Scott Nordstrom v. Charles Ryan

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SCOTT D. NORDSTROM, No. 12-15738 Plaintiff-Appellant, D.C. No. v. 2:11-cv-02344-

DGC-MEA

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 April 7, 2014—San Francisco, California

Filed August 11, 2014

Before: Barry G. Silverman, William A. Fletcher, and Jay S. Bybee, Circuit Judges.

Opinion by Judge Silverman; Dissent by Judge Bybee SUMMARY*

Prisoner Civil Rights

The panel reversed the district court’s dismissal, for failure to state a claim, and remanded in an action brought by an Arizona state prisoner who alleged constitutional violations when prison officials read a confidential letter he intended to send to his lawyer, instead of merely scanning and inspecting the letter for contraband.

The panel held that plaintiff’s allegations that prison officials read his legal mail, that they claimed entitlement to do…

Dissent by Judge BYBEE.

OPINION

Plaintiff-Appellant Scott Nordstrom is on death row in the Arizona State Prison. He alleges that when he sought to send a confidential letter—“legal mail”—to his lawyer, a prison guard actually read the letter, instead of merely scanning and inspecting the letter for contraband. He claims that when he protested to the guard that the letter was a confidential attorney-client communication and should not be read, the guard told him to go pound sand. Nordstrom’s formal grievances were denied on the stated ground that Department of Corrections staff “is not prohibited from reading the [legal] mail to establish the absence of contraband and ensure the content of the mail is of legal subject matter.”

Nordstrom then brought a 42 U.S.C. § 1983 lawsuit against Department of Corrections officials, as well as the officer who allegedly read his legal mail, seeking to enjoin them from reading his letters to his lawyer. He alleges that the defendants’ conduct violates various constitutional rights, including his Sixth Amendment right to counsel. The district court dismissed the complaint at the pre-answer screening stage for failure to state a claim under any…

dissenting:

Scott D. Nordstrom alleges that, on one occasion during his seventeen-year incarceration, an Arizona Department of Corrections (ADC) officer read a single letter he had written to his attorney. Nord-strom claims that this one event prejudiced his direct appeal, although he cannot explain how.

Based on these allegations, the majority concludes that Nordstrom has adequately pleaded a violation of his Sixth Amendment right to counsel. I believe the majority is twice wrong. First, the majority has misread Wolff v. McDonnell, 418 U.S. 539 , 94 S.Ct. 2963 , 41 L.Ed.2d 935 (1974), to hold that prison officials may not read legal letters, even to the limited extent necessary to detect illegal conduct. See Maj. Op. at 910-11. Second, the majority disregards Williams v. Woodford, 384 F.3d 567 (9th Cir.2004), by holding that an inmate need not show substantial prejudice to state a right-to-counsel claim, as long as this court thinks that such prejudice is likely. See Maj. Op. at 910-11.

In my view, the Sixth Amendment does not prevent prison officials from reading legal letters with an eye toward discovering illegal conduct. Furthermore, claims under the Sixth Amendment…