762 F.3d 903 (9th Cir. 2014), 12-15738, Nordstrom v. Ryan

Docket Nº:12-15738
Citation:762 F.3d 903
Opinion Judge:SILVERMAN, Circuit Judge:
Party Name:SCOTT D. NORDSTROM, Plaintiff-Appellant, v. CHARLES L. RYAN, Director of ADOC; A. RAMOS, Deputy Warden; F. HAWTHORNE, Defendants-Appellees
Attorney:Michelle King (argued) and Joy Nissen (argued), Certified Law Student Representatives, and Gregory C. Sisk, Supervising Attorney, University of St. Thomas School of Law Appellate Clinic, Minneapolis, Minnesota; Mason Boling and Lauren E. Murphy, Certified Law Student Representatives, and Dustin E...
Judge Panel:Before: Barry G. Silverman, William A. Fletcher, and Jay S. Bybee, Circuit Judges. Opinion by Judge Silverman; Dissent by Judge Bybee. BYBEE, Circuit Judge, dissenting:
Case Date:August 11, 2014
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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762 F.3d 903 (9th Cir. 2014)

SCOTT D. NORDSTROM, Plaintiff-Appellant,

v.

CHARLES L. RYAN, Director of ADOC; A. RAMOS, Deputy Warden; F. HAWTHORNE, Defendants-Appellees

No. 12-15738

United States Court of Appeals, Ninth Circuit

August 11, 2014

Argued and Submitted, San Francisco, California: April 7, 2014.

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the District of Arizona. D.C. No. 2:11-cv-02344-DGC-MEA. David G. Campbell, District Judge, Presiding.

SUMMARY[*]

Prisoner Civil Rights

The panel reversed the district court's dismissal, for failure to state a claim, and remanded in an action brought by an Arizona state prisoner who alleged constitutional violations when prison officials read a confidential letter he intended to send to his lawyer, instead of merely scanning and inspecting the letter for contraband.

The panel held that plaintiff's allegations that prison officials read his legal mail, that they claimed entitlement to do so, and that his right to private consultation with counsel had been chilled stated a Sixth Amendment claim. The panel also held that the allegations supported a claim for injunctive relief.

Dissenting, Judge Bybee stated that the Sixth Amendment does not prevent prison officials from reading legal letters with an eye toward discovering illegal conduct and that plaintiff also failed to allege any actual injury.

Michelle King (argued) and Joy Nissen (argued), Certified Law Student Representatives, and Gregory C. Sisk, Supervising Attorney, University of St. Thomas School of Law Appellate Clinic, Minneapolis, Minnesota; Mason Boling and Lauren E. Murphy, Certified Law Student Representatives, and Dustin E. Buehler, Supervising Attorney, University of Arkansas Federal Appellate Litigation Project, Fayetteville, Arkansas, for Plaintiff-Appellant.

Thomas C. Horne, Attorney General, and Neil Singh (argued), Assistant Attorney General, Office of the Arizona Attorney General, Phoenix, Arizona, for Amicus Curiae the State of Arizona.

Donald Specter and Corene Kendrick, Prison Law Office, Berkeley, California, for Amici Curiae American Civil Liberties Union, Prison Law Office, and Arizona Center for Disability Law.

Amy Armstrong and Natman Schaye, Tucson, Arizona, for Amicus Curiae Arizona Capital Representation Project.

Kelly A. Kszywienski, Snell & Wilmer, Phoenix, Arizona; Lawrence Fox, Yale Law School, New Haven, Connecticut, for Amicus Curiae Ethics Bureau at Yale.

Bryan A. Stevenson, Carla C. Crowder, and Benjamin H. Schaefer, Montgomery, Alabama, for Amicus Curiae the Equal Justice Initiative.

Before: Barry G. Silverman, William A. Fletcher, and Jay S. Bybee, Circuit Judges. Opinion by Judge Silverman; Dissent by Judge Bybee.

OPINION

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SILVERMAN, Circuit Judge:

Plaintiff-Appellant Scott Nordstrom is on death row in the Arizona State Prison. He alleges that when he sought to send a confidential letter -- " legal mail" -- to his lawyer, a prison guard actually read the letter, instead of merely scanning and inspecting the letter for contraband. He claims that when he protested to the guard that the letter was a confidential attorney-client communication and should not be read, the guard told him to go pound sand. Nordstrom's formal grievances were denied on the stated ground that Department of Corrections staff " is not prohibited from reading the [legal] mail to establish the absence of contraband and ensure the content of the mail is of legal subject matter."

Nordstrom then brought a 42 U.S.C. § 1983 lawsuit against Department of Corrections officials, as well as the officer who allegedly read his legal mail, seeking to enjoin them from reading his letters to his lawyer. He alleges that the defendants' conduct violates various constitutional rights, including his Sixth Amendment right to counsel. The district court dismissed the complaint at the pre-answer screening stage for failure to state a claim under any constitutional theory. See 28 U.S.C. § 1915A.

A prison is no ordinary gated community. It's a tough place. Corrections officials obviously have good reason to be on the lookout for contraband, escape plans, and other mischief that could jeopardize institutional security. Officials likewise have every right to inspect an inmate's outgoing legal mail for such suspicious features as maps of the prison yard, the times of guards' shift changes, and the like. Prison officials know what to look for. But inspecting letters and reading them are two different things, as the Supreme Court recognized in Wolff v. McDonnell, 418 U.S. 539, 576-77, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). What prison officials don't have the right to do is read a confidential letter from an inmate to his lawyer. This is because it is highly likely that a prisoner would not feel free to confide in his lawyer such things as incriminating or intimate personal information -- as is his Sixth Amendment right to do -- if he knows that the guards are reading his mail.

Reading legal mail -- not merely inspecting or scanning it -- is what Nordstrom alleges the Department of Corrections is doing, and it is what he seeks to enjoin. We hold today that his allegations, if true, state a Sixth Amendment violation. We reverse the dismissal of his complaint.

BACKGROUND

In reviewing an order dismissing a case for failure to state a claim, we " take as true all factual allegations in the complaint and draw all reasonable inferences in the plaintiff's favor." Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011).

Nordstrom's claims against Charles L. Ryan, the ADC Director, A. Ramos, the Deputy Warden of ADC-Eyman, and F. Hawthorne, a correctional officer, center

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around the ADC's policies and practices concerning outgoing legal mail. Nordstrom alleges that on May 2, 2011, he prepared a letter to send to Sharmila Roy, the court-appointed lawyer representing him in the appeal of his murder conviction and death sentence. The envelope was marked " legal mail" and was addressed to " Attorney at Law Sharmila Roy, Esq." Nordstrom notified Officer Hawthorne, who was conducting a security walk, that he had legal mail ready to be processed. Nordstrom alleges that Hawthorne " took [the] clearly marked 'legal mail' envelope and removed the two page letter and proceeded to read the content of [the] correspondence." Nordstrom asked Hawthorne to stop reading his " attorney-client privileged correspondence." Hawthorne responded: " [D]on't tell me how to do my job; I am authorized to search legal mail for contraband as well as scan the content of the material to ensure it is of legal subject matter." Nordstrom then told Hawthorne he " was not authorized to read [the] legal letter, only inspect for contraband; seal, stamp, and log." Hawthorne again told Nordstrom he " was not in a position to tell him how to do his job" and " shoved [the] letter" back to Nordstrom. Nordstrom sealed the letter and placed it in the door, and it was gone the next morning.

Nordstrom filed a series of grievances complaining that Hawthorne read his privileged letter. His final appeal was to ADC Director Ryan. Ryan's response cited the ADC's written legal mail policy, Order 902.11, which states in relevant part:

1.4.2.2 All outgoing letters to an inmate's attorney or to a judge or court shall be brought to the mail room by the inmate, where the letter shall not be read or censored but shall be inspected for contraband and sealed in the presence of the inmate. All outgoing legal documents to an inmate's attorney or to a judge or court (other than letters to an inmate's attorney or to a judge or court, such as pleadings, briefs and motions) shall not be censored, but staff are not prohibited from reading such documents to the extent necessary to establish the absence of contraband.

(Emphasis added.) In denying Nordstrom's grievance, Ryan 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." (Emphasis added.)

Nordstrom alleges that Officer Hawthorne's conduct and Director Ryan's approval of that conduct " forced him to cease conveying critically sensitive information concerning necessary aspects of his case for appellate adjudication to his attorney due to [ADC]'s continued threat to read any outgoing legal correspondence."

Nordstrom filed this § 1983 action pro se alleging that the ADC's policy and practice of reading his outgoing legal mail violates his First, Sixth, and Fourteenth Amendment rights. In addition to costs, he seeks a declaration that the defendants' conduct was unconstitutional and an injunction preventing them from reading his legal mail in the future.

The district court dismissed the first amended complaint with prejudice at the pre-answer screening stage under the Prison Litigation Reform Act (" PLRA" ), 28 U.S.C. § 1915A.1 First, the court held

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that Nordstrom could not state a claim for violation of his right of access to the courts because he failed to allege Hawthorne's conduct caused him actual injury. Second, it held that Nordstrom failed to state a claim for violation of his right to counsel; the court stated that he did not demonstrate that the ADC had a policy of reading legal mail or show how the " one-time occurrence" of Hawthorne reading the confidential letter " impacted the attorney-client relationship." The court also ruled that a policy permitting staff to scan legal mail is permissible. Third and finally, the district court held that Nordstrom had no cognizable free speech claim because " the reading of an inmate's legal mail, in the inmate's presence, to check for the presence of contraband or illegal activity is the type of regulation allowed for the purpose of maintaining institutional security."

DISCUSSION

I. Legal Standards

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