*2 Before REINHARDT, WALLACE and Judges, PRICE, Circuit District Judge.* PRICE, Judge: District The relevant facts are as follows: Defendant worked as an probation adult parole Washington officer for County De- partment Community (“De- Corrections partment”) and had employed been in that capacity years. for six Defendant was as- signed supervise plaintiff, who had been paroled Oregon from the State Prison but who was in Washington incarcerated awaiting Jail trial on charges. new plaintiff While Washington was in the County Jail, defendant went there to deliv- envelope er an plaintiff containing a divorce decree and a letter that had been plaintiff’s directed to defendant on behalf. Defendant envelope knew that ad- plaintiff dressed to was from “Inmate Le- gal Service, Inc.” but was unaware wheth- Services, er Legal “Inmate Inc.” was an attorney-operated inmate-operated or- ganization. sought permission
Defendant to deliver envelope, divorce decree and a letter to by Washington but was asked Price, nia, sitting by designation. *Honorable Edward Dean United States District for the Eastern District of Califor- on-the-job training, through to first surren- defendant’s County corrections officer inspec- Furthermore, for a contraband those items der other source. re- complied with that
tion. Defendant any legal or was unaware of internal ad- officer leafed and the corrections quest ministrative rule that the exami- restricted envelope. documents prisoner’s of a nation official outside inspec- present was not when Plaintiff prisoner’s presence. physical *3 place. tion took over-gener- perhaps Defendant’s counsel occurred, inspection the time the At the ously stipulated that em- defendant was Washington of the Coun- “Inmate Manual” Washington County ployed by Depart- the Department’s policy set forth the ty Jail Community as an adult ment of Corrections inspection and regarding the examination parole probation and officer.1 Suffice it to Man- mail for contraband. The prisoner acting say, defendant was under part: provided pertinent in ual hence, and, subject state law would be to opened correspondence shall be Official imposed employees such the liabilities pres- inspection in the inmate’s for by section 1983. inspected only for and mail shall be ence insuring purpose of that contraband the the Defendant interacted at present. At shall a staff is not no time courthouse an individual identified with any confidential communi- member read only as a officer”. The Ore- "corrections cation. gon person such as offi- statue defines “an decree and letter envelope, divorce cer or member of a law enforcement unit correspondence” within the “official were charged full employed time and who Also, the meaning provision. when of that primarily performs duty the and with occurred, Department’s man- inspection the custody, supervision of control or individu- provided, “Be procedures on clerical ual for a criminal convicted of or arrested als open that is from an not to mail careful in place and confined a incarcer- offense someone incar- attorney and addressed to place used or other than a ation detention jail.” in the cerated exclusively or deten- for the incarceration job responsibilities did Defendant’s Oregon See juveniles.” Revised tion open addressed to require she that section 181.610.2 Statutes the she be familiar with inmates that in this duties of the actors The different Also, procedures. al- Department's clerical sharp duties come into conflict. drama through” though had “thumbed defendant placed officer him corrections of the did not past, the she the Inmate Manual proposed to who control those regarding cir- anything the reading recall to was mandated prisoners he tact with prisoner’s mail which a cumstances under to monitor supervise, as as well control inspected contraband. be communi- printed or written contents of by the inspection to corrections Prior might prisoner receive. cations training officer, received defendant had not position, it was incum- Being placed in this propriety of exam- the constitutional on fa- officer upon the corrections bent mail. Such train- ining prisoners official governing jail rules miliar the course work ing not included in was in the Nothing activities. contained these Oregon defendant taken probation statutory duties of mandated Training at Board Police Standards officers to be requires probation Training, through officer National Institute of tion, diversion, community ser- ap- work release Adult Officers are Probation and Parole applicable judge judges pointed vice. jurisdiction. Oregon Re- See of criminal court fur- The statute Statutes section 137.590. vised 237.003 of noted that section It should probation provides the duties of a ther offi- correction Oregon Statutes defines Revised investigations reports to make officer are to any purposes retire- police officers for cers county, city having jurisdiction court ment, pension, etc. appointed to the officer was or district in which serve, persons placed proba- supervise and to acquainted with such intimately exacting rules.3 mate cause. A more examination doctrine, feel, of that compels a differ- Further, duties of the corrections of ent conclusion. position superior him in placed ficer they Washing met at the defendant when courts Federal turn to the causation accomplish In ton Jail. order to developed in factors the common law of purpose, her defendant had no choice but supply necessary torts to causation “orders”, will, you if accede to the factor in the civil field. This court corrections officer order to realize her requisite enunciated the causal nexus re- purposes. analysis, Under this quired for section 1983 cases in Johnson v. had no alternative but to deliver the mail to Duffy, Cir.1978): 743-44 if the corrections officer she desired to provides, pertinent Section 1983 plaintiff.4 have the mail delivered In part, who, “[e]very person order, giving the the corrections officer any ..., color of statute of state clearly acting appropriately in inter *4 subjects, subjected, or causes to any be cepting question pro the mail. The rule citizen of the United per- or other States opened by vides that certain mail must be jurisdiction son within the thereof to the presence the custodial officials in the of the deprivation rights, addressee-prisoner. inescapable any privileges, The con may clusion of this rule is that all mail be immunities by secured the Constitution intercepted and read.5 laws, shall party be liable to the (42 1983). injured_” per- U.S.C. A § Clearly, analysis, under this both “subjects” son deprivation another to the officer and defendant corrections acted right, of a constitutional within the correctly in the matter. Once the mail was meaning 1983, of section if he does an hands, she, course, out of defendant’s act, participates affirmative in another’s powerless to influence the further con acts, perform affirmative duct of the corrections officer. This con omits to by differing clusion is mandated statu legally required act which he is to do that tory duties of the defendant and the correc deprivation causes the of which com- tions officer. The corrections fur officer’s plaint (Sims Adams, (5th is made. v. handling beyond ther of the mail was de Cir.1976) 829). Moreover, per- power fendant’s to control or to even influ participation sonal only predi- ence. cate liability. Anyone for section 1983 foregoing analysis, on
Based
we find
who “causes”
subjected
citizen to be
completely
that defendant was
out of the
deprivation
to a constitutional
is also lia-
alleged
chain of causation for the
constitu-
requisite
ble. The
causal connection can
deprivation.
tional
It matters not whether
only by
be established not
some kind of
plaintiff’s
constitutional
were violat-
personal participation
direct
depri-
ed by the corrections officer. Defendant
vation,
setting
by
but also
in motion a
participate
did not
in such violation.
series of acts
others which the actor
dissenting opinion
reasonably
bases its conclu-
knows or
should know would
proxi-
sions
the traditional doctrine of
cause others to inflict the constitutional
Oregon
persons placed
super-
3.Section
Revised Statutes
137.620
and conditions of
in their
probation
defines the duties of a
officer Ore-
encourage
persons
vision and to
such
to im-
Summarized,
(a)
gon.
they are:
to make inves-
prove their conduct or conditions.
tigations
reports,
judges
as directed
(b)
county;
supervise per-
to receive and
seriously suggested
4. No one has
that defendant
(c)
placed
probation by
judges;
sons
on
return the mail to the sender.
assistance,
provide
supervise any
release
and to
diversion,
person placed in a
work release or
McDonnell,
539, 574,
5. See
v.
418 U.S.
Wolff
(d)
community
program;
give
service
each
2963, 2983,
935,
(1974);
41 L.Ed.2d
person placed
supervision
their
state-
Martinez,
Procunier v.
94 S.Ct.
probation
pro-
ment of conditions of their
(1974), concerning
gram;
tions;
person regarding
instruct such
the condi-
right
prisoners.
to censor mail of
keep
concerning
informed
the conduct
States,
U.S.App.D.C.
v.
Cir.
United
(Cf. Beverly Morris
injury.
1356.)
mind,
Being a state
1972)
F.2d
F.2d
840.
rarely susceptible
proof,
of direct
important to note that Johnson
It is
ordinarily
must
be inferred from the
of three
supra,
requires one
Duffy,
presupposes knowledge.
facts.
It
Rein
may
imposed upon
things
liability
be
before
Co.,
hard
Lawrence
Warehouse
a defendant:
Cal.App.2d
107 P.2d
504. A
an affirma-
1.
defendant must do
mental attitude which can seldom be
being
plaintiff
tive act which results
evidence,
by direct
proved
but must ordi
federally protected rights;
his
deprived of
narily
proved by
from
circumstances
participate in
defendant must
2. The
may
it
be inferred. State v.
which
which, act-
of another
the affirmative acts
Gantt,
N.C.App.
S.E.2d
5.
ing concurrently, results in
existing at
A state of mind
the time a
federally protected
being
his
deprived of
an offense
person commits
rights; or
act,
infer
shown
circumstances and
perform
must omit to
ences
therefrom.
v. Ev
deducible
State
legally required to do
he is
an act which
ans,
219 Kan.
548 P.2d
plain-
deprivation of the
which causes
throughout
is used
word “intent”
federally
rights.6
protected
tiffs
Torts, 2nd, to
the Restatement of
denote
Prossor and Keeton
The authors of
the actor desires to cause conse-
Torts,
results of un
unforeseeable
discuss
act,
quences
his
or that he believes
tort context.
causes
foreseeable
consequences
substantially
*5
observe,
fore
“If the defendant can
They
from it. Sec. 8A.
certain to result
nor
any danger
injury,
of direct
see neither
quotation,
by the
an
As shown
above
cause,
intervening
from
risk
an
important only
act becomes
intentional
negligent.” Pros
simply
act,
the actor intends not
but
when
Keeton,
on
Prossor and Keeton
sor &
consequences of the
The
the harmful
act.
Ed.1984).
Torts,
311,
44, (5th
at
section
no
absolutely
information
record contains
In
analogy
apt
here.
particularly
This
of
correc-
either knew the
that defendant
law,
of
doctrine of
the function
tort
concerning the
officer’s intention
tions
is to
outer
proximate cause
establish
mail,
alternately,
defendant intend-
or
negligent actors
limits to which
disobey the
that the officer would
law.
ed
liability
injured.
those
As we
result in
to
quotation from
from the above
can see
starting
Parratt
a
of cases
with
In series
supra, proximate cause
Duffy,
v.
Johnson
1908,
527, 101
68
U.S.
S.Ct.
Taylor, 451
v.
in
civil
the same
has served
(1981),
Supreme Court de-
420
L.Ed.2d
law.
of mind
veloped
analysis
an
of the "state
deprivation
prop-
to
required
constitute
opinion
much
dissenting
makes
The
in
by Justice Powell
erty,” an issue voiced
argument stipu
at
that counsel
fact
Taylor,
concurring opinion. Parratt v.
his
intentional.
Koskey’s act was
lated that
1919,
547,
1908
68
101
at
supra,
S.Ct.
many
has
varied
“intentional”
word
Indeed,
Powell ar-
Justice
L.Ed.2d 240.
shadings
different
meanings
that take
opinion against
concurring
in that
gued
in which the
upon the context
depending
for suits
courts
up the federal
opening
used.
word is
affirma-
no
there was
evidence
where
Collegiate Dictionary de-
Webster’s New
power.
governmental
abuse
tive
as “an act
word “intentional”
fines the
design.”
in
Black’s Law
v.
analysis
continued
Daniels
by intention
This
done
662,
provides:
Williams,
88
Fifth Edition
Dictionary,
case, prison
(1986). In that
resolve,
L.Ed.2d
determina-
Design,
Intent.
stairway. There
pillow on the
guard left a
person acts. Witters
tion with which
liability upon
v. Coun-
in Hammond
miscon-
of a subordinate's
ratification
6. Official
Cir.1988).
Madera,
ty
F.2d
impose
suggested
to
to be sufficient
duct was
plaintiff
that he intended the
inmate,
conse-
was no evidence
assaulted
i.e., injuries to the back
quences,
personal
and ankle
injury.
grant-
suffered
State law
he fell after
when
encoun-
complete
public employ-
ed
immunization of
majority opinion
tering
observed:
it.
ees from
type.
claims of this
The majority
dealing
opinion pointed
a claim that such a
out as follows:
When
right
prisoners
in
creates
document
Respondents’ lack of due care in this
government official because he
sue a
injury,
case led to serious
but that lack
created an
condition
negligently
unsafe
simply
of care
approach
does not
the sort
in
prison, we bear
mind Chief
government
of abusive
conduct that the
Marshall’s admonition
“we
Justice
designed
Due Process
pre-
Clause was
forget;
that it is a
never
constitu-
must
Daniels, ante,
vent.
at 331-
[474 U.S.]
expounding,”
McCulloch v.
tion we
88 L.Ed.2d
1344, 1349-50(9th Cir.1985)
extent that it
opinion
court’s
Price
negligence
proximate
Koskey’s
findings of
cause
on the conclusion that
rests
error). We believe the
negligent
reviewed for clear
more than
and thus
duct was no
clearly
district court
erred.
culpability
re-
did not rise
the level
process
actions
quired
section 1983 due
stipulated
facts
that Kos-
reveal
*7
Williams,
v.
under Daniels
guard’s request
key complied with the
that
(1986), and
106 S.Ct.
mail,
she surrender Stevenson’s
which
Cannon,
474
106
Davidson v.
U.S.
mail,
legal
inspection. The
qualified as
for
(1986).
668,
REINHARDT, Judge, Circuit she handed the letter over the under- permitting purpose stood its search out- dissenting: presence prisoner. side the Both simple reaches a conclusion. majority par- constructions are consistent with the dictum—that considerable It holds—amidst stipulations. ties’ case, (Ste- appellee this under the facts of venson) prove compelling why unable to more I see reasons are two has been negligence part ap- required adopt on the the second version of simple than First, Panner, quarrel Judge I finder of (Koskey). While do not events. pellant fact, legal negligence Koskey intentionally conclusion that found that prison guard to the of a constitutional turned over the letter to the does not rise level violation, strongly disagree I with the ma- for the of an immediate search. It its jority’s absolutely characterization events and clear this circuit that this willingness conclu- finding clearly to overturn the factual if it is reversible parties See, court which the e.g., Maricopa sions of district erroneous. EEOC v. accept District, as correct. Community College themselves (9th Cir.1984); F.2d v. Nicholson prisoner in the Stevenson was a Wash- Education, Board 864 n. 6 F.2d ington County Jail. was his as- (9th Cir.1982); Chesher, v. United States signed probation parole officer. For Cir.1982); (9th 678 F.2d 1358 n. 3 record, entirely not clear from the reasons Thompson, v. 679 F.2d Collins legal addressed to Stevenson fell into (9th Cir.1982); v. Mountain United States sending Koskey. Rather than the hands Co., 588 F.2d States Construction legal correspondence through normal (9th Cir.1878); Williams, Starsky n. 5 channels, Koskey voluntarily assumed re- (9th Cir.1975); Lundgren 512 F.2d hand-delivering the sponsibility for letter Freeman, Cir. directly to Stevenson. When she arrived 1962). Our review trial court’s fac jail, prison guard, identity re- whose highly tual determinations is thus defer unknown, requested that she surren- mains ential, may give situation that rise inspection. letter for She handed der the plausible interpretations to two must be guard to the and waited while he the letter in a resolved manner consistent with the opened and leafed the contents. case, findings. district court’s In this present during the in- Stevenson stipu Panner concluded from the found, spection. the district court As lated record that intended that the Koskey’s argu- counsel conceded at oral guard open findings the letter. His are ment, legal Koskey “intentionally gave stipulated consistent with the facts and inspection officer for mail to a correction’s supported underlying well trial docum presence.” the inmate’s Her outside of whatsoever, basis, entation.1 There is no constitutional error. actions constituted law, majority’s peremp in fact or in for the stipulated The case was tried on facts. tory conclusion that the district court’s Admittedly, stipulated subject are facts findings clearly erroneous. interpretations. conflicting The facts Second, appellant never, simply say appellant “was asked not in her trial brief, Washington County appellate corrections officer to memorandum or in her finding those items for a contra- tests the first surrender factual of the district inspection. complied suggest band Defendant with court. Nowhere does she that she surprised request and the corrections officer was or taken aback *8 through guard’s in the en- I leafed the documents actions. find it remarkable that stipulated argument velope.” majority facts do not clear- the has based its entire overturn, perceived ly say clearly whether handed over the on a need to erroneous, surprised by finding par- letter and then was the a factual that the effect, guard’s dispute. unconstitutional search or whether ties do not even In the port Judge interpretation 1. The record before the district court also in- Panner’s of the evi- sup- cluded affidavits and memoranda which dence. presence recipient. the of the intended ap- laws two basic majority has broken Bather, legal find- she has relied on three theo- deference to factual review: pellate finding preclude court and review limited ries that she contends ings of the district parties. liability notwithstanding raised the the intentional na- to the issues the majority ture her conduct. Because gives majority’s version of events solely reaches based the a conclusion and ineluct- a mechanical opinion the entire findings erroneous factual it renders sua feel, realities of to the one unrelated able I no reason sponte, see to address Judge Price’s factual dispute. Undér the arguments, appellant’s legal all of which I case, Koskey no choice theory of the had I to without merit. dissent. believe to legal letter the to hand over guard.2 more famous She—-like prison merely
government officials—was follow- accomplish
ing “In order to her orders. had choice but to no
purpose, will, ‘orders,’ if you to
accede in order to realize her
corrections officer op. at 1438. Whatever
purposes.” Maj. Nuremburg-style merits CAVANAUGH, Michael imaginatively Judge Price has so defense Petitioner-Appellant, up Koskey, dif- for a fundamental dreamed the facts ficulty is that this case with it KINCHELOE; Reed, Larry Amos simply not support such a defense to Respondents-Appellees. clearly options. had She present. unquestionably position do was No. 88-3973. something of Steven- the violation about Appeals, States Court of United rights. All she had to son’s constitutional Ninth Circuit. request guard do, example, for least, she could obey very At the law. Argued May and Submitted 1989. door, around, walked out the turned have July 1989. Decided in the nearest mailbox. and stuck the letter gone normal The letter would and, to pre- one entitled
prison channels
sume, prison- eventually opened in the been relatively slight think presence.3 I this
er’s a small have been
inconvenience would protection of Steven- pay for the
price rights. constitutional
son’s accepted of the facts interpretation parties to this case
by the lay to rest the fairly court should
district ap-On arguments majority.
central Judge appellant questioned has never
peal, finding that handed over the
Panner’s she per- for the
confidential letter
mitting search outside guard make a reading legal a violation of the suggest legal mail is goes clear that so far as to Price guard. prison attorney-client may properly prisoner’s privacy be read mail Maj. op. clearly Sterrett, prison See, allow e.g., Taylor rules privilege. 462, inspection, search Cir.1976). for a contraband legal permit reading mail. The does reading explicitly such mail. "At no rules bar adopted belatedly this has now 3. The WCCC any confidential shall member read time a staff delivering inmates. practice mail to prison if rules Even did communication.” permit Judge interpretation, it should be Price’s