Scott D. Nordstrom, Plaintiff-Appellant,
Charles L. Ryan, Director of ADOC; A. Ramos, Deputy Warden; F. Hawthorne, Defendants-Appellees.
and Submitted January 11, 2017 San Francisco, California
from the United States District Court for the District of
Arizona D.C. No. 2:11-cv-02344-DGC David G. Campbell,
District Judge, Presiding
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.
Singh (argued), Assistant Attorney General; Mark Brnovich,
Arizona Attorney General; Office of the Attorney General,
Phoenix, Arizona; for Defendants-Appellees.
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.
A. Stevenson and Benjamin H. Schaefer, Montgomery, Alabama,
as and for Amicus Curiae Equal Justice Initiative.
A. Kszywienski, Snell & Wilmer LLP, Phoenix, Arizona;
Lawrence Fox, Yale Law School, New Haven, Connecticut; for
Amicus Curiae Ethics Bureau at Yale.
Before: RICHARD R. CLIFTON and MILAN D. SMITH, JR., Circuit
Judges, and RALPH R. ERICKSON, [*] District Judge.
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.
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.
M.SMITH, Circuit Judge:
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 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.
AND PRIOR PROCEEDINGS
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.
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 ...