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Nordstrom v. Ryan

United States District Court, D. Arizona

February 5, 2016

Scott Douglas Nordstrom, Plaintiff,
v.
Charles L. Ryan, et al., Defendants

Page 1202

          For 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.

         For Charles L Ryan, Director of ADOC, Defendant: Neil Singh, LEAD ATTORNEY, Office of the Attorney General - Phoenix, Phoenix, AZ.

Page 1203

         ORDER

         David G. Campbell, United States District Judge.

         Plaintiff 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.

         The 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.

         I. Background.

         As background, this order will cite from the Ninth Circuit's decision in this case, using the ninth Circuit's emphasis.

         On May 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.

         Nordstrom filed a grievance based on Officer Hawthorne's actions. Id. Director

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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:

1.4.2.2 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.

         Nordstrom 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.

         Nordstrom 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.[1]

         On 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

Page 1205

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 233-38.

         After 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.

         II. Findings of Fact.

         A. ADC's Penological Interests.

         The 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 operations.

         Nearly 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.

         One of 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.

         At the 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; [2]

Page 1206

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.

         In 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 introduction. Id.

         Defendant 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.

Page 1207

          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.

         On the 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 communications.

         Unfortunately, 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.

         Nordstrom 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.

         B. ADC's Legal Mail Policies and Procedures.

         The 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.

         ADC's 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

Page 1208

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 considered contraband.

         ADC's 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 illegal activities.

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.

         ADC 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.

         C. ADC's Legal Mail Inspection Process.

         The 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.

         The 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.

         The 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, ...

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