Clyde Stevenson v. Sue Koskey

*1442 REINHARDT, Circuit Judge,

dissenting:

The majority reaches a simple conclusion. It holds — amidst considerable dictum — that under the facts of this case, appellee (Stevenson) has been unable to prove more than simple negligence on the part of appellant (Koskey). While I do not quarrel with the legal conclusion that negligence does not rise to the level of a constitutional violation, I strongly disagree with the majority’s characterization of events and its willingness to overturn the factual conclusions of the district court which the parties themselves accept as correct.

Stevenson was a prisoner in the Washington County Jail. Koskey was his assigned probation and parole officer. For reasons not entirely clear from the record, legal mail addressed to Stevenson fell into the hands of Koskey. Rather than sending the legal correspondence through normal channels, Koskey voluntarily assumed responsibility for hand-delivering the letter directly to Stevenson. When she arrived at the jail, a prison guard, whose identity remains unknown, requested that she surrender the letter for inspection. She handed the letter to the guard and waited while he opened and leafed through the contents. Stevenson was not present during the inspection. As the district court found, and as Koskey’s counsel conceded at oral argument, Koskey “intentionally gave legal mail to a correction’s officer for inspection outside of the inmate’s presence.” Her actions constituted constitutional error.

The case was tried on stipulated facts. Admittedly, the stipulated facts are subject to conflicting interpretations. The facts simply say that appellant “was asked by a Washington County corrections officer to first surrender those items for a contraband inspection. Defendant complied with that request and the corrections officer leafed through the documents in the envelope.” The stipulated facts do not clearly say whether Koskey handed over the letter and then was surprised by the guard’s unconstitutional search or whether she handed the letter over for the understood purpose of permitting its search outside the presence of the prisoner. Both constructions are consistent with the parties’ stipulations.

I see two compelling reasons why we are required to adopt the second version of events. First, Judge Panner, the finder of fact, found that Koskey intentionally turned over the letter to the prison guard for the purpose of an immediate search. It is absolutely clear in this circuit that this finding is reversible only if it is clearly erroneous. See, e.g., EEOC v. Maricopa County Community College District, 736 F.2d 510, 513 (9th Cir.1984); Nicholson v. Board of Education, 682 F.2d 858 , 864 n. 6 (9th Cir.1982); United States v. Chesher, 678 F.2d 1353 , 1358 n. 3 (9th Cir.1982); Collins v. Thompson, 679 F.2d 168, 170 (9th Cir.1982); United States v. Mountain States Construction Co., 588 F.2d 259 , 264 n. 5 (9th Cir.1878); Starsky v. Williams, 512 F.2d 109, 111 (9th Cir.1975); Lundgren v. Freeman, 307 F.2d 104, 115 (9th Cir.1962). Our review of the trial court’s factual determinations is thus highly deferential, and any situation that may give rise to two plausible interpretations must be resolved in a manner consistent with the district court’s findings. In this case, Judge Panner concluded from the stipulated record that Koskey intended that the guard open the letter. His findings are consistent with the stipulated facts and well supported in the underlying trial documentation. 1 There is no basis, whatsoever, in fact or in law, for the majority’s peremptory conclusion that the district court’s findings are clearly erroneous.

Second, appellant never, not in her trial memorandum or in her appellate brief, contests the factual finding of the district court. Nowhere does she suggest that she was surprised or taken aback by the guard’s actions. I find it remarkable that the majority has based its entire argument on a perceived need to overturn, as clearly erroneous, a factual finding that the parties do not even dispute. In effect, the *1443 majority has broken two basic laws of appellate review: deference to factual findings of the district court and review limited to the issues raised by the parties.

The majority’s version of events gives the entire opinion a mechanical and ineluctable feel, one unrelated to the realities of the dispute. Undér Judge Price’s factual theory of the case, Koskey had no choice but to hand over the legal letter to the prison guard. 2 She — -like more famous government officials — was merely following orders. “In order to accomplish her purpose, defendant had no choice but to accede to the ‘orders,’ if you will, of the corrections officer in order to realize her purposes.” Maj. op. at 1438. Whatever may be the merits of the Nuremburg-style defense Judge Price has so imaginatively dreamed up for Koskey, a fundamental difficulty with it is that in this case the facts to support such a defense are simply not present. Koskey clearly had options. She was unquestionably in a position to do something about the violation of Stevenson’s constitutional rights. All she had to do, for example, was request the guard to obey the law. At the very least, she could have turned around, walked out the door, and stuck the letter in the nearest mailbox. The letter would have gone through normal prison channels and, one is entitled to presume, eventually been opened in the prisoner’s presence. 3 I think this relatively slight inconvenience would have been a small price to pay for the protection of Stevenson’s constitutional rights.

The interpretation of the facts accepted by the parties to this case and by the district court should fairly lay to rest the central arguments of the majority. On appeal, appellant has never questioned Judge Panner’s finding that she handed over the confidential letter for the purpose of permitting the guard to make a search outside the presence of the intended recipient. Bather, she has relied on three legal theories that she contends preclude a finding of liability notwithstanding the intentional nature of her conduct. Because the majority reaches a conclusion based solely upon the erroneous factual findings it renders sua sponte, I see no reason to address any of appellant’s legal arguments, all of which I believe to be without merit. I dissent.

. The record before the district court also included affidavits and memoranda which support Judge Panner’s interpretation of the evidence.

. Judge Price goes so far as to suggest that legal mail may properly be read by the prison guard. Maj. op. at 1438. The prison rules clearly allow only for a contraband inspection, a search that does not permit the reading of legal mail. The rules explicitly bar reading such mail. "At no time shall a staff member read any confidential communication.” Even if the prison rules did permit Judge Price’s interpretation, it should be clear that reading legal mail is a violation of the prisoner’s privacy rights and the attorney-client privilege. See, e.g., Taylor v. Sterrett, 532 F.2d 462, 475 (5th Cir.1976).

. The WCCC has now belatedly adopted this practice for delivering mail to inmates.