United States District Court, D. Arizona
Scott Douglas Nordstrom, Plaintiff: David A Lane, Killmer
Lane & Newman LLP, Denver, CO; Gregory C Sisk, University of
St. Thomas School of Law - Appellate Clinic, Minneapolis, MN.
Charles L Ryan, Director of ADOC, Defendant: Neil Singh, LEAD
ATTORNEY, Office of the Attorney General - Phoenix, Phoenix,
G. Campbell, United States District Judge.
Scott Nordstrom is an inmate who is in the custody of the
Arizona Department of Corrections (" ADC" ).
Nordstrom is held in the Browning Unit of ADC's Eyman
Complex. Defendant Charles Ryan is the Director of ADC.
Nordstrom brings this action against Director Ryan under 42
U.S.C. § 1983, alleging violations of his First, Sixth,
and Fourteenth Amendment rights based on ADC's inspection
of his outgoing legal mail.
Court denied Nordstrom's motion for a preliminary
injunction (Doc. 22) after an evidentiary hearing. Doc. 43.
During a subsequent telephone conference, the parties agreed
that, following discovery, the Court could resolve this case
on the merits without additional in-court testimony. Doc. 52.
The parties submitted simultaneous merits briefs (Docs. 67,
69) and simultaneous response briefs (Docs. 73, 74), and the
Court heard oral arguments on January 22, 2016 (Doc. 80). For
the following reasons, the Court will deny Plaintiff's
request for a declaratory judgment and permanent injunction,
and enter judgment in favor of Defendant.
background, this order will cite from the Ninth Circuit's
decision in this case, using the ninth Circuit's
2, 2011, Nordstrom notified Correctional Officer F. Hawthorne
that he had outgoing legal mail to be processed.
Nordstrom v. Ryan, 762 F.3d 903, 907 (9th Cir.
2014). The letter was addressed to Sharmila Roy,
Nordstrom's court-appointed lawyer handling the appeal of
his murder conviction and death sentence. Id.
Nordstrom alleged that Hawthorne removed the two-page letter
from the envelope and read its contents in his presence.
Id. Nordstrom asked Hawthorne to stop reading his
attorney-client letter, and alleges that Hawthorne responded
by saying " [d]on'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." Id. Hawthorne returned the
letter to Nordstrom, who sealed it and placed it with the
outgoing mail. Id.
filed a grievance based on Officer Hawthorne's actions.
Ryan responded to Nordstrom's final appeal by citing the
relevant portion of ADC's legal mail policy, Order
902.11, that was in force at that time:
18.104.22.168 All outgoing letters to an inmate's attorney or
to a judge or court shall be brought to the mail room by the
inmate, where the letter shall not be read or censored but
shall be inspected for contraband and sealed in the presence
of the inmate.
Id. " In denying Nordstrom's grievance,
[Director] Ryan reasoned that '[s]taff is authorized to
scan and is not prohibited from reading the mail to
establish the absence of contraband and ensure the content of
the mail is of legal subject matter.'" Id.
filed a pro se § 1983 lawsuit against several
defendants, including Director Ryan and Officer Hawthorne.
Doc. 1 at 1-2, 4. Nordstrom alleged violations of his First,
Sixth, and Fourteenth Amendment rights based on Officer
Hawthorne's actions, Director Ryan's response to his
grievance, and ADC's legal mail policy. Id. at
3-11. Consistent with the Prison Litigation Reform Act, 28
U.S.C. § 1915A, this Court screened Nordstrom's
complaint. The Court held that Nordstrom failed to state a
claim because he failed to allege any actual injury or
prejudice resulting from Director Ryan's and Officer
Hawthorne's actions, and because prison officials are
permitted to check outgoing legal mail for the presence of
contraband and illegal activities. Doc. 4 at 4-5. The Court
dismissed Nordstrom's complaint, but granted leave to
amend. Id. at 5-6. Nordstrom filed an amended
complaint ( see Doc. 5), which the Court dismissed
on the same grounds ( see Doc. 7 at 3-5). Nordstrom
was not granted leave to amend. Id. at 5.
appealed the dismissal to the Ninth Circuit.
Nordstrom, 762 F.3d at 907. Because Nordstrom
alleged that Officer Hawthorne read a letter related to his
murder conviction and death sentence appeal, the court of
appeals found that his claim implicated the Sixth Amendment.
Id. at 909. The Ninth Circuit held that a Sixth
Amendment violation had occurred if, as Nordstrom alleged,
ADC guards were reading, rather than " merely inspecting
or scanning," inmate legal mail. Id. at 906.
The Ninth Circuit held that Nordstrom's Sixth Amendment
claim could survive § 1915A screening based on his
" allegations that prison officials read his legal mail,
that they claim entitlement to do so, and that his right to
private consultation with counsel has been chilled."
Id. at 911. The court of appeals did not reach
Nordstrom's First or Fourteenth Amendment claims.
Id. at 909.
remand, Nordstrom filed a motion for preliminary injunction
(Doc. 22), which Defendants opposed (Doc. 28). The Court held
an evidentiary hearing on March 12, 2015 and received
testimony from Scott Nordstrom, Emily Skinner, Clint Davis,
Brandon Nail, Daniel McClincy, Hope Ping, and Carlos Reyna.
Doc. 43 at 1. At the end of the hearing, the Court denied
Nordstrom's motion for preliminary injunction from the
bench. Docs. 43 at 1; 67-9 at 238. The Court found that
Nordstrom was unlikely to succeed on the merits because,
based on the evidence presented at the hearing, it appeared
that ADC's policies
and practices were compliant with the Ninth Circuit's
directives in Nordstrom and the Supreme Court's
decision in Wolff v. McDonnell, 418 U.S. 539, 94
S.Ct. 2963, 41 L.Ed.2d 935 (1974). See Doc. 67-9 at
the hearing, the parties stipulated to the dismissal of
Defendants Ramos and Hawthorne. Doc. 47. The Court granted
the stipulation. Doc. 49. As a result, Director Ryan is the
sole remaining Defendant.
Findings of Fact.
ADC's Penological Interests.
Court heard testimony from Clint Davis, a 21-year detective
in the gang unit of the Phoenix Police Department, and Carlos
Reyna, the Special Security Unit coordinator for ADC's
Eyman Complex. On the basis of their credible testimony, the
Court finds that ADC has legitimate interests in maintaining
institutional security and preventing gangs and criminal
organizations from using its facilities to run their
all of the investigations of ongoing criminal activity by the
Phoenix Police Department's gang unit implicate persons
in local jails or state or federal prison facilities. Doc.
67-9 at 95. The gangs are active in prisons and jail. The
Arizona Mexican Mafia (" AMM" ), for example,
actually runs its sophisticated criminal enterprise from
prison -- the ADC's Browning Unit, colloquially known
among law enforcement as " the Hive." Docs. 67-9 at
114-15; 67-11 at 12. The AMM's criminal operations
require regular communications between the Hive and the
outside world. Docs. 67-9 at 115-16; 67-11 at 12. The AMM
uses violence, fear, and intimidation to attempt to control
the prisons, jails, and streets. Doc. 67-11 at 12.
the ways prison gang members communicate with the outside
world is through misuse of the attorney-client privilege. By
communicating under the guise of the privilege, criminal
organizations seek to conceal criminal conduct and
conspiracies from prison officials and law enforcement. Docs.
67-9 at 112; 67-11 at 9. Officer Davis testified that the
problem is particularly bad in Arizona. He personally has
seen inmates misuse legal mail " thousands" of
times. Doc. 67-9 at 97-99. He described the problem as "
rampant," and explained that inmates " are
continually abusing the attorney-client privilege, including
legal mail, to further their criminal objectives."
Id. at 117-18. Officer Reyna testified that he
encounters " attempts by inmates to commit criminal acts
using legal mail" on a " daily basis."
Id. at 199. Officer Davis testified that these
abuses have facilitated numerous felony crimes and attempted
crimes, including money laundering, drug trafficking,
homicide, extortion, and arson. Id. at 99. Officer
Davis also noted that many crimes have been prevented because
inspecting officers were able to detect the planned crimes in
illegitimate legal mail. Id. at 100-01. He testified
that gangs, criminal organizations, and inmates are aware of
the legal mail inspection process, and they attempt to use
this knowledge to conceal criminal communications and
contraband from inspecting officers. Id. at 97, 206.
hearing, Defendant offered exhibits to show how inmates use
their knowledge of the legal mail inspection process to try
to obtain contraband while in prison. In one exhibit, an
inmate sent a letter to an associate containing detailed
instructions on how to send contraband -- including a
cellular phone, a razor blade, and drugs -- into the prison
by disguising it to look like legal mail. See Ex.
126 at 8-10; 
see also Doc. 67-9 at 210-16. The inmate told his
associate to " [f]ollow my instructions down to the T. .
. . I know this [process] works [be]cause I did it when I was
in Yuma." Ex. 126 at 7. The inmate told his associate to
hide the contraband in a stack of " about 950 pages of
caselaw" printed from Westlaw. Id. at 8. He
provided detailed instructions on how to wrap and package the
contraband to avoid detection. Id. at 8-9. He
provided sample labels from a legitimate law office with a
diagram illustrating where the labels should be placed on the
envelope to make the package look authentic. Id. at
5, 10. The instructions specified that the package must be
sent from Phoenix because that is where the law office is
located. Id. at 9.
another exhibit, an inmate sent instructions detailing how to
mimic legitimate legal mail to conceal contraband.
See Ex. 133 at 2-3; see also Doc. 67-9 at
171-75. The letter began with language that could appear in
authentic legal mail: " [p]lease be advised that I
recently obtained the copy of your 'Petition for
Review' in which you filed in the Div. #2 court of
appeals on my behalf." Ex. 133 at 2. The tone of the
language changed, however, in the middle of the second
paragraph, with the inmate admitting: " I've given
this correspondence the appearance of legal mail."
Id. The inmate then instructed his associate to hide
contraband in a stack of caselaw to avoid detection.
Id. at 2-3. He directed his associate to use the
return address of a legitimate law firm. Id. at 3.
The inmate emphasized that the letter must be " meter
stamped" at a post office in order to look authentic.
Id. The inmate also provided a phone number for a
contact from whom the " the finished product" could
be obtained. Id. At the end of the letter, the
inmate resumed the professional tone to match the
also provided evidence of several specific instances of
inmates abusing their right to send and receive legal mail to
attempt to facilitate criminal acts. Two such instances
involved members of the AMM. In one, an inmate who was a
member of the AMM attempted to use his pro per status to send
bogus legal mail to facilitate the murder of a police officer
in Glendale. Doc. 67-9 at 104. In the other, an inmate's
outgoing legal mail contained what, on first glance, appeared
to be a legitimate legal document -- a motion in limine
prepared by licensed attorneys. See Ex. 107 at 4.
But the inmate had added micro-writing between the lines of
the motion's text on the second page. Id. at 5.
The inmate's micro-writing contained detailed directions
to his associates who were not incarcerated to carry out a
number of criminal acts. Id. ; see also
Docs. 67-9 at 118-22; 67-11 at 2. The inmate told them to
" pay a visit to Turtle and let him know you have a
[message] from" the inmate. Ex. 107 at 5. The message
was that the AMM " controls the drug trade within the
walls of the state and federal system," which includes
all " raza dealers" in the streets. Id. As
a result, Turtle was to be told that he owed the AMM monthly
payments. Id. If he refused, the inmate's
associates were to burn down one of Turtle's shops and
check back with him. Id. If he refused again, they
were to burn down another shop. Id. The inmate also
told his associates that they " need 2 Glock 21 .45
caliber [handguns] and an AK47 [assault rifle]" with
extra magazines for each weapon, and " 3 vests
preferably with metal plates." Id. The inmate
advised his associates to " use latex gloves, zipties,
and mask[s] if you keep them alive," but he understood
that it is " really best to take 'em out, less
stress." Id. Inspecting officers discovered the
microwritten directions during an outgoing legal mail
inspection and prevented these crimes from occurring. Docs.
67-9 at 119-22; 67-11 at 20, 26-28.
Defendant submitted two other examples involving another
gang, the Aryan Brotherhood. In the first, a member of the
Aryan Brotherhood sent an inmate a typewritten letter on a
law firm's letterhead. See Ex. 104; see
also Doc. 67-9 at 199-206. The letter contained coded
messages discussing gang business, including plans to expand
the gang's criminal activities and to institute a new
leadership structure. See id. The letter was
discovered because its postmark did not match the law
firm's address on the envelope and letterhead. Doc. 67-9
at 199-201. In the second example, an associate sent an
inmate a letter with caselaw from what appeared to be a
legitimate law firm. See Exs. 121-22; see
also Doc. 67-9 at 206-10. The letter contains two
different fonts, with professional sounding language in one
font and coded gang messages in the other. Ex. 122 at 1. The
letter has several pages of caselaw attached to it.
Id. at 2-12. In the middle of the caselaw, however,
is the Aryan Brotherhood's " roll call," or
member roster. Id. at 5-9; see also Doc.
67-9 at 209-10.
basis of these exhibits and related testimony, the Court
finds that some inmates clearly attempt to misuse incoming
and outgoing legal mail to facilitate criminal activity
inside and outside the prison system. Prison officials and
law enforcement have a legitimate interest in detecting such
criminal activities sometimes also include attorneys or their
assistants. Defendant provided four examples. Attorney Jason
Keller provided AMM inmates with drugs, cell phones, and
other contraband. Doc. 67-9 at 105. Attorney David DeCosta
passed inmates legal pads containing heroin and
methamphetamine. Id. at 106-07. Attorney Carmen
Fischer -- who has appeared in this Court many times --
provided financial support to the AMM and passed information
between gang members. Id. at 107-08. Fischer was
later charged with, and convicted of, felonies for her
actions. Id. at 108. Mitigation specialist Jessica
Mukavetz passed communications and prison contraband to an
inmate. Id. at 108-09. These examples show that
prison officials cannot protect against illegal
communications or the passing of contraband merely by
ensuring that communications are to or from a licensed
attorney or their assistants.
argues that Defendant has presented no specific instance
where an inmate has included criminal communications in a
letter to or from a legitimate licensed attorney. Doc. 69 at
12. Although it is true that the foregoing evidence does not
include such an example, the Court cannot conclude that the
ADC faces no risk of such communications. The evidence amply
shows that some inmates misuse legal mail for illegal
purposes, and that some lawyers are complicit in inmate
crimes. From these facts, the Court finds that the ADC faces
a legitimate risk that legal mail -- even when sent to or
from licensed attorneys -- might include communications
regarding crimes inside or outside the prison.
ADC's Legal Mail Policies and Procedures.
following findings of fact are based primarily on ADC's
legal mail policy, Order 902.11, Director's Instruction
333, and the testimony of Carlos Reyna. On the basis of
Defendant's documentary evidence and Officer Reyna's
credible testimony, the Court finds that ADC implemented and
followed its legal mail policies and procedures.
policies and procedures define several relevant terms. In
Order 902, " legal mail" is defined as " [a]ny
letters to or from an inmate's attorney as defined above,
or to or from a judge or to or from a court of law."
Doc. 67-10 at 22. In Director's
Instruction 333, " contraband" is defined to
include " [a]ny non-legal written correspondence or
communication discovered as a result of scanning incoming or
outgoing legal mail." Docs. 28-1 at 5; 28-2 at 5; 67-9
at 190. Thus, non-legal mail disguised as legal mail is
legal mail policy, Order 902.11, as modified by
Director's Instruction 333 on January 8, 2015 (Doc. 28-3
at 2), states in relevant part:
Staff who process incoming or outgoing inmate mail shall . .
. [i]nspect such mail for contraband, stamp the envelope
" LEGAL MAIL, ARIZONA DEPARTMENT OF CORRECTIONS"
using a commercial stamp, and log it before it is placed in
the envelope and sealed by the inmate. . . . All outgoing
legal mail shall be brought to the mail room by the inmate,
where the letter will be inspected for contraband,
but shall not be read by staff, and scanned
to ensure it is in fact legal mail. . . . Staff may inspect
the document but 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
Docs. 28-1 at 2-3; 28-2 at 2-3 (emphasis added). The parties
have stipulated -- and there is no evidence to the contrary
-- that Director's Instruction 333 was implemented and is
followed, and that the prior directive was also implemented
and followed. Doc. 67-9 at 223-24.
requires officers who process legal mail to undergo training.
Inspecting officers are trained to scan legal mail for
contraband by looking for keywords or mail that utilizes
different fonts, which may indicate an alteration or hidden
message. Doc. 67-9 at 197-98. Officers are trained not to
read letters line-by-line. Id. at 198.
ADC's Legal Mail Inspection Process.
following findings are based primarily on the sworn testimony
of Plaintiff Scott Nordstrom; Brandon Nail, a correctional
officer who inspects legal mail in the Browning Unit; Daniel
McClincy, a 19-year sergeant who supervises the unit in
charge of processing inmate mail at the Eyman Complex; Hope
Ping, the associate deputy warden who was previously the
chief of security of the Browning Unit; and Carlos Reyna.
inspection of outgoing inmate legal mail begins as follows.
An inmate places the legal mail in an unsealed envelope.
Id. at 51. The inmate hands the unsealed envelope to
a correctional officer in the mail office or, if the inmate
does not have access to the mail office, to an officer who is
collecting legal mail. Id. The officer removes the
letter from the envelope and inspects it. Id.
Court heard testimony from Sergeant McClincy, supervisor of
mail for the Eyman Complex. McClincy described the process
for inspecting legal mail in the following testimony, which
the Court found credible:
Q: In your experience and understanding of the process of
inspecting legal mail, what happens -- what's supposed to
happen when an officer opens the envelope and looks at that
first page? What's supposed to happen?
A: For incoming legal mail?
Q: Let's say outgoing legal mail.
A: Well, inmates do not have access to typewriters, so
you're going to be looking at handwritten material. Most
inmates do not have the clearest handwriting, ...