« Federal district judge extends Ohio's death penalty moratorium based on execution challenges to January 2015 | Main | "Sex Offender Laws Have Gone Too Far" »

August 11, 2014

Ninth Circuit panel splits over prisoner Sixth Amendment suit about officials reading legal mail

A Ninth Circuit panel handed down a notable new split opinion concerning an Arizona prisoner's lawsuit challenging the constitutionality of how prison officials were treating his legal mail.  Here is how the majority opinion in Nordstron v. Ryan, No. 12-15738 (9th Cir. Aug. 11, 2014) (available here) gets started:

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 constitutional theory.  See 28 U.S.C. § 1915A.

A prison is no ordinary gated community.  It’s a tough place.  Corrections officials obviously have good reason to be on the lookout for contraband, escape plans, and other mischief that could jeopardize institutional security.  Officials likewise have every right to inspect an inmate’s outgoing legal mail for such suspicious features as maps of the prison yard, the times of guards’ shift changes, and the like.  Prison officials know what to look for.  But inspecting letters and reading them are two different things, as the Supreme Court recognized in Wolff v. McDonnell, 418 U.S. 539, 576–77 (1974).  What prison officials don’t have the right to do is read a confidential letter from an inmate to his lawyer. This is because it is highly likely that a prisoner would not feel free to confide in his lawyer such things as incriminating or intimate personal information — as is his Sixth Amendment right to do — if he knows that the guards are reading his mail.

Reading legal mail — not merely inspecting or scanning it — is what Nordstrom alleges the Department of Corrections is doing, and it is what he seeks to enjoin.  We hold today that his allegations, if true, state a Sixth Amendment violation.  We reverse the dismissal of his complaint.

Here is how the dissent by Judge Bybee in Nordstrom gets started:

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. Nordstrom 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 (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 14.  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 14.

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 require proof of actual injury, and Nordstrom does not allege any.  I respectfully dissent.

August 11, 2014 at 02:51 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Ninth Circuit panel splits over prisoner Sixth Amendment suit about officials reading legal mail:


Regardless of whether there is in fact such a right I would wonder how it could possibly be enforced if the prison system were intent on fully reading such mail (at least until the time that some fact were brought up that was only communicated in such a letter). And even then the violation would be extremely difficult to prove (easy to prove that the item was communicated in the letter, hard to impossible to prove that was the only such communication).

Actually, I am somewhat surprised that a prison would even have this task performed in the inmate's presence already. I would think it something that prison officials would would to have performed elsewhere so that someone in administration could be brought in immediately if something were found. I would think prisons would be eager to not have such a call made by a line CO.

Posted by: Soronel Haetir | Aug 11, 2014 4:19:01 PM

The guard was acting thug like, if he read it in front of him, then told him to go pound sand.

This is what hAs to stop. From what Im hearing milk and eggs are being left on the docks in the heat of the summer. Any guesss on eating this?

Anither major thing is this. Im hearing that the ends of the barbells are welded or pinned, so they wont turn. The weights are olympic type that do turn, to prevent injuring the shoulders and wrists.

Sounds like lots have injured their shoulders permanently.

Whats with this.. True thug like behavior.

Posted by: Midwest Guy | Aug 11, 2014 6:37:04 PM

This appeal was brought (and won) by students from our Appellate clinic here at St. Thomas, under the direction of Prof. Greg Sisk.

Posted by: Mark Osler | Aug 12, 2014 11:09:12 AM

A dissent by Judge Torture - how surprising.

Posted by: azazel | Aug 12, 2014 1:01:25 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB