Scott Nordstrom v. Charles Ryan

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SCOTT D. NORDSTROM, No. 16-15277

Plaintiff-Appellant,

D.C. No.

v. 2:11-cv-02344-

DGC

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 January 11, 2017

San Francisco, California

Filed May 18, 2017

Before: RICHARD R. CLIFTON and MILAN D. SMITH,

JR., Circuit Judges, and RALPH R. ERICKSON, * District

Judge.

Opinion by Judge Milan D. Smith, Jr.

*

The Honorable Ralph R. Erickson, United States District Judge for

the District of North Dakota, sitting by designation.

2 NORDSTROM V. RYAN

SUMMARY **

Prisoner Civil Rights

The panel reversed the district court’s dismissal of an

action brought pursuant to 42 U.S.C. § 1983 by an Arizona

state prisoner alleging that the Arizona Department of

Correction’s policy and practice of inspecting inmates’

outgoing legal mail violated the Sixth and First Amendment,

and remanded.

The panel held that Arizona’s current “inspection”

policy did not satisfy the standard articulated in Nordstrom

v. Ryan, 762 F.3d 903, 906 (9th Cir. 2014) because the policy

called for page-by-page content review of inmates’

confidential outgoing legal mail. Further, the policy did not

satisfy the four-part test identified in Turner v. Safley, 482

U.S. 78, 89–91 (1987), because Arizona did not produce

evidence of a threat to prison security sufficient to justify its

policy, and because feasible, readily available alternatives

were apparent.

COUNSEL

Gregory C. Sisk (argued), Attorney; Bridget A. Duffus and

Katherine J. Koehler, Certified Law Student

Representatives; Appellate Clinic, University of St. Thomas

School of Law, Minneapolis, Minnesota; for Plaintiff-

Appellant.

**

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

Neil Singh (argued), Assistant Attorney General; Mark

Brnovich, Arizona Attorney General; Office of the Attorney

General, Phoenix, Arizona; for Defendants-Appellees.

Robin E. Wechkin, Vice Chair, 9th Circuit Amicus

Committee, National Association of Criminal Defense

Lawyers, Sidley Austin LLP, Seattle, Washington; Elliot

Dolby Shields, Chair, Civil Rights & Liberties Committee,

New York County Lawyers Association, New York, New

York; for Amici Curiae New York County Lawyers

Association and National Association of Criminal Defense

Lawyers.

Bryan A. Stevenson and Benjamin H. Schaefer,

Montgomery, Alabama, as and for Amicus Curiae Equal

Justice Initiative.

Kelly A. Kszywienski, Snell & Wilmer LLP, Phoenix,

Arizona; Lawrence Fox, Yale Law School, New Haven,

Connecticut; for Amicus Curiae Ethics Bureau at Yale.

OPINION

M. SMITH, Circuit Judge:

Scott Nordstrom, a death row inmate in Arizona state

prison, appeals the district court’s dismissal of his claims

that the Arizona Department of Corrections (ADC) policy

and practice for inspecting inmates’ outgoing legal mail

violates his Sixth and First Amendment rights. We hold that

ADC’s current “inspection” policy does not satisfy the

standard articulated in Nordstrom v. Ryan, 762 F.3d 903, 906

(9th Cir. 2014) (Nordstrom I), because the policy calls for

page-by-page content review of inmates’ confidential

4 NORDSTROM V. RYAN

outgoing legal mail. Further, the policy does not satisfy the

four-part test identified in Turner v. Safley, 482 U.S. 78, 89–

91 (1987), because ADC did not produce evidence of a threat

to prison security sufficient to justify its policy, and because

feasible, readily available alternatives are apparent.

Accordingly, we REVERSE the district court’s dismissal of

Nordstrom’s Sixth and First Amendment claims, and

remand to the district court for further proceedings.

FACTS AND PRIOR PROCEEDINGS

Nordstrom alleges that when he sought to mail a

confidential letter addressed to his attorney the officer on

duty actually read his letter, rather than merely scanned or

inspected it. After about 15 seconds, Nordstrom requested

that the officer stop, and the officer responded “don’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 persisted,

and the officer ceased reading (or scanning) the letter.

Nordstrom filed formal grievances, which were denied

on the ground that ADC “is authorized to scan and is not

prohibited from reading [legal] mail to establish the absence

of contraband and ensure the content of the mail is of legal

subject matter.” This stated ground for denial conforms to

ADC’s legal mail policy, which provides that ADC staff

must, in the presence of the inmate, inspect, but not read,

outgoing legal mail for the presence of contraband. The

inspection must be “only to the extent necessary to

determine if the mail contains contraband, or to verify that

its contents qualify as legal mail and do not contain

communications about illegal activities.” Contraband is

defined broadly to include “[a]ny non-legal written

correspondence or communication discovered as a result of

scanning incoming or outgoing legal mail.”

NORDSTROM V. RYAN 5

Nordstrom filed this 42 U.S.C. § 1983 suit against ADC,

seeking a declaratory judgment and injunction against its

legal mail policy and practice, alleging violations of his

Sixth and First Amendment rights. Nordstrom I, 762 F.3d at

906. The district court dismissed the complaint for failure to

state a claim. Id. On appeal, we held that Nordstrom stated

a claim for violation of his Sixth Amendment rights, and that

prison officials may inspect outgoing legal mail in an

inmate’s presence for contraband, among other things, but

that prison officials may not read such mail. Id. at 906, 910–

11. We remanded for consideration of Nordstrom’s

allegation that ADC has had a policy and practice of reading

legal mail. Id. at 911–12.

On remand, the district court denied Nordstrom’s request

for a declaratory judgment and permanent injunction,

holding that ADC’s policies and practices did not violate the

Sixth or First Amendments. Nordstrom v. Ryan, 128 F.

Supp. 3d 1201, 1219 (D. Ariz. 2016) (Nordstrom II).

Nordstrom appealed.

STANDARDS OF REVIEW

We review the district court’s Article III standing

decision de novo. Braunstein v. Arizona Dep’t of Transp.,

683 F.3d 1177, 1184 (9th Cir. 2012).

Regarding Nordstrom’s Sixth Amendment claim, we

review questions of law and “mixed questions of law and

fact implicating constitutional rights” de novo. Am.-Arab

Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1066

(9th Cir. 1995). We review factual findings for clear error.

Crittenden v. Chappell, 804 F.3d 998, 1006 (9th Cir. 2015).

We review the district court’s holding that ADC’s policy

does not violate the First Amendment de novo, including any

6 NORDSTROM V. RYAN

underlying factual findings. Tucker v. State of Cal. Dep’t of

Educ., 97 F.3d 1204, 1209 n.2 (9th Cir. 1996).

ANALYSIS

I. Nordstrom Has Standing to Bring His

Constitutional Claims

In Nordstrom I, we evaluated Nordstrom’s Sixth

Amendment claim and concluded that the allegation that

ADC “interfered with attorney-client communications

related to the appeal of [Nordstrom’s] murder conviction and

death sentence . . . [fell] squarely within the scope of the

Sixth Amendment right to counsel.” 762 F.3d at 909. His

standing did not arise from alleged prejudice that he suffered

related to his conviction; rather it was an interest in enjoining

a practice that chilled his Sixth Amendment rights. Id. at

911.

On remand, ADC argued that Nordstrom lacked standing

because his requested injunction would not affect his Sixth

Amendment rights because he was in post-conviction

proceedings under Arizona Rule of Criminal Procedure 32,

and “[t]here is no constitutional right to an attorney in state

post-conviction proceedings.” Coleman v. Thompson,

501 U.S. 722, 752 (1991). 1 The district court held that

1

This broad statement is not necessarily accurate for all state post-

conviction proceedings. Nordstrom argues that Sixth Amendment rights

attach in his current state proceeding because he is raising an issue of

prosecutorial misconduct that he was not allowed to raise until his post-

conviction petition, making it an “initial-review collateral proceeding.”

See Martinez v. Ryan, 566 U.S. 1, 8–9 (2012); State v. Nordstrom,

280 P.3d 1244, 1250 (Ariz. 2012). In Martinez, the Court left open the

question of whether a prisoner has Sixth Amendment rights “in collateral

proceedings which provide the first occasion to raise a claim of

NORDSTROM V. RYAN 7

Nordstrom had standing because “for standing analysis, the

key point in time is the filing of the complaint,” and

“Nordstrom was still involved in criminal proceedings—

implicating the Sixth Amendment—when he filed his

original complaint.” Nordstrom II, 128 F. Supp. 3d at 1213

n.6 (citing Cornett v. Donovan, 51 F.3d 894, 897 (9th Cir.

1995)). The district court erred by failing to consider

whether Nordstrom has standing now, and not merely at the

time of the complaint, because “a live controversy must exist

at all stages of the litigation, not simply at the time plaintiff

filed the complaint.” Vasquez v. Los Angeles Cty., 487 F.3d

1246, 1253 (9th Cir. 2007). 2

ineffective assistance at trial,” proceedings the Court termed “initial-

review collateral proceedings.” 566 U.S. at 8–9. As discussed in this

section, the law-of-the-case and law-of-the-circuit rules compel that we

find that Nordstrom has standing to raise his Sixth Amendment claim.

Thus, we decline to address the question of whether Sixth Amendment

rights attach in Nordstrom’s current proceedings under Arizona Rule of

Criminal Procedure 32.

2

Cornett (the case the district court cited) does not alter this basic

rule. In Cornett, four plaintiffs brought a declaratory judgment action,

alleging that their constitutional rights were denied while they were

institutionalized. 51 F.3d at 896. The panel held that a plaintiff who was

no longer institutionalized at the time of the complaint did not have

standing because his injury would not be redressed by the declaratory

judgment; however, the remaining three plaintiffs had standing because

they were institutionalized at the time of the complaint. Id. at 897.

Although the panel focused on plaintiffs’ status at the time of the

complaint, it noted that two of the three plaintiffs were no longer

institutionalized by the time of the appeal, but expressly declined to

decide whether their release during appeal affected standing, because at

least one of the plaintiffs remained institutionalized and the case could

proceed with that plaintiff. Id. at 897 n.2 Cornett thus makes clear that

a plaintiff must have standing at the time the complaint is filed, but does

not stand for the principle that standing at the time of appeal is irrelevant.

8 NORDSTROM V. RYAN

In Nordstrom I, we necessarily decided that Nordstrom

had standing to bring his Sixth Amendment claim. 762 F.3d

at 909, 911. At that time, Nordstrom’s criminal appeals had

concluded, and he was preparing his petition for post-

conviction relief. See State v. Nordstrom, 280 P.3d 1244

(Ariz. 2012), cert. denied, 133 S. Ct. 985 (2013) (affirming

Nordstrom’s sentence). Because this case returns to our

court in virtually the same procedural posture as Nordstrom

I, the prior determination that Nordstrom had standing is

both the law of the case and binding precedent that we must

follow. See Hilao v. Estate of Marcos, 103 F.3d 767, 772

(9th Cir. 1996); see also Milgard Tempering, Inc. v. Selas

Corp. of Am., 902 F.2d 703, 715 (9th Cir. 1990) (noting that

the law of the case doctrine applies to issues “decided

explicitly or by necessary implication in [the] previous

disposition”) (emphasis added).

Although we have recognized exceptions to the law of

the case doctrine, see Gonzalez v. Arizona, 677 F.3d 383,

389 n.4 (9th Cir. 2012) (en banc), aff’d sub nom. Arizona v.

Inter Tribal Council of Ariz., Inc., 133 S. Ct. 2247 (2013),

such exceptions “are not exceptions to the rule that, as a

three-judge panel, we are bound by the law of the circuit in

the absence of a recognized exception to that rule.” Barnes-

Wallace v. City of San Diego, 704 F.3d 1067, 1076–77 (9th

Cir. 2012). No “recognized exception” to the law-of-the-

circuit rule applies here. See Miller v. Gammie, 335 F.3d

889, 900 (9th Cir. 2003) (holding that a panel may depart

from the law of the circuit when “the relevant court of last

resort . . . undercut the theory or reasoning underlying the

prior circuit precedent in such a way that the cases are clearly

irreconcilable”). Thus, pursuant to both the law-of-the-case

doctrine and our law-of-the-circuit rules, Nordstrom has

standing to assert his Sixth Amendment claim.

NORDSTROM V. RYAN 9

Nordstrom also has standing to assert his First

Amendment claim, which was not addressed in Nordstrom

I. To establish constitutional standing Nordstrom “must

allege (1) a distinct and palpable injury-in-fact that is

(2) fairly traceable to the challenged provision or

interpretation and (3) would likely be redressed by a

favorable decision.” Santa Monica Food Not Bombs v. City

of Santa Monica, 450 F.3d 1022, 1033 (9th Cir. 2006)

(internal quotation marks and ellipsis omitted). Nordstrom

has alleged that his First Amendment free speech rights were

violated by ADC’s legal mail policy and practices.

Nordstrom has “a First Amendment right to send and receive

mail” while incarcerated, Witherow v. Paff, 52 F.3d 264, 265

(9th Cir. 1995) (per curiam), and a decision invalidating

ADC’s legal mail policy would likely redress Nordstrom’s

alleged injury. Thus, Nordstrom has Article III standing to

bring his constitutional claims.

II. ADC’s Outgoing Legal Mail Policy Violates the

Sixth Amendment

Criminal defendants have a Sixth Amendment right to

assistance of counsel, and the right applies in state court

proceedings. Gideon v. Wainwright, 372 U.S. 335, 339–41

(1963). The right to counsel is violated when (1) “the

government deliberately interferes with the confidential

relationship between a criminal defendant and defense

counsel,” and (2) the interference “substantially prejudices

the criminal defendant.” Nordstrom I, 762 F.3d at 910. We

have recognized a defendant’s “ability to communicate

candidly and confidentially” with defense counsel as

“essential to his defense” and “nearly sacrosanct.” Id. Thus,

prison officials may not read an inmate’s “outgoing

attorney-client correspondence.” Id. at 910–11. However,

prison officials may “inspect[] an inmate’s outgoing mail, in

10 NORDSTROM V. RYAN

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. at 910.

ADC’s policy requires that outgoing legal mail “be

inspected for contraband, . . . and scanned to ensure that it is

in fact legal mail,” in the inmate’s presence. However, the

mail “shall not be read by staff” and must be sealed in the

inmate’s presence following inspection. The inspection

must be “only to the extent necessary to determine if the mail

contains contraband, or to verify that its contents qualify as

legal mail and do not contain communications about illegal

activities.” ADC broadly defines contraband to include

“[a]ny non-legal written correspondence or communication

discovered as a result of scanning incoming or outgoing

legal mail.” Based on the testimony of a prison mail

supervisor, it appears that ADC’s practice of “scanning”

involves reading some words in a letter and looking at each

page, but not reading the text line-by-line.

ADC’s policy goes beyond the inspection approved of in

Nordstrom I. We explained that inspection of outgoing mail

should be for “suspicious features” that can readily be

identified without reading the words on a page; i.e., “maps

of the prison yard, the times of guards’ shift changes, and the

like.” Nordstrom I, 762 F.3d at 906. This level of inspection

is akin to the “cursory visual inspection” that we approved

of for outgoing mail sent to public officials in Witherow.

52 F.3d at 265–66.

We included “contraband” as a subject for inspection,

Nordstrom I, 762 F.3d at 910, but ADC’s broad definition of

contraband transforms permissible inspection into page-by-

page content review. Contraband is commonly understood

to refer to smuggled or otherwise illegal goods. See

Contraband, Black’s Law Dictionary (10th ed. 2014). In her

NORDSTROM V. RYAN 11

testimony, ADC’s Associate Deputy Warden defined

contraband as “anything deemed [] to be a security threat or

safety threat to [] staff or [] inmates.” By invoking

contraband in Nordstrom I, we intended to reference

dangerous or illegal items hidden in legal mail that are not

mail. ADC’s inclusion of “[a]ny non-legal written

correspondence or communication” in its definition of

contraband extends Nordstrom I beyond its intended limits

by requiring that staff inspect mail page-by-page to ensure

that a letter concerns only legal subjects. This is plainly not

the type of inspection envisioned in Nordstrom I.

We reiterate our holding that prison officials may

inspect, but may not read, an inmate’s outgoing legal mail

in his presence. At most, a proper inspection entails looking

at a letter to confirm that it does not include suspicious

features such as maps, and making sure that illegal goods or

items that pose a security threat are not hidden in the

envelope. ADC’s legal mail policy does not meet this

standard because it requires that prison officials “verify that

[the letter’s] contents qualify as legal mail.”

III. ADC’s Outgoing Legal Mail Policy Violates the

First Amendment

Nordstrom has “a First Amendment right to send and

receive mail,” but prison regulations may curtail that right if

the “regulations are reasonably related to legitimate

penological interests.” Witherow, 52 F.3d at 265 (internal

quotation marks omitted); see, e.g., Wolff v. McDonnell,

418 U.S. 539, 577 (1974) (holding that prison officials may

open, but not read, incoming legal mail in the presence of the

inmate). Legitimate penological interests that justify

regulation of outgoing legal mail include “the prevention of

criminal activity and the maintenance of prison security.”

O’Keefe v. Van Boening, 82 F.3d 322, 326 (9th Cir. 1996).

12 NORDSTROM V. RYAN

When assessing the constitutionality of prison

regulations that affect inmates’ constitutional rights, we

apply the four-factor test articulated in Turner, 482 U.S. at

89–91. We ask (1) whether there is “a valid, rational

connection between the prison regulation and the legitimate

governmental interest put forward to justify it”; (2) “whether

there are alternative means of exercising the right that

remain open to prison inmates”; (3) what “impact

accommodation of the asserted constitutional right will have

on guards and other inmates, and on the allocation of prison

resources generally”; and (4) whether there is an “absence of

ready alternatives.” Id. (internal quotation marks omitted).

Additionally, “[w]hen a prison regulation affects outgoing

mail as opposed to incoming mail, there must be a closer fit

between the regulation and the purpose it serves.”

Witherow, 52 F.3d at 265 (internal quotation marks omitted).

The district court dismissed Nordstrom’s First

Amendment claim. Nordstrom II, 128 F. Supp. 3d at 1219.

In doing so, the court only considered the first Turner factor,

and concluded that ADC’s legitimate penological interest in

institutional security justified its policy and practices. Id.

The court reasoned that legal mail “can be used to introduce

contraband into ADC’s facilities, to facilitate criminal

activity within the prison’s walls, and to facilitate criminal

activity on the outside.” Id.

The district court is correct that outgoing legal mail

could be used to facilitate criminal activity, but ADC did not

present any evidence that this has ever happened, or that it is

likely to happen. ADC did not produce any evidence that an

Arizona inmate has ever abused the system when sending

legal mail to an actual attorney. Evidence presented showed

that inmates have attempted to abuse the legal mail system

by sending mail disguised as legal mail to non-lawyers, and

NORDSTROM V. RYAN 13

that non-lawyer gang members have attempted to send mail

disguised as legal mail to incarcerated gang members.

Additionally, ADC provided evidence that three attorneys in

Arizona have criminally assisted inmates by smuggling

contraband into a prison and by facilitating communication

among gang members. None of these instances involving

actual attorneys involved abuse of outgoing legal mail.

Thus, ADC presented no evidence that outgoing legal mail

addressed to a licensed attorney has ever posed the security

threats identified by the district court.

The district court erred by not distinguishing between the

risks of incoming and outgoing mail in its analysis.

Although ADC need not “satisfy a least restrictive means

test,” its restrictions on outgoing mail must have “a closer fit

between the regulation and the purpose it serves” than

incoming mail restrictions. Witherow, 52 F.3d at 265

(internal quotation marks omitted). This is because

“outgoing personal correspondence from prisoners [does]

not, by its very nature, pose a serious threat to prison order

and security.” Thornburgh v. Abbott, 490 U.S. 401, 411

(1989).

Although prison security is undoubtedly a legitimate

government interest, ADC has not met its burden to justify

its intrusion into outgoing legal mail. With no evidence that

such mail has ever posed a threat, a policy requiring a page-

by-page inspection to determine if the contents actually

concern legal matters is unduly intrusive.

The district court failed to consider the remaining Turner

factors, which largely support Nordstrom’s claim. There is

“an obvious, easy alternative[]” to ADC’s policy. See

Turner, 482 U.S. at 90. ADC could use procedures to ensure

that outgoing legal mail is sent to a licensed attorney, rather

than inspecting the contents to make sure that the letter

14 NORDSTROM V. RYAN

concerns legal subject matter. Because there is no evidence

that legitimate outgoing legal mail has posed a security

threat, readily available alternative means suggest that

ADC’s policy “is an ‘exaggerated response’ to prison

concerns.” See id.

Because there is no evidence of abuse of the legal mail

system when outgoing mail is addressed to an attorney, there

is no reason to conclude that a more limited inspection of

outgoing legal mail would have an adverse effect on prison

staff, other inmates, or allocation of resources within

prisons. See id. Checking a state bar’s list of licensed

attorneys is no more onerous than page-by-page inspection

to confirm legal content. Indeed, an ADC prison mail

supervisor testified that he uses the Arizona Bar

Association’s website “every single day,” and that finding

out whether a given individual is an attorney can be done

“very easily.”

We also consider “whether there are alternative means of

exercising the right that remain open to prison inmates.” Id.

Under this factor “‘the right’ in question must be viewed

sensibly and expansively.” Thornburgh, 490 U.S. at 417.

That is, we consider whether inmates have sufficient forms

of free expression, not whether the exact expression at issue

is available through alternative means. Id. at 417–18. This

factor does not weigh heavily for or against ADC’s policy.

Inmates are able to communicate with attorneys through

phone calls and in-person meetings, giving them an outlet

for expression. However, confidential legal correspondence,

free from unreasonable censorship and the chilling effect of

excessive monitoring, remains an important avenue of

communication for inmates, and alternative means do not

entirely make up for infringement on this right.

NORDSTROM V. RYAN 15

On balance, the Turner factors point to the conclusion

that ADC’s outgoing legal mail policy unreasonably intrudes

on Nordstrom’s First Amendment rights. Due to the more

limited threat that outgoing mail poses to prison security, and

ADC’s inability to proffer evidence to show that such mail

poses a threat, the ends do not justify the means. Moreover,

there are readily available, less restrictive alternatives that

are unlikely to have an adverse effect on prisons.

IV. Nordstrom Is Entitled to Injunctive Relief

As we determined in Nordstrom I, Nordstrom’s

allegations support a claim for injunctive relief. 762 F.3d at

911–12. Nordstrom has demonstrated that he is realistically

threatened by repetition of ADC’s violation, because his

injury stems from ADC’s policy, and he remains

incarcerated in Arizona state prison. See id.

CONCLUSION

We REVERSE the district court’s dismissal of

Nordstrom’s Sixth and First Amendment claims. We hold

that ADC’s outgoing legal mail policy does not satisfy the

Nordstrom I standard for an outgoing legal mail inspection

policy, or the Turner factors. We REMAND for the district

court to craft a decree based on the evidence of actual risks

in Arizona state prisons.