Scott Nordstrom v. Charles Ryan
856 F.3d 1265
9th Cir.2017Background
- Nordstrom, an Arizona death-row inmate, alleged ADC officers read his outgoing legal mail to an attorney rather than performing only a limited inspection; an officer admitted scanning/reading pages until Nordstrom objected.
- ADC’s written policy permits staff to inspect outgoing legal mail in the inmate’s presence to detect contraband and to “verify” that contents qualify as legal mail; it defines contraband broadly to include non-legal written communications discovered by scanning.
- Nordstrom sued under 42 U.S.C. § 1983 alleging violations of the Sixth Amendment (right to counsel/confidential attorney-client communications) and the First Amendment (right to send/receive mail). The district court dismissed; this appeal follows.
- In a prior opinion (Nordstrom I), the Ninth Circuit held officials may inspect but not read outgoing attorney-client mail; the case was remanded to determine whether ADC’s policy/practice amounted to reading.
- On remand the district court again upheld ADC’s policy; the Ninth Circuit now reviews that determination and reverses, finding the policy permits page-by-page content review and fails Turner scrutiny.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ADC’s inspection policy violates the Sixth Amendment right to confidential communications with counsel | ADC’s policy/practice amounts to reading outgoing attorney-client mail, chilling and interfering with counsel communications | ADC may inspect outgoing legal mail in the inmate’s presence for contraband and to verify legal subject matter | Policy violates the Sixth Amendment because it permits page-by-page content review; officials may inspect but not read outgoing legal mail |
| Whether ADC’s outgoing-mail policy violates the First Amendment under Turner | The policy is not reasonably related to penological interests, lacks evidence of actual risks, and less intrusive alternatives exist | Policy serves legitimate security interests (preventing contraband and criminal activity) and is justified | Policy violates the First Amendment; ADC offered no evidence that attorney-addressed outgoing mail posed security risks and Turner factors favor Nordstrom |
| Standing to assert Sixth Amendment claim | Nordstrom had and continues to have standing to seek injunctive relief against chilling of counsel communications | ADC argued Nordstrom lacked standing because his current post-conviction proceedings do not carry a right to counsel | Ninth Circuit applies law-of-the-case and circuit precedent: Nordstrom has standing to raise his Sixth Amendment claim |
| Remedy—entitlement to injunctive relief | Injunctive relief is appropriate because Nordstrom faces realistic threat of repetition while incarcerated | ADC did not present evidence undermining the risk argument | Court reverses dismissal and remands for entry of an appropriate injunction/decree based on evidence of actual risks in Arizona prisons |
Key Cases Cited
- Nordstrom v. Ryan, 762 F.3d 903 (9th Cir. 2014) (prior panel: officials may inspect but not read outgoing attorney-client mail)
- Turner v. Safley, 482 U.S. 78 (1987) (four-factor test for prison regulation and constitutional rights)
- Witherow v. Paff, 52 F.3d 264 (9th Cir. 1995) (cursory visual inspection of outgoing mail permissible; closer fit required for outgoing mail)
- Wolff v. McDonnell, 418 U.S. 539 (1974) (prison officials may open but not read incoming legal mail in inmate’s presence)
- Thornburgh v. Abbott, 490 U.S. 401 (1989) (outgoing personal correspondence poses less threat to prison security)