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Nordstrom v. Ryan

United States Court of Appeals, Ninth Circuit

May 18, 2017

Scott D. Nordstrom, Plaintiff-Appellant,
v.
Charles L. Ryan, Director of ADOC; A. Ramos, Deputy Warden; F. Hawthorne, Defendants-Appellees.

          Argued and Submitted January 11, 2017 San Francisco, California

         Appeal 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.

          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.

          Before: RICHARD R. CLIFTON and MILAN D. SMITH, JR., Circuit Judges, and RALPH R. ERICKSON, [*] District Judge.

         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.

          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 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 ...


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