, Inc., 1998 WL 309916, *3 (E.D.Pa. 1998); Kohn v. Lemmon Co., supra, at *8; Wien v. Sun Company, Inc., 1997 WL 772810, *7 (E.D.Pa.1997); Glickstein, supra, at *12. See Also: Tyson v. CIGNA Corp., 918 F.Supp. 836, 841 (D.N.J.1996).
In application of the foregoing principles to the defendants' motion to dismiss, we find that plaintiff's complaint avers that Angstreich and Baldante were partners in the professional corporation when Plaintiff held the position of associate attorney and that they "aided, abetted, incited, compelled and coerced unlawful and intentional discrimination against Plaintiff based on her disability in direct violation of ... the Pennsylvania Human Relations Act." (Pl.'s Compl. ¶s 8-10, 31-32). Plaintiff has also alleged that she spoke with and was questioned extensively by both defendants Baldante and Angstreich regarding the firm's short and long term disability policies and that it was Baldante to whom she revealed her medical condition, requested that certain accommodations be made and who subsequently terminated her.
It is generally recognized that the difference between the rights, duties, and compensation of associates and partners in a law firm are significant, in that the role of partner is generally deemed to be supervisory and as having greater responsibilities. Graham v. State Farm Auto. Ins. Co., 1992 WL 334024, *5 (E.D.Pa.1992) (citing Harrison v. Associates Corp. of N. Am., 917 F.2d 195, 198 (5th Cir.1990)). Although the law firm is alleged to be a professional corporation which technically would have shareholders, rather than partners, we are mindful of the requirement that plaintiff's pleadings be read in the light most favorable to the plaintiff as the non-moving party. See: Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3rd Cir.1990). We therefore find that Plaintiff has adequately pled that Angstreich and Baldante are supervisors for purposes of PHRA liability and that they aided and abetted the firm in unlawfully discriminating *888 against her on the basis of her manic depression.

B. Defendants' Motion for a More Definite Statement

Defendants next assert that Count IV is vague and ambiguous as written, and Plaintiff should be ordered to provide a more definite statement, pursuant to Fed.R.Civ.P. 12(e).
Under Fed.R.Civ.P. 8(a)(2), the Plaintiff is required to plead a short and plain statement sufficient to give adequate notice of the claim to the Defendant. Foulk v. Donjon Marine Co., Inc., 144 F.3d 252, 1998 WL 231084 (3d Cir.1998) (citing Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Under Rule 12(e), if a pleading is so vague or ambiguous that the responding party could not reasonably be required to frame a responsive pleading, they may move for a more definite statement of the claim before submitting a response. Murray v. Gencorp, Inc., 979 F.Supp. 1045, 1050 (E.D.Pa.1997).
In Count IV of the complaint, the Plaintiff pled two violations of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1132, et. seq., for: (1) terminating the Plaintiff's employment in retaliation for exercising her rights to collect disability; and (2) termination of Plaintiff's health insurance coverage. (Pl.'s Compl. ¶ s 34-41.) In reading the complaint in its entirety, this Court is satisfied that Plaintiff's pleading is sufficient to enable Defendants to prepare a response. Therefore, the defendants' motion for a more definite statement will be denied.
An order follows.

ORDER
AND NOW, this 13th day of October, 1998, upon consideration of Defendants' Motions to Dismiss Count III and for a More Definite Statement of Count IV of Plaintiff's Complaint, it is hereby ORDERED that the Motions are DENIED for the reasons set forth in the preceding Memorandum Opinion.


(2008)
Giampiero LANDONI, et al., Plaintiffs,
v.
Pietro BARBI, Defendant.
Civil Action No. 07-0462 (JDB).
United States District Court, District of Columbia.
July 14, 2008.

ORDER
JOHN D. BATES, District Judge.
Plaintiffs Giampiero and Mauro Landoni bring this action against defendant Pietro Barbi for allegedly violating a guarantee agreement in which he promised to reimburse the Landonis for monies invested in a financial venture. They allege four claims: (1) breach of contract; (2) promissory estoppel; (3) negligent misrepresentation; and (4) fraudulent conveyance of property. See Am. Compl. ¶¶ 9-27. Defendant has moved to dismiss this action pursuant to Fed.R.Civ.P. 19 for failure to join another participant in the financial venture, one Musan Sikka, as a co-defendant.
The threshold requirement for determining whether litigation may proceed in the absence of a particular person or entity is whether "the absent party is `necessary to the litigation.'" See FDIC v. Bank of New York, 479 F.Supp.2d 1, 9 (D.D.C.2007) (quoting Pueblo of Sandia v. Babbitt, 47 F.Supp.2d 49, 52 (D.D.C.1999)). Rule 19(a) sets forth the standards governing persons "required" for the litigation. In relevant part, a person is "required" under the rule if "in that person's absence, the court cannot accord complete relief among existing parties," or the absent person claims an interest relating to the subject matter of the action and his absence will "leave an existing party subjeet to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest." See Fed.R.Civ.P. 19(a)(1)(A) and (a)(1)(B)(ii).
Defendant contends that Sikka is necessary to this litigation because he was the "true creator" of the underlying financial venture and thus "complete relief cannot be provided in his absence, and because defendant Pietro is left facing a substantial risk of incurring more than "his share" of the guaranty. Def.'s Mem. at 8-10. But complete relief can clearly be provided in Sikka's absence. Plaintiffs seek recovery from defendant based solely on the alleged guarantee agreement signed by defendant and an alleged fraudulent conveyance of defendant's home to avoid paymentnot on any possible malfeasance in the underlying financial venture. See Am. Compl. ¶¶ 5-27 & Exhibit B. Even if the evidence later shows that Sikka and defendant should be considered co-obligors on the alleged guarantee agreement, "[i]t has long been the rule that it is not necessary for all joint tortfeasors to be named as defendants in a single lawsuit." Temple v. Synthes Corp., Ltd., 498 U.S. 5, 7, 111 S.Ct. 315, 112 L.Ed.2d 263 (1990); see also Janney Montgomery Scott, Inc. v. Shepard Niles, Inc., 11 F.3d 399, 408 (3d Cir. 1993) ("`the joinder of obligors is left to the plaintiffs discretion by many courts and he may select defendants without being concerned about dismissal because of nonjoinder'") (quoting 7 Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure § 1613, at 182-85 (2d ed.1986)). Furthermore, there is no concern regarding a "double" or "multiple" recovery against defendant Barbi because plaintiffs are the sole possessors of the rights being asserted against him. See Primax Recoveries, Inc. v. Lee, 260 F.Supp.2d 43, 51 (D.D.C.2003) (holding that joinder was not required where plaintiff was the "sole possessor of the rights being asserted" and hence no multiple or inconsistent obligations could arise).
Accordingly, it is hereby
ORDERED that defendant's motion to dismiss is DENIED.
SO ORDERED.