Scott Nordstrom v. Charles Ryan

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SCOTT D. NORDSTROM, No. 12-15738

Plaintiff-Appellant,

D.C. No.

v. 2:11-cv-02344-

DGC-MEA

CHARLES L. RYAN, Director of

ADOC; A. RAMOS, Deputy Warden;

F. HAWTHORNE, OPINION

Defendants-Appellees.

Appeal from the United States District Court

for the District of Arizona

David G. Campbell, District Judge, Presiding

Argued and Submitted

April 7, 2014—San Francisco, California

Filed August 11, 2014

Before: Barry G. Silverman, William A. Fletcher,

and Jay S. Bybee, Circuit Judges.

Opinion by Judge Silverman;

Dissent by Judge Bybee

2 NORDSTROM V. RYAN

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.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

NORDSTROM V. RYAN 3

COUNSEL

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.

4 NORDSTROM V. RYAN

OPINION

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

NORDSTROM V. RYAN 5

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

(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 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

6 NORDSTROM V. RYAN

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

NORDSTROM V. RYAN 7

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

1

The PLRA contains a provision requiring district courts to screen

prisoner complaints before or soon after docketing if the case is “a civil

action in which a prisoner seeks redress from a governmental entity or

officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). A

court must dismiss a complaint if it is “frivolous, malicious, or fails to

state a claim upon which relief may be granted,” or if it “seeks monetary

relief from a defendant who is immune from such relief.” 28 U.S.C.

§ 1915A(b). The purpose of § 1915A is “to ensure that the targets of

8 NORDSTROM V. RYAN

First, the court held 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

We have jurisdiction pursuant to 28 U.S.C. § 1291, and

we review de novo a district court’s dismissal of a complaint

under 28 U.S.C. § 1915A for failure to state a claim. Resnick

v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).

Dismissal for failure to state a claim under § 1915A

“incorporates the familiar standard applied in the context of

failure to state a claim under Federal Rule of Civil Procedure

12(b)(6).” Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.

2012). To survive § 1915A review, a complaint must

frivolous or malicious suits need not bear the expense of responding.”

Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir.

2012).

NORDSTROM V. RYAN 9

“contain sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face.” Id. (quoting

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal

quotation marks omitted)). 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.” Id. (quoting

Silva, 658 F.3d at 1101); see Schucker v. Rockwood, 846 F.2d

1202, 1203–04 (9th Cir. 1988) (“Dismissal of a pro se

complaint without leave to amend is proper only if it is

absolutely clear that the deficiencies of the complaint could

not be cured by amendment.” (internal quotation marks

omitted)).

II. Constitutional Framework

Federal courts have traditionally “adopted a broad hands-

off attitude toward problems of prison administration”

because “courts are ill equipped to deal with the increasingly

urgent problems of prison administration and reform.”

Procunier v. Martinez, 416 U.S. 396, 404–05 (1974),

overruled in part by Thornburgh v. Abbott, 490 U.S. 401

(1989). Nonetheless, “[p]rison walls do not form a barrier

separating prison inmates from the protections of the

Constitution,” Turner v. Safley, 482 U.S. 78, 84 (1987), and

a court will intervene “[w]hen a prison regulation or practice

offends a fundamental constitutional guarantee,” Martinez,

416 U.S. at 405.

The Supreme Court spoke on the issue of the inspection

of prisoner legal mail in Wolff v. McDonnell, 418 U.S. 539

(1974). In Wolff, the Supreme Court upheld a Nebraska

prison regulation that allowed prison officials to open and

inspect – but not read – legal mail sent to an inmate:

10 NORDSTROM V. RYAN

As to the ability to open the mail in the

presence of inmates, this could in no way

constitute censorship, since the mail would

not be read. Neither could it chill such

communications, since the inmate’s presence

insures that prison officials will not read the

mail. The possibility that contraband will be

enclosed in letters, even those from apparent

attorneys, surely warrants prison officials’

opening the letters . . . . [W]e think that

petitioners, by acceding to a rule whereby the

inmate is present when mail from attorneys is

inspected, have done all, and perhaps even

more, than the Constitution requires.

Id. at 577 (emphasis added).

Following Wolff, 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.2 Courts also have

2

See, e.g., Guajardo-Palma v. Martinson, 622 F.3d 801, 802 (7th Cir.

2010) (declining to analyze prisoner legal mail claim under the First

Amendment and instead basing “the concern with destroying that

[attorney-client] confidentiality on the right of access to the courts” or “on

the due process right to a fair hearing”); Al-Amin v. Smith, 511 F.3d 1317,

1334–35 (11th Cir. 2008) (concluding that a prison policy of opening a

prisoner’s legal mail outside of his presence violated his “First

Amendment free speech right to communicate with his attorneys by

mail”); Jones v. Brown, 461 F.3d 353, 359 (3d Cir. 2006) (“A state pattern

and practice, or . . . explicit policy, of opening legal mail outside the

NORDSTROM V. RYAN 11

recognized that “while most cases brought by prisoners are

civil . . . [a] practice of prison officials reading mail between

a prisoner and his lawyer in a criminal case would raise

serious issues under the Sixth Amendment . . . which

guarantees a right to counsel in criminal cases.” Guajardo-

Palma v. Martinson, 622 F.3d 801, 803 (7th Cir. 2010); see

also Merriweather v. Zamora, 569 F.3d 307, 317 (6th Cir.

2009) (“[O]pening properly marked legal mail alone . . .

implicates both the First and Sixth Amendments because of

the potential for a ‘chilling effect.’”); Altizer v. Deeds, 191

F.3d 540, 549 n.14 (4th Cir. 1999) (“Inspecting an inmate’s

legal mail may implicate the inmate’s Sixth Amendment right

to communicate freely with his attorney in a criminal case.”).

Nordstrom alleges that the defendants’ conduct interfered

with attorney-client communications related to the appeal of

his murder conviction and death sentence. His claims

therefore fall squarely within the scope of the Sixth

Amendment right to counsel, and we do not consider whether

he also states claims for infringement of his rights to free

speech and/or access to the courts.

III. Sixth Amendment Right to Counsel

The Sixth Amendment provides that “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to have the

Assistance of Counsel for his defence.” U.S. Const. amend.

VI; see also Gideon v. Wainwright, 372 U.S. 335, 342–43

(1963) (holding that Sixth Amendment right to counsel

extends to state court proceedings through the Fourteenth

Amendment). The right to counsel “is a fundamental

presence of the addressee inmate . . . impinges upon the inmate’s right to

freedom of speech.”).

12 NORDSTROM V. RYAN

component of our criminal justice system,” and “[l]awyers in

criminal cases are necessities, not luxuries.” United States v.

Cronic, 466 U.S. 648, 653 (1984) (internal quotation marks

omitted). “When the government deliberately interferes with

the confidential relationship between a criminal defendant

and defense counsel, that interference violates the Sixth

Amendment right to counsel if it substantially prejudices the

criminal defendant.” Williams v. Woodford, 384 F.3d 567,

584–85 (9th Cir. 2004); see United States v. Irwin, 612 F.2d

1182, 1186–87 (9th Cir. 1980).

A criminal defendant’s ability to communicate candidly

and confidentially with his lawyer is essential to his defense.

In American criminal law, the right to privately confer with

counsel is nearly sacrosanct. See Adams v. Carlson, 488 F.2d

619, 631 (7th Cir. 1973). It is obvious to us that a policy or

practice permitting prison officials to not just inspect or scan,

but to read an inmate’s letters to his counsel is highly likely

to inhibit the sort of candid communications that the right to

counsel and the attorney-client privilege are meant to protect.

As one court put it, “[i]t is well established that an accused

does not enjoy the effective aid of counsel if he is denied the

right of private consultation with him.” Coplon v. United

States, 191 F.2d 749, 757 (D.C. Cir. 1951); see Mastrian v.

McManus, 554 F.2d 813, 821 (8th Cir. 1977). It 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.

Other courts have come to similar conclusions. See, e.g.,

Lemon v. Dugger, 931 F.2d 1465, 1468 (11th Cir. 1991)

(recognizing inmate’s “constitutional right not to have his

NORDSTROM V. RYAN 13

mail read” and holding that inmate stated a claim where a

prison official read a letter from his death penalty appellate

attorney in his presence); Al-Amin, 511 F.3d at 1323 n.13

(“Nor do defendants deny that the law is well-established that

Al-Amin has a constitutional right that precludes them from

reading Al-Amin’s attorney mail.”); see also, e.g., Peterson

v. Arpaio, No. CV04-2276-PHX-SMM-LOA, 2006 WL

3736060, at *4 (D. Ariz. Nov. 21, 2006) (“Prisoners have a

constitutional right to have their legal mail delivered to them

uncensored and unread.”).

The defendants contend that they are permitted to read

Nordstrom’s legal mail as long as they do so in his presence.

But they fail to explain how that practice ameliorates the

chilling effect likely to result from an inmate’s knowledge

that every word he writes to his lawyer may be intercepted by

prison guards and possibly used against him. Rather, the

practice of requiring an inmate to be present when his legal

mail is opened is a measure designed to prevent officials from

reading the mail in the first place. See Wolff, 418 U.S. at 577

(opening attorney mail in the presence of the inmate could not

“chill such communications, since the inmate’s presence

insures that prison officials will not read the mail”); see also,

e.g., Gardner v. Howard, 109 F.3d 427, 431 (8th Cir. 1997)

(“The policy that incoming confidential legal mail should be

opened in inmates’ presence . . . serves the prophylactic

purpose of assuring them that confidential attorney-client

mail has not been improperly read in the guise of searching

for contraband.”).

We emphasize that nothing prevents the ADC from

inspecting an inmate’s outgoing mail, in his presence, to

make sure that it does not contain, for example, a map of the

prison yard, the time of guards’ shift changes, escape plans,

14 NORDSTROM V. RYAN

or contraband. What the Constitution does not permit,

however, is reading outgoing attorney-client correspondence.

And by the way, neither does the ADC’s own regulation.

Order 902.11.1.4.2.2 specifically states that “[a]ll outgoing

letters to an inmate’s attorney . . . shall not be read or

censored but shall be inspected for contraband and sealed in

the presence of the inmate.”3 While a prison regulation does

not equate to a constitutional right, it just goes to show that

even the ADC understands that legal mail should not be

messed with unnecessarily.

Were Nordstrom challenging a conviction following an

improper intrusion into the attorney-client relationship, we

would examine whether the violation caused prejudice

requiring the reversal of the conviction. See Weatherford v.

Bursey, 429 U.S. 545, 558 (1977); Irwin, 612 F.2d at

1185–89. Nordstrom’s case, however, is a civil rights lawsuit

aimed at enjoining the continuation of an unconstitutional

practice. The harm Nordstrom alleges is not that tainted

evidence was used against him but that his right to privately

confer with counsel has been chilled. This is a plausible

consequence of the intentional reading of his confidential

legal mail. Cf. Weatherford, 429 U.S. at 554 n.4 (“One threat

to the effective assistance of counsel posed by government

interception of attorney-client communications lies in the

inhibition of free exchanges between defendant and counsel

because of the fear of being overheard.”).

3

The regulation further states that, in contrast to letters, other “outgoing

legal documents . . . such as pleadings, briefs and motions,” may be read

“to the extent necessary to establish the absence of contraband.” This

portion of 902.11.1.4.2.2 is not implicated because Nordstrom specifically

alleges that Hawthorne read his confidential legal letter.

NORDSTROM V. RYAN 15

In sum, Nordstrom’s allegations that prison officials read

his legal mail, that they claim entitlement to do so, and that

his right to private consultation with counsel has been chilled

state a Sixth Amendment claim.

IV. Injunctive Relief

Nordstrom’s allegations also support a claim for

injunctive relief. A plaintiff seeking prospective injunctive

relief “must demonstrate ‘that he is realistically threatened by

a repetition of [the violation].’” Armstrong v. Davis, 275 F.3d

849, 860–61 (9th Cir. 2001) (alteration in original) (quoting

City of L.A. v. Lyons, 461 U.S. 95, 109 (1983)), abrogated on

other grounds by Johnson v. California, 543 U.S. 499,

504–05 (2005). A threat of repetition can be shown “at least

two ways.” Id. at 861. “First, a plaintiff may show that the

defendant had, at the time of the injury, a written policy, and

that the injury ‘stems from’ that policy.” Id. “Second, the

plaintiff may demonstrate that the harm is part of a ‘pattern

of officially sanctioned . . . behavior, violative of the

plaintiffs’ [federal] rights.’” Id. (alterations in original)

(quoting LaDuke v. Nelson, 762 F.2d 1318, 1324 (9th Cir.

1985)).

Nordstrom alleges that the ADC has a policy and practice

of reading his outgoing legal mail. He supports this

allegation with the grievance appeal response from Director

Ryan that states that “[s]taff 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.”

This statement, signed by Director Ryan himself, supports

Nordstrom’s allegations that Hawthorne’s conduct was not

simply a one-time mistake or confusion over the contours of

the ADC policy. Inasmuch as Nordstrom remains

16 NORDSTROM V. RYAN

incarcerated and alleges the ADC Director has personally

informed him that prison officials are permitted to read his

legal mail, he has adequately alleged the threatened repetition

of the alleged Sixth Amendment violation.

CONCLUSION

We REVERSE the district court’s dismissal for failure to

state a claim and REMAND for further proceedings.

BYBEE, Circuit Judge, dissenting:

Scott D. Nordstrom alleges that, on one occasion during

his seventeen-year incarceration, an Arizona Department of

Corrections (ADC) officer read a single letter he had written

to his attorney. Nordstrom claims that this one event

prejudiced his direct appeal, although he cannot explain how.

Based on these allegations, the majority concludes that

Nordstrom has adequately pleaded a violation of his Sixth

Amendment right to counsel. I believe the majority is twice

wrong. First, the majority has misread Wolff v. McDonnell,

418 U.S. 539 (1974), to hold that prison officials may not

read legal letters, even to the limited extent necessary to

detect illegal conduct. See Maj. Op. at 14. Second, the

majority disregards Williams v. Woodford, 384 F.3d 567 (9th

Cir. 2004), by holding that an inmate need not show

substantial prejudice to state a right-to-counsel claim, as long

as this court thinks that such prejudice is likely. See Maj. Op.

at 14.

NORDSTROM V. RYAN 17

In my view, the Sixth Amendment does not prevent

prison officials from reading legal letters with an eye toward

discovering illegal conduct. Furthermore, claims under the

Sixth Amendment require proof of actual injury, and

Nordstrom does not allege any. I respectfully dissent.

I

Nordstrom’s claims arise out of ADC’s alleged

mishandling of one legal letter. ADC maintains a written

policy regarding the processing of outgoing legal mail. It

provides, in relevant part, as follows:

1.1 Inmates shall identify outgoing legal mail

by writing “Legal Mail” on the lower left-

hand corner of the envelope. . . .

...

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.

18 NORDSTROM V. RYAN

Department Order 902:11 (emphasis added). ADC’s policy

thus distinguishes between outgoing legal letters, which

“shall not be read or censored but shall be inspected for

contraband,” and outgoing legal documents, which “shall not

be censored” but may be read.

Nordstrom claims that ADC has a pattern and practice of

reading his legal letters in violation of its own written policy,

which forbids the reading of such letters. Specifically,

Nordstrom alleges that on May 2, 2011, he wrote a letter to

Sharmila Roy, his court-appointed attorney. The letter was

marked “legal mail” and was addressed to Roy. When

Nordstrom notified Officer Hawthorne that he had legal mail

to send, Officer Hawthorne allegedly “removed the two page

letter and proceeded to read the content of [the]

correspondence.” Nordstrom asked Officer Hawthorne to stop

reading the letter approximately fifteen seconds later. Officer

Hawthorne refused, explaining that he “[was] authorized to

search legal mail for contraband as well as scan the content

of the material to ensure it [was] of legal subject matter.”

Nordstrom again protested. Officer Hawthorne told

Nordstrom that he “was not in a position to tell him how to do

his job” and “shoved [the] letter” in Nordstrom’s door.

Nordstrom then sealed the envelope and placed it in the door.

The letter was gone the next day.

Nordstrom initiated the four-step grievance process. At

the fourth and final step of the grievance process, Nordstrom

appealed to ADC Director Ryan. After quoting ADC’s legal

mail policy, Ryan stated 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.” In this statement, Ryan referenced only

“the mail,” blurring the important distinction between legal

NORDSTROM V. RYAN 19

letters and legal documents under ADC’s written policy.

Ryan thus concluded that no action was warranted in

response to Nordstrom’s grievance.

Nordstrom filed a civil rights complaint in federal district

court. In the complaint, Nordstrom alleges that ADC violated

his First, Sixth, and Fourteenth Amendment rights. The

district court dismissed the complaint at the screening stage

under the Prison Litigation Reform Act (PLRA), 28 U.S.C.

§ 1915A, for failure to state a claim. The district court

carefully outlined the deficiencies in the complaint,

explaining that the First Amendment does not prohibit an

officer from reading legal mail in an inmate’s presence with

an eye to determining whether it advances illegal conduct,

that Nordstrom had failed to allege the actual injury necessary

for an access-to-court claim, and that he had failed to allege

the requisite prejudice to state a right-to-counsel claim. The

district court granted Nordstrom leave to file an amended

complaint to cure his deficient allegations.

Nordstrom then filed his first amended complaint, again

claiming that ADC violated his First, Sixth, and Fourteenth

Amendment Rights. The first amended complaint alleges that

ADC’s practice of reading Nordstrom’s outgoing legal letters

“has forced him to cease conveying critically sensitive

information concerning necessary aspects of his case for

appellate adjudication to his attorney.” He provides no hint as

to what type of information this might be. Nordstrom

acknowledges, however, that he has not yet suffered prejudice

from ADC’s allegedly unconstitutional practice, stating that

“[he] is incapable of prophesying . . . the prejudicial effects

of [ADC’s] actions . . . in the adjudication of [his] appeal.”

Noting Nordstrom’s failure to cure the deficiencies identified

20 NORDSTROM V. RYAN

in the original complaint, the district court dismissed the first

amended complaint with prejudice for failure to state a claim.

II

The opening and inspecting of inmates’ mail raises

important concerns under the First, Sixth, and Fourteenth

Amendments. See Thornburgh v. Abbott, 490 U.S. 401

(1989) (prisoner receipt of outside publications); Turner v.

Safley, 482 U.S. 78 (1987) (inmate-to-inmate

correspondence); Wolff v. McDonnell, 418 U.S. 539 (1974)

(incoming mail to inmates from attorneys); Procunier v.

Martinez, 416 U.S. 396 (1974) (incoming and outgoing

prisoner non-legal mail), overruled in part by Thornburgh,

490 U.S. 401. Although an inmate’s “rights may be

diminished by the needs and exigencies of the institutional

environment, a prisoner is not wholly stripped of

constitutional protections.” Wolff, 418 U.S. at 555. After

Turner, “when a prison regulation impinges on inmates’

constitutional rights, the regulation is valid if it is reasonably

related to legitimate penological interests.” Turner, 482 U.S.

at 89.

Of particular concern is “the extent to which prison

authorities can open and inspect incoming mail from

attorneys to inmates,” Wolff, 418 U.S. at 574, and similar

“outgoing correspondence,” Abbott, 490 U.S. at 413.

Although “[t]he implications of outgoing correspondence for

prison security are of a categorically lesser magnitude than

the implications of incoming materials,” id.,

legitimate governmental interest in the order

and security of penal institutions justifies the

imposition of certain restraints on inmate

NORDSTROM V. RYAN 21

correspondence. Perhaps the most obvious

example of justifiable censorship of prisoner

mail would be refusal to send or deliver letters

concerning escape[] plans or containing other

information concerning proposed criminal

activity, whether within or without the prison.

Martinez, 416 U.S. at 412–13.

My disagreement with the majority begins with its

reading of Wolff v. McDonnell. There, the Supreme Court

granted review to consider a Nebraska prison regulation,

which provided that “[a]ll incoming and outgoing mail will

be read and inspected,” without exception for legal letters.

Wolff, 418 U.S. at 574. Wolff maintained that this policy

violated his First, Sixth, and Fourteenth Amendment rights.

Id. at 575. Before the Supreme Court decided the case,

however, Nebraska prison officials altered their position,

conceding that they could not read legal letters. Accordingly,

the Supreme Court did not consider Nebraska’s written

regulation. Instead, prison officials contended that they could

open legal letters as long as they did so in the inmate’s

presence. As the Supreme Court put it, “[t]he narrow issue

thus presented [was] whether letters determined or found to

be from attorneys may be opened by prison authorities in the

presence of the inmate.” Id. (emphasis added).

The Court first observed that “the constitutional status of

the rights asserted . . . [was] far from clear.” Id. Although

“First Amendment rights of correspondents with prisoners

may protect against the censoring of inmate mail, when not

necessary to protect legitimate governmental interests, [the

Supreme] Court ha[d] not yet recognized First Amendment

22 NORDSTROM V. RYAN

rights of prisoners in this context.”1 Id. at 575–76 (emphasis

added) (citations omitted). And, in any event, “freedom from

censorship is not equivalent to freedom from inspection or

perusal.” Id. at 576. The Court expressed similar skepticism

regarding Wolff’s Sixth and Fourteenth Amendment claims.

Id.

In the end, the Court concluded that it did not need to

decide “which, if any, of the asserted rights [were] operative”

in Wolff’s case. Id. The Court simply “assum[ed] some

constitutional right [was] implicated,” id., and found the

prison’s policy constitutionally permissible:

As to the ability to open the mail in the

presence of inmates, this could in no way

constitute censorship, since the mail would

not be read. Neither could it chill such

communications, since the inmate’s presence

insures that prison officials will not read the

mail. The possibility that contraband will be

enclosed in letters, even those from apparent

attorneys, surely warrants prison officials’

opening the letters. . . . [W]e think that [prison

officials], by acceding to a rule whereby the

inmate is present when mail from attorneys is

inspected, have done all, and perhaps even

more, than the Constitution requires.

Id. at 577 (emphasis added).

1

Forty years have passed since Wolff, and the Supreme Court still has

not recognized this First Amendment right.

NORDSTROM V. RYAN 23

According to the majority here, “[w]hat prison officials

don’t have the right to do is read a confidential letter from an

inmate to his lawyer.” Maj. Op. at 5. But Wolff doesn’t say

that. The majority makes such a broad statement in part

because it reads Wolff’s holding—that prison officials may

open legal letters in an inmate’s presence—as “a measure

designed to prevent officials from reading the mail in the first

place.” Id. at 13. Others have taken this position before.

Gardner v. Howard, 109 F.3d 427, 431 (8th Cir. 1997) (“The

policy that incoming confidential legal mail should be opened

in inmates’ presence . . . serves the prophylactic purpose of

assuring them that confidential attorney-client mail has not

been improperly read in the guise of searching for

contraband.”); see also Stanley v. Vining, 602 F.3d 767, 773

(6th Cir. 2010) (Cole, J., concurring in part and dissenting in

part) (“[T]he Wolff Court specifically recognized that the

rationale behind prohibiting prison officials from opening

legal mail outside the recipient prisoner’s presence was to

deter the officials from reading such mail.”). But I believe

they, like the majority, are in error.

The touchstone of Wolff’s analysis is censorship and the

chilling of legal communications, not reading. See Wolff, 418

U.S. at 575 (noting that “First Amendment rights of

correspondents with prisoners may protect against the

censoring of inmate mail” but that “freedom from censorship

is not equivalent to freedom from inspection or perusal”); id.

at 577 (“As to the ability to open the mail in the presence of

inmates, this could in no way constitute censorship, since the

mail would not be read. Neither could it chill such

24 NORDSTROM V. RYAN

communications, since the inmate’s presence insures that

prison officials will not read the mail.”).2

Furthermore, the Supreme Court did not equate reading

with chilling or censoring legal communications. Rather, the

Court reasoned that if prison officials were no longer reading

legal letters—Nebraska’s mid-course change in strategy—

there could be neither censorship nor chilling of legal

communications. This does not mean that if prison officials

do read legal letters, it follows that there must be censorship

or the chilling of legal communications, as the majority

suggests. Indeed, the Supreme Court acknowledged this fact

when it emphasized that “freedom from censorship is not

equivalent to freedom from inspection or perusal,” id. at 576,

and suggested that Nebraska had “done all, and perhaps even

more, than the Constitution requires,” id. at 577 (emphases

added). Thus, under Wolff, reading is a necessary, but not

sufficient, condition for censorship and the chilling of legal

communications. By disregarding the logical relationship

between these concepts, the majority commits the fallacy of

denying the antecedent and arrives at a conclusion that is at

odds with Wolff itself, which recognized that “perusal” of

legal letters is permissible, at least under certain

circumstances.

In the majority’s view, the “reading” of legal letters is

categorically impermissible, Maj. Op. at 5, but the

“inspecting” of legal letters is fair game, id. at 13–14. In fact,

the majority asserts that “nothing prevents the ADC from

2

The Court’s focus on censorship of the mail is quite understandable.

Just two months earlier, the Court had decided Procunier v. Martinez,

which dealt with “testing the constitutionality of prisoner mail censorship

regulations.” 416 U.S. at 407.

NORDSTROM V. RYAN 25

inspecting an inmate’s outgoing mail, in his presence, to

make sure that it does not contain, for example, a map of the

prison yard, the time of guards’ shift changes, escape plans,

or contraband.” Id. If there is no overlap between reading and

inspecting, however, how could a prison guard possibly

inspect a legal letter for escape plans without reading any of

its content? He couldn’t, of course, because “inspecting”

implies some measure of reading in this context. See

Webster’s Third New International Dictionary 1170 (1986)

(defining “inspect” as “to view closely and critically” and to

“examine with care”). Inspecting things, such as meat or tires,

requires a different set of criteria or data points than

inspecting written material. Unless we expect prison officials

to look only for illegal watermarks, unauthorized use of

copyrighted fonts, or poisonous ink, inspecting officials are

going to have to read for comprehension. If they are to be

able to interdict “letters concerning escape[] plans or

containing other information concerning proposed criminal

activity,” including “encoded messages,” we will have to

tolerate some reading of the mails. Martinez, 416 U.S. at 413.

Reading is the process by which one examines and grasps

the meaning of printed characters, words, or sentences. See

id. at 1889 (defining “read” as “to look at or otherwise scan

(as letters or other symbols representing words or sentences)

with mental formulations of the words or sentences

represented”). The verb “to read” has many synonyms,

including “to peruse,” the very action that the Supreme Court

deemed permissible in Wolff. See Wolff, 418 U.S. at 576; see

also Webster’s Third New International Dictionary 1688

(defining “peruse” as “to read through or read over with

some attention and typically for the purpose of discovering or

noting one or more specific points” (emphasis added)). We

cannot draw a constitutional distinction between “reading”

26 NORDSTROM V. RYAN

and “perusing.” Although, in ordinary conversation, we may

indicate our quick review or casual reading of material when

we say we “perused” it, that word more often than not

excuses our lack of attention or interest in the material. Prison

officials looking for escape plans, criminal activity, or coded

messages, cannot be so inattentive.

Obviously, there are levels of reading, and a prison guard

need not parse each word of a legal letter the way he would

dissect his favorite novel or the way we would scrutinize a

dense statute. But nothing in the Supreme Court’s cases or in

our precedent prevents a prison guard from reading a legal

letter to the extent necessary to detect illegal conduct. As the

Supreme Court has recognized, such limited reading—or

inspecting or perusing or whatever else you want to call

it—does not amount to censorship or the chilling of legal

communications. Wolff, 418 U.S. at 576. Drawing

constitutional lines between reading written materials, on the

one hand, and perusing or inspecting them, on the other, is a

fruitless task.

In my view, some reading of legal letters is permissible,

absent censorship and the chilling of legal communications.

See Stanley, 602 F.3d at 770 (“Although [an inmate] has a

First Amendment right to be free from unreasonable mail

censorship, he has no First Amendment right that prevents a

guard from opening his mail in his presence and reading it

with an eye to determining if illegal conduct is afoot.”);

Altizer v. Deeds, 191 F.3d 540, 549 (4th Cir. 1999)

(“[A]lthough an inmate’s First Amendment rights may be

violated when his outgoing mail is censored, his First

Amendment rights are not violated when his outgoing mail is

simply opened and inspected for, among other things,

contraband.” (footnote omitted)). This view is consistent with

NORDSTROM V. RYAN 27

the traditional “hands-off attitude” that federal courts have

adopted toward problems of prison administration, Martinez,

416 U.S. at 404, while simultaneously “tak[ing] cognizance

of the valid constitutional claims of prison inmates,” Turner,

482 U.S. at 84. “[T]he prison employee who opens the letter

will have to glance at the content to verify its bona fides. . . .

The approach sketched in Wolff to lawyer-prisoner mail may

not be ideal, but it is the best that has been suggested, and

that’s good enough.” Guajardo-Palma v. Martinson, 622 F.3d

801, 805 (7th Cir. 2010).

III

In the years following Wolff, the lower courts have

attempted to refine the constitutional analysis of prisoners’

mail rights. The courts have primarily examined three

constitutional rights in cases arising out of the reading of

legal letters: the First Amendment right of speech,3 the Sixth

3

See, e.g., Stanley, 602 F.3d at 770 (“[An inmate] has no First

Amendment right that prevents a guard from opening his mail in his

presence and reading it with an eye to determining if illegal conduct is

afoot.”); Al-Amin v. Smith, 511 F.3d 1317, 1333–34 (11th Cir. 2008)

(holding that a pattern and practice of opening, but not reading, legal mail

outside an inmate’s presence impinges the First Amendment); Jones v.

Brown, 461 F.3d 353, 359 (3d Cir. 2006) (holding that opening, but not

reading, of incoming legal mail outside an inmate’s presence violates the

right of speech); Altizer, 191 F.3d at 549 (“[A]lthough an inmate’s First

Amendment rights may be violated when his outgoing mail is censored,

his First Amendment rights are not violated when his outgoing mail is

simply opened and inspected for, among other things, contraband.”);

Brewer v. Wilkinson, 3 F.3d 816, 825 (5th Cir. 1993) (holding that

opening and inspecting incoming legal mail outside an inmate’s presence

does not violate the First Amendment).

28 NORDSTROM V. RYAN

Amendment right to counsel,4 and the Fourteenth

Amendment right of access to courts.5 Because this appeal

involves a legal letter in a criminal case, I agree with the

majority that it should be analyzed as a right-to-counsel

claim. Maj. Op. at 11. But unlike the majority, I do not

believe that Nordstrom has stated such a claim.

Neither Nordstrom nor the majority can point to any case

in which an appellate court has found a violation of the right

to counsel on analogous facts.6 As a result, first principles

4

See, e.g., Guajardo-Palma, 622 F.3d at 803 (“A practice of prison

officials reading mail between a prisoner and his lawyer in a criminal case

would raise serious issues under the Sixth Amendment.”); Merriweather

v. Zamora, 569 F.3d 307, 317 (6th Cir. 2009) (“[O]pening properly

marked legal mail alone, without doing more, implicates both the First and

Sixth Amendments because of the potential for a chilling effect.” (internal

quotation marks omitted)); Altizer, 191 F.3d at 549 n.14 (“Inspecting an

inmate’s legal mail may implicate the inmate’s Sixth Amendment right to

communicate freely with his attorney in a criminal case.”).

5

See, e.g., Guajardo-Palma, 622 F.3d at 802, 805 (rejecting the right-of-

speech analysis in favor of an access-to-courts analysis and finding no

violation absent prejudice); Al-Amin, 511 F.3d at 1333 (finding no access-

to-courts violation absent actual injury); Brewer, 3 F.3d at 825 (holding

that opening and inspecting incoming legal mail outside an inmate’s

presence does not violate the right of access to courts).

6

The majority asserts that “[o]ther courts have come to similar

conclusions” in their right-to-counsel analyses. Maj. Op. at 12. But the

two cases upon which the majority relies, Lemon v. Dugger, 931 F.2d

1465 (11th Cir. 1991), and Al-Amin v. Smith, reached no such conclusion,

at least not under the Sixth Amendment. In Lemon, the Eleventh Circuit

appears to have recognized that an inmate has a constitutional right not to

have his legal letters read, 931 F.3d at 1468, but the court never relied on

any specific constitutional right, much less the Sixth Amendment right to

counsel. Likewise, in Al-Amin, the prison officials conceded that they

could not read legal letters, and the court “address[ed] only Al Amin’s

NORDSTROM V. RYAN 29

must guide our analysis. In Weatherford v. Bursey, 429 U.S.

545 (1977), a criminal defendant claimed that the use of an

undercover agent violated his right to counsel at trial. The

undercover agent had met with the defendant and his attorney

on two occasions but had not subsequently revealed anything

said or done at the meetings. Id. at 547–48, 555. Rejecting

the criminal defendant’s claim, the Supreme Court held that

“unless [the undercover agent] communicated the substance

of the . . . conversations and thereby created at least a realistic

possibility of injury to [the criminal defendant] or benefit to

the State, there can be no Sixth Amendment violation.” Id. at

558.

We relied on Weatherford in rejecting an inmate’s Sixth

Amendment claim in Williams v. Woodford, 384 F.3d 567

(9th Cir. 2004). There, a habeas petitioner alleged a violation

of his right to counsel based on jailhouse monitoring of his

conversations with visitors and the interception of a document

revealing the appointment of a psychiatrist as a defense

expert. Id. at 584. We held that “[w]hen the government

deliberately interferes with the confidential relationship

between a criminal defendant and defense counsel, that

interference violates the Sixth Amendment right to counsel if

it substantially prejudices the criminal defendant.” Id. at

584–85 (emphasis added). We then proceeded to define

“substantial prejudice” in this context: “Substantial prejudice

results from the introduction of evidence gained through the

interference against the defendant at trial, from the

‘mail opening’ claim.” 511 F.3d at 1323 n.13. The court found that a

pattern and practice of opening, but not reading, legal mail outside an

inmate’s presence impinges First and Fourteenth Amendment rights. Id.

at 1332–35. The court did not mention or rely upon the right to counsel in

its decision.

30 NORDSTROM V. RYAN

prosecution’s use of confidential information pertaining to

defense plans and strategy, and from other actions designed

to give the prosecution an unfair advantage at trial.” Id. at

585. In other words, we held that a criminal defendant must

show actual injury to state a claim based on an alleged

violation of his right to counsel. Cf. Gomez v. Vernon, 255

F.3d 1118 (9th Cir. 2001) (upholding sanctions where prison

employees copied inmate correspondence with their attorneys

and provided it to counsel for the state).

The majority states that “[w]ere Nordstrom challenging

a conviction following an improper intrusion into the

attorney-client relationship, we would examine whether the

violation caused prejudice requiring the reversal of the

conviction.” Maj. Op. at 14. But, the majority continues,

“[t]he harm Nordstrom alleges is not that tainted evidence

was used against him but that his right to privately confer

with counsel has been chilled.” Id. The majority does not tell

us in any concrete terms what type of communication

Nordstrom has kept to himself, though it assures us that such

chilling is “highly likely” and that “[i]t takes no stretch of

imagination” to see how some inmates might be reluctant to

communicate the facts of their crimes or their personal

histories if they knew that a prison official might be privy to

that information as well. Id. at 12.

There are three problems with the majority’s prejudice

analysis. First, the majority disregards the actual allegations

of the first amended complaint. Nordstrom does not allege

that he was reluctant to disclose the details of his life to his

attorney. Nor does he allege that he felt unable to discuss the

crime. Nordstrom alleges that ADC “has forced him to cease

conveying critically sensitive information concerning

necessary aspects of his case for appellate jurisdiction to his

NORDSTROM V. RYAN 31

attorney.” Although these are good, legal words, they do not

provide any indication of the basis for Nordstrom’s claim.

Nordstrom does not specify, for example, the type of

information he was unable to convey—e.g., information

regarding his personal background—or the aspect of his case

to which that information pertained—e.g., sentencing. Of

course, Nordstrom need not detail the content of that

information in his complaint, but he must allege some factual

support to enable the court to evaluate the substantiality of

the prejudice he suffered. It is telling that when Nordstrom

filed his first amended complaint on February 10, 2012, more

than ten months after Officer Hawthorne allegedly read the

letter, Nordstrom still could not articulate any actual injury.

Instead, Nordstrom wrote that he was “incapable of

prophesying . . . the prejudicial effects of [ADC’s] actions . . .

in the adjudication of [his] appeal.” Such vague allegations do

not suffice, especially when the district court permitted

Nordstrom to amend his complaint to cure this very defect.

Second, rather than evaluating the specific effect that the

reading of this letter had on Nordstrom, the majority

hypothesizes about the effect that reading legal letters might

have on inmates in general. For example, the majority tells us

“[i]t is obvious” that a policy of reading legal letters “is

highly likely to inhibit the sort of candid communications that

the right to counsel and the attorney-client privilege are

meant to protect.” Maj. Op. at 12. The need for this type of

speculation is hardly surprising because Nordstrom himself

has not alleged any actual injury. But by engaging in such

probabilistic reasoning, the majority effectively lowers the

standard of prejudice for right-to-counsel claims from

“substantial prejudice” to “imaginable prejudice.” As a result,

the majority’s reasoning is plainly inconsistent with our Sixth

Amendment precedent. See Williams, 384 F.3d at 584–85.

32 NORDSTROM V. RYAN

Third, the majority ignores the fact that Nordstrom alleges

only a one-time incident despite having now been

incarcerated for seventeen years. As the Seventh Circuit has

recognized, the chilling effect of an isolated interference with

legal mail “is likely to be nil.” Guajardo-Palma, 622 F.3d at

805. This is true in part because an inmate generally has

alternate means of communicating with his attorney. For

example, ADC regulations permit inmates to engage in

unmonitored and unrecorded legal phone calls. See

Department Order 902.12. Such alternate means of

communication may be imperfect, but they minimize the risk

that criminal defendants will be unable to transmit necessary

information to their attorneys. And although the reading of a

legal letter on one occasion may bother or offend an inmate,

this is not enough to show a right-to-counsel violation. See

Stanley, 602 F.3d at 770 (“In order to state [a right-to-

counsel] claim there must be something more than an

allegation that a guard ‘read’ [an inmate’s] ‘legal mail’ in his

presence and that he was offended or believed this act to be

a violation of a state prison regulation.”). He must allege

chilling sufficient “to give the prosecution an unfair

advantage at trial.” Williams, 384 F.3d 585. Nordstrom has

failed to do so here.7

7

The majority finds that the general chilling of legal communications,

without more, may constitute substantial prejudice under Williams. Maj.

Op. at 11–15. I am unconvinced. Admittedly, the Supreme Court in Wolff

discussed the potential chilling effect that the reading of legal letters might

have on legal communications. See 418 U.S. at 577. But Wolff’s

discussion of constitutional principles was completely undifferentiated. Id.

at 574–77. The Court simply “assum[ed] some constitutional right [was]

implicated,” id. at 576 (emphasis added), including, perhaps, a right under

the First Amendment, where chilling has long been a concern. The

concept of chilling seems ill-suited to the Sixth Amendment context,

where the inmate must show substantial prejudice resulting from

NORDSTROM V. RYAN 33

Proof of an official policy of reading an inmate’s legal

letters beyond the extent necessary to detect illegal conduct

might be sufficient to show substantial prejudice. See

Guajardo-Palma, 622 F.3d at 805. But that is not what

Nordstrom alleges in his amended complaint. Nordstrom

alleges that ADC arbitrarily violated its own written policy.

Thus, Nordstrom’s claim is based on a pattern and practice of

violating his right to counsel, a pattern and practice that

consists entirely of Officer Hawthorne’s conduct on the night

of May 2, 2011.8 This isolated event cannot serve as the

factual basis for a pattern or practice claim. See id. at 805

(finding no prejudice where a prison official opened nine

legal letters outside the inmate’s presence). It’s not a pattern

or practice at all. As a result, Nordstrom has failed to state a

right-to-counsel claim, and the district court did not abuse its

discretion by dismissing the first amended complaint with

prejudice. See Okwu v. McKim, 682 F.3d 841, 844 (9th Cir.

2012); United States ex rel. Cafasso v. Gen. Dynamics C4

Sys., Inc., 637 F.3d 1047, 1058 (9th Cir. 2011) (“The district

court’s discretion to deny leave to amend is particularly broad

where plaintiff has previously amended the complaint.”

(internal quotation marks, citations, and alteration omitted)).

deliberate governmental interference with the confidential relationship

between the inmate and his attorney. Even assuming that chilling of legal

communications is an appropriate measure of substantial prejudice in the

Sixth Amendment context, the inmate would need to show chilling of a

particular kind, i.e., chilling that “give[s] the prosecution an unfair

advantage at trial.” Williams, 384 F.3d at 585.

8

Although we have an obligation to liberally construe pro se complaints,

Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012), we cannot

contradict the clear, repeated allegations of the complaint.

34 NORDSTROM V. RYAN

IV

The majority is correct that prisons are a tough place.

Maj. Op. at 4. And because of the majority’s decision today,

they are about to get a little tougher. Prison officials are

“responsible for maintaining internal order and discipline,” as

well as “securing their institutions against unauthorized

access or escape.” Martinez, 416 U.S. at 404. To protect

individuals in and outside the prison, prison officials must be

allowed to read legal letters to the extent necessary to detect

illegal conduct. By preventing reading in this limited sense,

the majority has hamstrung prison officials’ ability to do their

job.

Moreover, when a prison official crosses the line, the

inmate must show that he—and not some hypothetical

inmate—has suffered substantial prejudice in order to state a

claim under the Sixth Amendment. Nordstrom has not shown

that the reading of this one letter had any impact on his

criminal appeal. I would affirm the judgment of the district

court.

I respectfully dissent.