NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 20 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

PATRICK BRADY, No. 21-16386

Plaintiff-Appellant, D.C. No. 2:21-cv-00489-TLN-AC

v.

MEMORANDUM*

SCOTT JONES, Sheriff; ERIK MANESS, Sheriff; BRANDON LUKE, Commander; SHAUN HAMPTUN, Deputy Sheriff; SAIKA, Sargent; VILLANUEVA, Sargant; DONALD WASHINGTON, U.S. Marshal’s National Director; LASHA BOYDEN, U.S. Marshal; HEADLY; MEEKS; FISHER;

PFAU,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California Troy L. Nunley, District Judge, Presiding

Submitted March 14, 2023**

Before: SILVERMAN, SUNG, and SANCHEZ, Circuit Judges.

Former California pretrial detainee Patrick Brady appeals pro se from the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging

constitutional violations. We have jurisdiction under 28 U.S.C. § 1291. We

review de novo a district court’s dismissal under 28 U.S.C. § 1915A. Resnick v.

Hayes, 213 F.3d 443, 447 (9th Cir. 2000). We affirm in part, reverse in part, and

remand.

The district court properly dismissed Brady’s claim that defendants were

deliberately indifferent to his safety because Brady failed to allege facts sufficient

to show that defendants exposed Brady to a substantial risk of serious harm. See

Farmer v. Brennan, 511 U.S. 825, 837 (1994) (a prison official is deliberately

indifferent only if he or she “knows of and disregards an excessive risk to inmate

health or safety; the official must both be aware of facts from which the inference

could be drawn that a substantial risk of serious harm exists, and he [or she] must

also draw the inference”).

The district court dismissed Brady’s due process claim arising from his

placement in a Total Separation Unit on the ground that Brady failed to allege facts

sufficient to show punitive intent on the part of any defendant. However, Brady

alleged that the reasons given for his placement in the Total Separation Unit did

not justify such a restrictive housing designation. Liberally construed, these

allegations are sufficient to state a plausible due process claim. See Bell v. Wolfish,

441 U.S. 520, 535 (1979) (pretrial detainees have a substantive due process right to

2 21-16386 be free from restrictions that amount to punishment); Valdez v. Rosenbaum, 302

F.3d 1039, 1045-46 (9th Cir. 2002) (“[P]unitive intent can be inferred from the

nature of the restriction. This determination . . . will generally turn upon whether

an alternative purpose to which the restriction may rationally be connected is

assignable for it, and whether the restriction appears excessive in relation to the

alternative purpose assigned to it.” (citations and quotation marks omitted)).

The district court dismissed Brady’s claim for violation of his right to confer

privately with counsel because Brady failed to demonstrate any resulting injury to

his defense in his criminal case. However, a showing of actual injury to a legal

claim is not required to state a claim for violation of attorney-client confidentiality

under the First and Sixth Amendments. See Hayes v. Idaho Corr. Ctr., 849 F.3d

1204, 1212 (9th Cir. 2017) (allegation that the right to privately confer with

counsel has been chilled is sufficient to state a First Amendment claim; prisoner

does not need to “show any actual injury beyond the free speech violation itself to

state a constitutional claim” (citation and quotation marks omitted)); Mangiaracina

v. Penzone, 849 F.3d 1191, 1196-97 (9th Cir. 2017) (violation of attorney-client

confidentiality in connection with a criminal case is actionable under the Sixth

Amendment).

In sum, we affirm the judgment as to Brady’s deliberate indifference to

safety claim, reverse the judgment as to Brady’s claims related to his placement in

3 21-16386 the Total Separation Unit and interference with his confidential legal visits, and

remand for further proceedings.

We do not consider matters not specifically and distinctly raised and argued

in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED in part, REVERSED in part, and REMANDED.

4 21-16386