Scott Nordstrom v. Charles Ryan , 856 F.3d 1265 ( 2017 )

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. at89–91. 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.