Scott Nordstrom v. Charles Ryan

                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


SCOTT D. NORDSTROM,                     No. 12-15738
               Plaintiff-Appellant,
                                           D.C. No.
                v.                      2:11-cv-02344-
                                          DGC-MEA
CHARLES L. RYAN, Director of
ADOC; A. RAMOS, Deputy Warden;
F. HAWTHORNE,                              OPINION
             Defendants-Appellees.


     Appeal from the United States District Court
              for the District of Arizona
     David G. Campbell, District Judge, Presiding

                 Argued and Submitted
       April 7, 2014—San Francisco, California

                Filed August 11, 2014

   Before: Barry G. Silverman, William A. Fletcher,
           and Jay S. Bybee, Circuit Judges.

             Opinion by Judge Silverman;
               Dissent by Judge Bybee
2                     NORDSTROM V. RYAN

                           SUMMARY*


                      Prisoner Civil Rights

    The panel reversed the district court’s dismissal, for
failure to state a claim, and remanded in an action brought by
an Arizona state prisoner who alleged constitutional
violations when prison officials read a confidential letter he
intended to send to his lawyer, instead of merely scanning
and inspecting the letter for contraband.

    The panel held that plaintiff’s allegations that prison
officials read his legal mail, that they claimed entitlement to
do so, and that his right to private consultation with counsel
had been chilled stated a Sixth Amendment claim. The panel
also held that the allegations supported a claim for injunctive
relief.

    Dissenting, Judge Bybee stated that the Sixth Amendment
does not prevent prison officials from reading legal letters
with an eye toward discovering illegal conduct and that
plaintiff also failed to allege any actual injury.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                  NORDSTROM V. RYAN                      3

                       COUNSEL

Michelle King (argued) and Joy Nissen (argued), Certified
Law Student Representatives, and Gregory C. Sisk,
Supervising Attorney, University of St. Thomas School of
Law Appellate Clinic, Minneapolis, Minnesota; Mason
Boling and Lauren E. Murphy, Certified Law Student
Representatives, and Dustin E. Buehler, Supervising
Attorney, University of Arkansas Federal Appellate
Litigation Project, Fayetteville, Arkansas, for Plaintiff-
Appellant.

Thomas C. Horne, Attorney General, and Neil Singh
(argued), Assistant Attorney General, Office of the Arizona
Attorney General, Phoenix, Arizona, for Amicus Curiae the
State of Arizona.

Donald Specter and Corene Kendrick, Prison Law Office,
Berkeley, California, for Amici Curiae American Civil
Liberties Union, Prison Law Office, and Arizona Center for
Disability Law.

Amy Armstrong and Natman Schaye, Tucson, Arizona, for
Amicus Curiae Arizona Capital Representation Project.

Kelly A. Kszywienski, Snell & Wilmer, Phoenix, Arizona;
Lawrence Fox, Yale Law School, New Haven, Connecticut,
for Amicus Curiae Ethics Bureau at Yale.

Bryan A. Stevenson, Carla C. Crowder, and Benjamin H.
Schaefer, Montgomery, Alabama, for Amicus Curiae the
Equal Justice Initiative.
4                   NORDSTROM V. RYAN

                          OPINION

SILVERMAN, Circuit Judge:

    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
                   NORDSTROM V. RYAN                         5

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.

                     BACKGROUND

   In reviewing an order dismissing a case for failure to state
a claim, we “take as true all factual allegations in the
complaint and draw all reasonable inferences in the plaintiff’s
favor.” Silva v. Di Vittorio, 

658 F.3d 1090, 1101

 (9th Cir.
2011).

    Nordstrom’s claims against Charles L. Ryan, the ADC
Director, A. Ramos, the Deputy Warden of ADC-Eyman, and
F. Hawthorne, a correctional officer, center around the
ADC’s policies and practices concerning outgoing legal mail.
Nordstrom alleges that on May 2, 2011, he prepared a letter
to send to Sharmila Roy, the court-appointed lawyer
representing him in the appeal of his murder conviction and
death sentence. The envelope was marked “legal mail” and
was addressed to “Attorney at Law Sharmila Roy, Esq.”
Nordstrom notified Officer Hawthorne, who was conducting
6                   NORDSTROM V. RYAN

a security walk, that he had legal mail ready to be processed.
Nordstrom alleges that Hawthorne “took [the] clearly marked
‘legal mail’ envelope and removed the two page letter and
proceeded to read the content of [the] correspondence.”
Nordstrom asked Hawthorne to stop reading his “attorney-
client privileged correspondence.” Hawthorne responded:
“[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.” Nordstrom
then told Hawthorne he “was not authorized to read [the]
legal letter, only inspect for contraband; seal, stamp, and log.”
Hawthorne again told Nordstrom he “was not in a position to
tell him how to do his job” and “shoved [the] letter” back to
Nordstrom. Nordstrom sealed the letter and placed it in the
door, and it was gone the next morning.

    Nordstrom filed a series of grievances complaining that
Hawthorne read his privileged letter. His final appeal was to
ADC Director Ryan. Ryan’s response cited the ADC’s
written legal mail policy, Order 902.11, which states in
relevant part:

        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. All outgoing
        legal documents to an inmate’s attorney or to
        a judge or court (other than letters to an
        inmate’s attorney or to a judge or court, such
        as pleadings, briefs and motions) shall not be
        censored, but staff are not prohibited from
        reading such documents to the extent
                       NORDSTROM V. RYAN                                7

         necessary to establish the absence of
         contraband.

(Emphasis added.) In denying Nordstrom’s grievance, 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.” (Emphasis added.)

    Nordstrom alleges that Officer Hawthorne’s conduct and
Director Ryan’s approval of that conduct “forced him to
cease conveying critically sensitive information concerning
necessary aspects of his case for appellate adjudication to his
attorney due to [ADC]’s continued threat to read any
outgoing legal correspondence.”

    Nordstrom filed this § 1983 action pro se alleging that the
ADC’s policy and practice of reading his outgoing legal mail
violates his First, Sixth, and Fourteenth Amendment rights.
In addition to costs, he seeks a declaration that the
defendants’ conduct was unconstitutional and an injunction
preventing them from reading his legal mail in the future.

    The district court dismissed the first amended complaint
with prejudice at the pre-answer screening stage under the
Prison Litigation Reform Act (“PLRA”), 28 U.S.C. §1915A.1

  1
     The PLRA contains a provision requiring district courts to screen
prisoner complaints before or soon after docketing if the case is “a civil
action in which a prisoner seeks redress from a governmental entity or
officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). A
court must dismiss a complaint if it is “frivolous, malicious, or fails to
state a claim upon which relief may be granted,” or if it “seeks monetary
relief from a defendant who is immune from such relief.” 28 U.S.C.
§ 1915A(b). The purpose of § 1915A is “to ensure that the targets of
8                     NORDSTROM V. RYAN

First, the court held that Nordstrom could not state a claim for
violation of his right of access to the courts because he failed
to allege Hawthorne’s conduct caused him actual injury.
Second, it held that Nordstrom failed to state a claim for
violation of his right to counsel; the court stated that he did
not demonstrate that the ADC had a policy of reading legal
mail or show how the “one-time occurrence” of Hawthorne
reading the confidential letter “impacted the attorney-client
relationship.” The court also ruled that a policy permitting
staff to scan legal mail is permissible. Third and finally, the
district court held that Nordstrom had no cognizable free
speech claim because “the reading of an inmate’s legal mail,
in the inmate’s presence, to check for the presence of
contraband or illegal activity is the type of regulation allowed
for the purpose of maintaining institutional security.”

                          DISCUSSION

I. Legal Standards

    We have jurisdiction pursuant to 

28 U.S.C. § 1291

, and
we review de novo a district court’s dismissal of a complaint
under 28 U.S.C. § 1915A for failure to state a claim. Resnick
v. Hayes, 

213 F.3d 443, 447

 (9th Cir. 2000).

    Dismissal for failure to state a claim under § 1915A
“incorporates the familiar standard applied in the context of
failure to state a claim under Federal Rule of Civil Procedure
12(b)(6).” Wilhelm v. Rotman, 

680 F.3d 1113, 1121

 (9th Cir.
2012). To survive § 1915A review, a complaint must


frivolous or malicious suits need not bear the expense of responding.”
Wheeler v. Wexford Health Sources, Inc., 

689 F.3d 680, 681

 (7th Cir.
2012).
                    NORDSTROM V. RYAN                         9

“contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.” 

Id.

 (quoting
Ashcroft v. Iqbal, 

556 U.S. 662, 678

 (2009) (internal
quotation marks omitted)). Pro se complaints are construed
“liberally” and may only be dismissed “if it appears beyond
doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief.” 

Id.

 (quoting
Silva, 

658 F.3d at 1101

); see Schucker v. Rockwood, 

846 F.2d 1202

, 1203–04 (9th Cir. 1988) (“Dismissal of a pro se
complaint without leave to amend is proper only if it is
absolutely clear that the deficiencies of the complaint could
not be cured by amendment.” (internal quotation marks
omitted)).

II. Constitutional Framework

    Federal courts have traditionally “adopted a broad hands-
off attitude toward problems of prison administration”
because “courts are ill equipped to deal with the increasingly
urgent problems of prison administration and reform.”
Procunier v. Martinez, 

416 U.S. 396

, 404–05 (1974),
overruled in part by Thornburgh v. Abbott, 

490 U.S. 401

(1989). Nonetheless, “[p]rison walls do not form a barrier
separating prison inmates from the protections of the
Constitution,” Turner v. Safley, 

482 U.S. 78, 84

 (1987), and
a court will intervene “[w]hen a prison regulation or practice
offends a fundamental constitutional guarantee,” Martinez,

416 U.S. at 405

.

    The Supreme Court spoke on the issue of the inspection
of prisoner legal mail in Wolff v. McDonnell, 

418 U.S. 539

(1974). In Wolff, the Supreme Court upheld a Nebraska
prison regulation that allowed prison officials to open and
inspect – but not read – legal mail sent to an inmate:
10                      NORDSTROM V. RYAN

         As to the ability to open the mail in the
         presence of inmates, this could in no way
         constitute censorship, since the mail would
         not be read. Neither could it chill such
         communications, since the inmate’s presence
         insures that prison officials will not read the
         mail. The possibility that contraband will be
         enclosed in letters, even those from apparent
         attorneys, surely warrants prison officials’
         opening the letters . . . . [W]e think that
         petitioners, by acceding to a rule whereby the
         inmate is present when mail from attorneys is
         inspected, have done all, and perhaps even
         more, than the Constitution requires.

Id. at 577

 (emphasis added).

    Following Wolff, courts have analyzed claims regarding
the confidentiality of attorney-inmate communications under
various constitutional principles, including the First
Amendment right to freedom of speech and the Fourteenth
Amendment rights to due process and access to the courts, or
some combination of these rights.2 Courts also have



  2
    See, e.g., Guajardo-Palma v. Martinson, 

622 F.3d 801, 802

 (7th Cir.
2010) (declining to analyze prisoner legal mail claim under the First
Amendment and instead basing “the concern with destroying that
[attorney-client] confidentiality on the right of access to the courts” or “on
the due process right to a fair hearing”); Al-Amin v. Smith, 

511 F.3d 1317

,
1334–35 (11th Cir. 2008) (concluding that a prison policy of opening a
prisoner’s legal mail outside of his presence violated his “First
Amendment free speech right to communicate with his attorneys by
mail”); Jones v. Brown, 

461 F.3d 353, 359

 (3d Cir. 2006) (“A state pattern
and practice, or . . . explicit policy, of opening legal mail outside the
                       NORDSTROM V. RYAN                               11

recognized that “while most cases brought by prisoners are
civil . . . [a] practice of prison officials reading mail between
a prisoner and his lawyer in a criminal case would raise
serious issues under the Sixth Amendment . . . which
guarantees a right to counsel in criminal cases.” Guajardo-
Palma v. Martinson, 

622 F.3d 801, 803

 (7th Cir. 2010); see
also Merriweather v. Zamora, 

569 F.3d 307, 317

 (6th Cir.
2009) (“[O]pening properly marked legal mail alone . . .
implicates both the First and Sixth Amendments because of
the potential for a ‘chilling effect.’”); Altizer v. Deeds, 

191 F.3d 540

, 549 n.14 (4th Cir. 1999) (“Inspecting an inmate’s
legal mail may implicate the inmate’s Sixth Amendment right
to communicate freely with his attorney in a criminal case.”).

    Nordstrom alleges that the defendants’ conduct interfered
with attorney-client communications related to the appeal of
his murder conviction and death sentence. His claims
therefore fall squarely within the scope of the Sixth
Amendment right to counsel, and we do not consider whether
he also states claims for infringement of his rights to free
speech and/or access to the courts.

III.     Sixth Amendment Right to Counsel

    The Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence.” U.S. Const. amend.
VI; see also Gideon v. Wainwright, 

372 U.S. 335

, 342–43
(1963) (holding that Sixth Amendment right to counsel
extends to state court proceedings through the Fourteenth
Amendment). The right to counsel “is a fundamental


presence of the addressee inmate . . . impinges upon the inmate’s right to
freedom of speech.”).
12                  NORDSTROM V. RYAN

component of our criminal justice system,” and “[l]awyers in
criminal cases are necessities, not luxuries.” United States v.
Cronic, 

466 U.S. 648, 653

 (1984) (internal quotation marks
omitted). “When the government deliberately interferes with
the confidential relationship between a criminal defendant
and defense counsel, that interference violates the Sixth
Amendment right to counsel if it substantially prejudices the
criminal defendant.” Williams v. Woodford, 

384 F.3d 567

,
584–85 (9th Cir. 2004); see United States v. Irwin, 

612 F.2d 1182

, 1186–87 (9th Cir. 1980).

    A criminal defendant’s ability to communicate candidly
and confidentially with his lawyer is essential to his defense.
In American criminal law, the right to privately confer with
counsel is nearly sacrosanct. See Adams v. Carlson, 

488 F.2d 619, 631

 (7th Cir. 1973). It is obvious to us that a policy or
practice permitting prison officials to not just inspect or scan,
but to read an inmate’s letters to his counsel is highly likely
to inhibit the sort of candid communications that the right to
counsel and the attorney-client privilege are meant to protect.
As one court put it, “[i]t is well established that an accused
does not enjoy the effective aid of counsel if he is denied the
right of private consultation with him.” Coplon v. United
States, 

191 F.2d 749, 757

 (D.C. Cir. 1951); see Mastrian v.
McManus, 

554 F.2d 813, 821

 (8th Cir. 1977). It takes no
stretch of imagination to see how an inmate would be
reluctant to confide in his lawyer about the facts of the crime,
perhaps other crimes, possible plea bargains, and the intimate
details of his own life and his family members’ lives, if he
knows that a guard is going to be privy to them, too.

    Other courts have come to similar conclusions. See, e.g.,
Lemon v. Dugger, 

931 F.2d 1465, 1468

 (11th Cir. 1991)
(recognizing inmate’s “constitutional right not to have his
                    NORDSTROM V. RYAN                         13

mail read” and holding that inmate stated a claim where a
prison official read a letter from his death penalty appellate
attorney in his presence); Al-Amin, 

511 F.3d at 1323

 n.13
(“Nor do defendants deny that the law is well-established that
Al-Amin has a constitutional right that precludes them from
reading Al-Amin’s attorney mail.”); see also, e.g., Peterson
v. Arpaio, No. CV04-2276-PHX-SMM-LOA, 

2006 WL 3736060

, at *4 (D. Ariz. Nov. 21, 2006) (“Prisoners have a
constitutional right to have their legal mail delivered to them
uncensored and unread.”).

    The defendants contend that they are permitted to read
Nordstrom’s legal mail as long as they do so in his presence.
But they fail to explain how that practice ameliorates the
chilling effect likely to result from an inmate’s knowledge
that every word he writes to his lawyer may be intercepted by
prison guards and possibly used against him. Rather, the
practice of requiring an inmate to be present when his legal
mail is opened is a measure designed to prevent officials from
reading the mail in the first place. See Wolff, 

418 U.S. at 577

(opening attorney mail in the presence of the inmate could not
“chill such communications, since the inmate’s presence
insures that prison officials will not read the mail”); see also,
e.g., Gardner v. Howard, 

109 F.3d 427

, 431 (8th Cir. 1997)
(“The policy that incoming confidential legal mail should be
opened in inmates’ presence . . . serves the prophylactic
purpose of assuring them that confidential attorney-client
mail has not been improperly read in the guise of searching
for contraband.”).

    We emphasize that nothing prevents the ADC from
inspecting an inmate’s outgoing mail, in his presence, to
make sure that it does not contain, for example, a map of the
prison yard, the time of guards’ shift changes, escape plans,
14                      NORDSTROM V. RYAN

or contraband. What the Constitution does not permit,
however, is reading outgoing attorney-client correspondence.
And by the way, neither does the ADC’s own regulation.
Order 902.11.1.4.2.2 specifically states that “[a]ll outgoing
letters to an inmate’s attorney . . . shall not be read or
censored but shall be inspected for contraband and sealed in
the presence of the inmate.”3 While a prison regulation does
not equate to a constitutional right, it just goes to show that
even the ADC understands that legal mail should not be
messed with unnecessarily.

    Were Nordstrom challenging a conviction following an
improper intrusion into the attorney-client relationship, we
would examine whether the violation caused prejudice
requiring the reversal of the conviction. See Weatherford v.
Bursey, 

429 U.S. 545, 558

 (1977); Irwin, 612 F.2d at
1185–89. Nordstrom’s case, however, is a civil rights lawsuit
aimed at enjoining the continuation of an unconstitutional
practice. The harm Nordstrom alleges is not that tainted
evidence was used against him but that his right to privately
confer with counsel has been chilled. This is a plausible
consequence of the intentional reading of his confidential
legal mail. Cf. Weatherford, 

429 U.S. at 554

 n.4 (“One threat
to the effective assistance of counsel posed by government
interception of attorney-client communications lies in the
inhibition of free exchanges between defendant and counsel
because of the fear of being overheard.”).



 3
   The regulation further states that, in contrast to letters, other “outgoing
legal documents . . . such as pleadings, briefs and motions,” may be read
“to the extent necessary to establish the absence of contraband.” This
portion of 902.11.1.4.2.2 is not implicated because Nordstrom specifically
alleges that Hawthorne read his confidential legal letter.
                    NORDSTROM V. RYAN                        15

    In sum, Nordstrom’s 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
state a Sixth Amendment claim.

IV.    Injunctive Relief

    Nordstrom’s allegations also support a claim for
injunctive relief. A plaintiff seeking prospective injunctive
relief “must demonstrate ‘that he is realistically threatened by
a repetition of [the violation].’” Armstrong v. Davis, 

275 F.3d 849

, 860–61 (9th Cir. 2001) (alteration in original) (quoting
City of L.A. v. Lyons, 

461 U.S. 95, 109

 (1983)), abrogated on
other grounds by Johnson v. California, 

543 U.S. 499

,
504–05 (2005). A threat of repetition can be shown “at least
two ways.” Id. at 861. “First, a plaintiff may show that the
defendant had, at the time of the injury, a written policy, and
that the injury ‘stems from’ that policy.” Id. “Second, the
plaintiff may demonstrate that the harm is part of a ‘pattern
of officially sanctioned . . . behavior, violative of the
plaintiffs’ [federal] rights.’” Id. (alterations in original)
(quoting LaDuke v. Nelson, 

762 F.2d 1318, 1324

 (9th Cir.
1985)).

    Nordstrom alleges that the ADC has a policy and practice
of reading his outgoing legal mail. He supports this
allegation with the grievance appeal response from Director
Ryan that states that “[s]taff 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.”
This statement, signed by Director Ryan himself, supports
Nordstrom’s allegations that Hawthorne’s conduct was not
simply a one-time mistake or confusion over the contours of
the ADC policy.         Inasmuch as Nordstrom remains
16                  NORDSTROM V. RYAN

incarcerated and alleges the ADC Director has personally
informed him that prison officials are permitted to read his
legal mail, he has adequately alleged the threatened repetition
of the alleged Sixth Amendment violation.

                      CONCLUSION

    We REVERSE the district court’s dismissal for failure to
state a claim and REMAND for further proceedings.



BYBEE, Circuit Judge, dissenting:

    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.
                   NORDSTROM V. RYAN                       17

    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.

                               I

    Nordstrom’s claims arise out of ADC’s alleged
mishandling of one legal letter. ADC maintains a written
policy regarding the processing of outgoing legal mail. It
provides, in relevant part, as follows:

       1.1 Inmates shall identify outgoing legal mail
       by writing “Legal Mail” on the lower left-
       hand corner of the envelope. . . .

       ...

       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. All outgoing legal
       documents to an inmate’s attorney or to a
       judge or court (other than letters to an
       inmate’s attorney or to a judge or court, such
       as pleadings, briefs and motions) shall not be
       censored, but staff are not prohibited from
       reading such documents to the extent
       necessary to establish the absence of
       contraband.
18                  NORDSTROM V. RYAN

Department Order 902:11 (emphasis added). ADC’s policy
thus distinguishes between outgoing legal letters, which
“shall not be read or censored but shall be inspected for
contraband,” and outgoing legal documents, which “shall not
be censored” but may be read.

     Nordstrom claims that ADC has a pattern and practice of
reading his legal letters in violation of its own written policy,
which forbids the reading of such letters. Specifically,
Nordstrom alleges that on May 2, 2011, he wrote a letter to
Sharmila Roy, his court-appointed attorney. The letter was
marked “legal mail” and was addressed to Roy. When
Nordstrom notified Officer Hawthorne that he had legal mail
to send, Officer Hawthorne allegedly “removed the two page
letter and proceeded to read the content of [the]
correspondence.” Nordstrom asked Officer Hawthorne to stop
reading the letter approximately fifteen seconds later. Officer
Hawthorne refused, explaining that he “[was] authorized to
search legal mail for contraband as well as scan the content
of the material to ensure it [was] of legal subject matter.”
Nordstrom again protested. Officer Hawthorne told
Nordstrom that he “was not in a position to tell him how to do
his job” and “shoved [the] letter” in Nordstrom’s door.
Nordstrom then sealed the envelope and placed it in the door.
The letter was gone the next day.

    Nordstrom initiated the four-step grievance process. At
the fourth and final step of the grievance process, Nordstrom
appealed to ADC Director Ryan. After quoting ADC’s legal
mail policy, Ryan stated 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.” In this statement, Ryan referenced only
“the mail,” blurring the important distinction between legal
                    NORDSTROM V. RYAN                        19

letters and legal documents under ADC’s written policy.
Ryan thus concluded that no action was warranted in
response to Nordstrom’s grievance.

    Nordstrom filed a civil rights complaint in federal district
court. In the complaint, Nordstrom alleges that ADC violated
his First, Sixth, and Fourteenth Amendment rights. The
district court dismissed the complaint at the screening stage
under the Prison Litigation Reform Act (PLRA), 28 U.S.C.
§ 1915A, for failure to state a claim. The district court
carefully outlined the deficiencies in the complaint,
explaining that the First Amendment does not prohibit an
officer from reading legal mail in an inmate’s presence with
an eye to determining whether it advances illegal conduct,
that Nordstrom had failed to allege the actual injury necessary
for an access-to-court claim, and that he had failed to allege
the requisite prejudice to state a right-to-counsel claim. The
district court granted Nordstrom leave to file an amended
complaint to cure his deficient allegations.

    Nordstrom then filed his first amended complaint, again
claiming that ADC violated his First, Sixth, and Fourteenth
Amendment Rights. The first amended complaint alleges that
ADC’s practice of reading Nordstrom’s outgoing legal letters
“has forced him to cease conveying critically sensitive
information concerning necessary aspects of his case for
appellate adjudication to his attorney.” He provides no hint as
to what type of information this might be. Nordstrom
acknowledges, however, that he has not yet suffered prejudice
from ADC’s allegedly unconstitutional practice, stating that
“[he] is incapable of prophesying . . . the prejudicial effects
of [ADC’s] actions . . . in the adjudication of [his] appeal.”
Noting Nordstrom’s failure to cure the deficiencies identified
20                  NORDSTROM V. RYAN

in the original complaint, the district court dismissed the first
amended complaint with prejudice for failure to state a claim.

                                II

    The opening and inspecting of inmates’ mail raises
important concerns under the First, Sixth, and Fourteenth
Amendments. See Thornburgh v. Abbott, 

490 U.S. 401

(1989) (prisoner receipt of outside publications); Turner v.
Safley, 

482 U.S. 78

 (1987) (inmate-to-inmate
correspondence); Wolff v. McDonnell, 

418 U.S. 539

 (1974)
(incoming mail to inmates from attorneys); Procunier v.
Martinez, 

416 U.S. 396

 (1974) (incoming and outgoing
prisoner non-legal mail), overruled in part by Thornburgh,

490 U.S. 401

. Although an inmate’s “rights may be
diminished by the needs and exigencies of the institutional
environment, a prisoner is not wholly stripped of
constitutional protections.” Wolff, 

418 U.S. at 555

. After
Turner, “when a prison regulation impinges on inmates’
constitutional rights, the regulation is valid if it is reasonably
related to legitimate penological interests.” Turner, 

482 U.S. at 89

.

    Of particular concern is “the extent to which prison
authorities can open and inspect incoming mail from
attorneys to inmates,” Wolff, 

418 U.S. at 574

, and similar
“outgoing correspondence,” Abbott, 

490 U.S. at 413

.
Although “[t]he implications of outgoing correspondence for
prison security are of a categorically lesser magnitude than
the implications of incoming materials,” 

id.,

        legitimate governmental interest in the order
        and security of penal institutions justifies the
        imposition of certain restraints on inmate
                   NORDSTROM V. RYAN                        21

       correspondence. Perhaps the most obvious
       example of justifiable censorship of prisoner
       mail would be refusal to send or deliver letters
       concerning escape[] plans or containing other
       information concerning proposed criminal
       activity, whether within or without the prison.

Martinez, 416 U.S. at 412–13.

    My disagreement with the majority begins with its
reading of Wolff v. McDonnell. There, the Supreme Court
granted review to consider a Nebraska prison regulation,
which provided that “[a]ll incoming and outgoing mail will
be read and inspected,” without exception for legal letters.
Wolff, 

418 U.S. at 574

. Wolff maintained that this policy
violated his First, Sixth, and Fourteenth Amendment rights.

Id. at 575

. Before the Supreme Court decided the case,
however, Nebraska prison officials altered their position,
conceding that they could not read legal letters. Accordingly,
the Supreme Court did not consider Nebraska’s written
regulation. Instead, prison officials contended that they could
open legal letters as long as they did so in the inmate’s
presence. As the Supreme Court put it, “[t]he narrow issue
thus presented [was] whether letters determined or found to
be from attorneys may be opened by prison authorities in the
presence of the inmate.” 

Id.

 (emphasis added).

    The Court first observed that “the constitutional status of
the rights asserted . . . [was] far from clear.” 

Id.

 Although
“First Amendment rights of correspondents with prisoners
may protect against the censoring of inmate mail, when not
necessary to protect legitimate governmental interests, [the
Supreme] Court ha[d] not yet recognized First Amendment
22                    NORDSTROM V. RYAN

rights of prisoners in this context.”1 

Id.

 at 575–76 (emphasis
added) (citations omitted). And, in any event, “freedom from
censorship is not equivalent to freedom from inspection or
perusal.” 

Id. at 576

. The Court expressed similar skepticism
regarding Wolff’s Sixth and Fourteenth Amendment claims.

Id.

    In the end, the Court concluded that it did not need to
decide “which, if any, of the asserted rights [were] operative”
in Wolff’s case. 

Id.

 The Court simply “assum[ed] some
constitutional right [was] implicated,” 

id.,

 and found the
prison’s policy constitutionally permissible:

         As to the ability to open the mail in the
         presence of inmates, this could in no way
         constitute censorship, since the mail would
         not be read. Neither could it chill such
         communications, since the inmate’s presence
         insures that prison officials will not read the
         mail. The possibility that contraband will be
         enclosed in letters, even those from apparent
         attorneys, surely warrants prison officials’
         opening the letters. . . . [W]e think that [prison
         officials], by acceding to a rule whereby the
         inmate is present when mail from attorneys is
         inspected, have done all, and perhaps even
         more, than the Constitution requires.

Id. at 577

 (emphasis added).




  1
    Forty years have passed since Wolff, and the Supreme Court still has
not recognized this First Amendment right.
                    NORDSTROM V. RYAN                        23

    According to the majority here, “[w]hat prison officials
don’t have the right to do is read a confidential letter from an
inmate to his lawyer.” Maj. Op. at 5. But Wolff doesn’t say
that. The majority makes such a broad statement in part
because it reads Wolff’s holding—that prison officials may
open legal letters in an inmate’s presence—as “a measure
designed to prevent officials from reading the mail in the first
place.” Id. at 13. Others have taken this position before.
Gardner v. Howard, 

109 F.3d 427

, 431 (8th Cir. 1997) (“The
policy that incoming confidential legal mail should be opened
in inmates’ presence . . . serves the prophylactic purpose of
assuring them that confidential attorney-client mail has not
been improperly read in the guise of searching for
contraband.”); see also Stanley v. Vining, 

602 F.3d 767, 773

(6th Cir. 2010) (Cole, J., concurring in part and dissenting in
part) (“[T]he Wolff Court specifically recognized that the
rationale behind prohibiting prison officials from opening
legal mail outside the recipient prisoner’s presence was to
deter the officials from reading such mail.”). But I believe
they, like the majority, are in error.

    The touchstone of Wolff’s analysis is censorship and the
chilling of legal communications, not reading. See Wolff, 

418 U.S. at 575

 (noting that “First Amendment rights of
correspondents with prisoners may protect against the
censoring of inmate mail” but that “freedom from censorship
is not equivalent to freedom from inspection or perusal”); 

id. at 577

 (“As to the ability to open the mail in the presence of
inmates, this could in no way constitute censorship, since the
mail would not be read. Neither could it chill such
24                     NORDSTROM V. RYAN

communications, since the inmate’s presence insures that
prison officials will not read the mail.”).2

    Furthermore, the Supreme Court did not equate reading
with chilling or censoring legal communications. Rather, the
Court reasoned that if prison officials were no longer reading
legal letters—Nebraska’s mid-course change in strategy—
there could be neither censorship nor chilling of legal
communications. This does not mean that if prison officials
do read legal letters, it follows that there must be censorship
or the chilling of legal communications, as the majority
suggests. Indeed, the Supreme Court acknowledged this fact
when it emphasized that “freedom from censorship is not
equivalent to freedom from inspection or perusal,” 

id. at 576

,
and suggested that Nebraska had “done all, and perhaps even
more, than the Constitution requires,” 

id. at 577

 (emphases
added). Thus, under Wolff, reading is a necessary, but not
sufficient, condition for censorship and the chilling of legal
communications. By disregarding the logical relationship
between these concepts, the majority commits the fallacy of
denying the antecedent and arrives at a conclusion that is at
odds with Wolff itself, which recognized that “perusal” of
legal letters is permissible, at least under certain
circumstances.

    In the majority’s view, the “reading” of legal letters is
categorically impermissible, Maj. Op. at 5, but the
“inspecting” of legal letters is fair game, 

id.

 at 13–14. In fact,
the majority asserts that “nothing prevents the ADC from


  2
   The Court’s focus on censorship of the mail is quite understandable.
Just two months earlier, the Court had decided Procunier v. Martinez,
which dealt with “testing the constitutionality of prisoner mail censorship
regulations.” 

416 U.S. at 407

.
                   NORDSTROM V. RYAN                        25

inspecting an inmate’s outgoing mail, in his presence, to
make sure that it does not contain, for example, a map of the
prison yard, the time of guards’ shift changes, escape plans,
or contraband.” 

Id.

 If there is no overlap between reading and
inspecting, however, how could a prison guard possibly
inspect a legal letter for escape plans without reading any of
its content? He couldn’t, of course, because “inspecting”
implies some measure of reading in this context. See
Webster’s Third New International Dictionary 1170 (1986)
(defining “inspect” as “to view closely and critically” and to
“examine with care”). Inspecting things, such as meat or tires,
requires a different set of criteria or data points than
inspecting written material. Unless we expect prison officials
to look only for illegal watermarks, unauthorized use of
copyrighted fonts, or poisonous ink, inspecting officials are
going to have to read for comprehension. If they are to be
able to interdict “letters concerning escape[] plans or
containing other information concerning proposed criminal
activity,” including “encoded messages,” we will have to
tolerate some reading of the mails. Martinez, 

416 U.S. at 413

.

    Reading is the process by which one examines and grasps
the meaning of printed characters, words, or sentences. See
id. at 1889 (defining “read” as “to look at or otherwise scan
(as letters or other symbols representing words or sentences)
with mental formulations of the words or sentences
represented”). The verb “to read” has many synonyms,
including “to peruse,” the very action that the Supreme Court
deemed permissible in Wolff. See Wolff, 

418 U.S. at 576

; see
also Webster’s Third New International Dictionary 1688
(defining “peruse” as “to read through or read over with
some attention and typically for the purpose of discovering or
noting one or more specific points” (emphasis added)). We
cannot draw a constitutional distinction between “reading”
26                  NORDSTROM V. RYAN

and “perusing.” Although, in ordinary conversation, we may
indicate our quick review or casual reading of material when
we say we “perused” it, that word more often than not
excuses our lack of attention or interest in the material. Prison
officials looking for escape plans, criminal activity, or coded
messages, cannot be so inattentive.

     Obviously, there are levels of reading, and a prison guard
need not parse each word of a legal letter the way he would
dissect his favorite novel or the way we would scrutinize a
dense statute. But nothing in the Supreme Court’s cases or in
our precedent prevents a prison guard from reading a legal
letter to the extent necessary to detect illegal conduct. As the
Supreme Court has recognized, such limited reading—or
inspecting or perusing or whatever else you want to call
it—does not amount to censorship or the chilling of legal
communications. Wolff, 

418 U.S. at 576

. Drawing
constitutional lines between reading written materials, on the
one hand, and perusing or inspecting them, on the other, is a
fruitless task.

    In my view, some reading of legal letters is permissible,
absent censorship and the chilling of legal communications.
See Stanley, 

602 F.3d at 770

 (“Although [an inmate] has a
First Amendment right to be free from unreasonable mail
censorship, he has no First Amendment right that prevents a
guard from opening his mail in his presence and reading it
with an eye to determining if illegal conduct is afoot.”);
Altizer v. Deeds, 

191 F.3d 540, 549

 (4th Cir. 1999)
(“[A]lthough an inmate’s First Amendment rights may be
violated when his outgoing mail is censored, his First
Amendment rights are not violated when his outgoing mail is
simply opened and inspected for, among other things,
contraband.” (footnote omitted)). This view is consistent with
                        NORDSTROM V. RYAN                               27

the traditional “hands-off attitude” that federal courts have
adopted toward problems of prison administration, Martinez,

416 U.S. at 404

, while simultaneously “tak[ing] cognizance
of the valid constitutional claims of prison inmates,” Turner,

482 U.S. at 84

. “[T]he prison employee who opens the letter
will have to glance at the content to verify its bona fides. . . .
The approach sketched in Wolff to lawyer-prisoner mail may
not be ideal, but it is the best that has been suggested, and
that’s good enough.” Guajardo-Palma v. Martinson, 

622 F.3d 801, 805

 (7th Cir. 2010).

                                    III

    In the years following Wolff, the lower courts have
attempted to refine the constitutional analysis of prisoners’
mail rights. The courts have primarily examined three
constitutional rights in cases arising out of the reading of
legal letters: the First Amendment right of speech,3 the Sixth




   3
      See, e.g., Stanley, 

602 F.3d at 770

 (“[An inmate] has no First
Amendment right that prevents a guard from opening his mail in his
presence and reading it with an eye to determining if illegal conduct is
afoot.”); Al-Amin v. Smith, 

511 F.3d 1317

, 1333–34 (11th Cir. 2008)
(holding that a pattern and practice of opening, but not reading, legal mail
outside an inmate’s presence impinges the First Amendment); Jones v.
Brown, 

461 F.3d 353, 359

 (3d Cir. 2006) (holding that opening, but not
reading, of incoming legal mail outside an inmate’s presence violates the
right of speech); Altizer, 

191 F.3d at 549

 (“[A]lthough an inmate’s First
Amendment rights may be violated when his outgoing mail is censored,
his First Amendment rights are not violated when his outgoing mail is
simply opened and inspected for, among other things, contraband.”);
Brewer v. Wilkinson, 

3 F.3d 816, 825

 (5th Cir. 1993) (holding that
opening and inspecting incoming legal mail outside an inmate’s presence
does not violate the First Amendment).
28                      NORDSTROM V. RYAN

Amendment right to counsel,4 and the Fourteenth
Amendment right of access to courts.5 Because this appeal
involves a legal letter in a criminal case, I agree with the
majority that it should be analyzed as a right-to-counsel
claim. Maj. Op. at 11. But unlike the majority, I do not
believe that Nordstrom has stated such a claim.

    Neither Nordstrom nor the majority can point to any case
in which an appellate court has found a violation of the right
to counsel on analogous facts.6 As a result, first principles


     4
    See, e.g., Guajardo-Palma, 

622 F.3d at 803

 (“A practice of prison
officials reading mail between a prisoner and his lawyer in a criminal case
would raise serious issues under the Sixth Amendment.”); Merriweather
v. Zamora, 

569 F.3d 307, 317

 (6th Cir. 2009) (“[O]pening properly
marked legal mail alone, without doing more, implicates both the First and
Sixth Amendments because of the potential for a chilling effect.” (internal
quotation marks omitted)); Altizer, 

191 F.3d at 549

 n.14 (“Inspecting an
inmate’s legal mail may implicate the inmate’s Sixth Amendment right to
communicate freely with his attorney in a criminal case.”).
 5
   See, e.g., Guajardo-Palma, 

622 F.3d at 802, 805

 (rejecting the right-of-
speech analysis in favor of an access-to-courts analysis and finding no
violation absent prejudice); Al-Amin, 

511 F.3d at 1333

 (finding no access-
to-courts violation absent actual injury); Brewer, 

3 F.3d at 825

 (holding
that opening and inspecting incoming legal mail outside an inmate’s
presence does not violate the right of access to courts).
         6
      The majority asserts that “[o]ther courts have come to similar
conclusions” in their right-to-counsel analyses. Maj. Op. at 12. But the
two cases upon which the majority relies, Lemon v. Dugger, 

931 F.2d 1465

 (11th Cir. 1991), and Al-Amin v. Smith, reached no such conclusion,
at least not under the Sixth Amendment. In Lemon, the Eleventh Circuit
appears to have recognized that an inmate has a constitutional right not to
have his legal letters read, 931 F.3d at 1468, but the court never relied on
any specific constitutional right, much less the Sixth Amendment right to
counsel. Likewise, in Al-Amin, the prison officials conceded that they
could not read legal letters, and the court “address[ed] only Al Amin’s
                       NORDSTROM V. RYAN                              29

must guide our analysis. In Weatherford v. Bursey, 

429 U.S. 545

 (1977), a criminal defendant claimed that the use of an
undercover agent violated his right to counsel at trial. The
undercover agent had met with the defendant and his attorney
on two occasions but had not subsequently revealed anything
said or done at the meetings. 

Id.

 at 547–48, 555. Rejecting
the criminal defendant’s claim, the Supreme Court held that
“unless [the undercover agent] communicated the substance
of the . . . conversations and thereby created at least a realistic
possibility of injury to [the criminal defendant] or benefit to
the State, there can be no Sixth Amendment violation.” 

Id. at 558

.

    We relied on Weatherford in rejecting an inmate’s Sixth
Amendment claim in Williams v. Woodford, 

384 F.3d 567

(9th Cir. 2004). There, a habeas petitioner alleged a violation
of his right to counsel based on jailhouse monitoring of his
conversations with visitors and the interception of a document
revealing the appointment of a psychiatrist as a defense
expert. 

Id. at 584

. We held that “[w]hen the government
deliberately interferes with the confidential relationship
between a criminal defendant and defense counsel, that
interference violates the Sixth Amendment right to counsel if
it substantially prejudices the criminal defendant.” 

Id.

 at
584–85 (emphasis added). We then proceeded to define
“substantial prejudice” in this context: “Substantial prejudice
results from the introduction of evidence gained through the
interference against the defendant at trial, from the


‘mail opening’ claim.” 

511 F.3d at 1323

 n.13. The court found that a
pattern and practice of opening, but not reading, legal mail outside an
inmate’s presence impinges First and Fourteenth Amendment rights. 

Id.

at 1332–35. The court did not mention or rely upon the right to counsel in
its decision.
30                  NORDSTROM V. RYAN

prosecution’s use of confidential information pertaining to
defense plans and strategy, and from other actions designed
to give the prosecution an unfair advantage at trial.” Id. at
585. In other words, we held that a criminal defendant must
show actual injury to state a claim based on an alleged
violation of his right to counsel. Cf. Gomez v. Vernon, 

255 F.3d 1118

 (9th Cir. 2001) (upholding sanctions where prison
employees copied inmate correspondence with their attorneys
and provided it to counsel for the state).

    The majority states that “[w]ere Nordstrom challenging
a conviction following an improper intrusion into the
attorney-client relationship, we would examine whether the
violation caused prejudice requiring the reversal of the
conviction.” Maj. Op. at 14. But, the majority continues,
“[t]he harm Nordstrom alleges is not that tainted evidence
was used against him but that his right to privately confer
with counsel has been chilled.” 

Id.

 The majority does not tell
us in any concrete terms what type of communication
Nordstrom has kept to himself, though it assures us that such
chilling is “highly likely” and that “[i]t takes no stretch of
imagination” to see how some inmates might be reluctant to
communicate the facts of their crimes or their personal
histories if they knew that a prison official might be privy to
that information as well. Id. at 12.

    There are three problems with the majority’s prejudice
analysis. First, the majority disregards the actual allegations
of the first amended complaint. Nordstrom does not allege
that he was reluctant to disclose the details of his life to his
attorney. Nor does he allege that he felt unable to discuss the
crime. Nordstrom alleges that ADC “has forced him to cease
conveying critically sensitive information concerning
necessary aspects of his case for appellate jurisdiction to his
                    NORDSTROM V. RYAN                          31

attorney.” Although these are good, legal words, they do not
provide any indication of the basis for Nordstrom’s claim.
Nordstrom does not specify, for example, the type of
information he was unable to convey—e.g., information
regarding his personal background—or the aspect of his case
to which that information pertained—e.g., sentencing. Of
course, Nordstrom need not detail the content of that
information in his complaint, but he must allege some factual
support to enable the court to evaluate the substantiality of
the prejudice he suffered. It is telling that when Nordstrom
filed his first amended complaint on February 10, 2012, more
than ten months after Officer Hawthorne allegedly read the
letter, Nordstrom still could not articulate any actual injury.
Instead, Nordstrom wrote that he was “incapable of
prophesying . . . the prejudicial effects of [ADC’s] actions . . .
in the adjudication of [his] appeal.” Such vague allegations do
not suffice, especially when the district court permitted
Nordstrom to amend his complaint to cure this very defect.

    Second, rather than evaluating the specific effect that the
reading of this letter had on Nordstrom, the majority
hypothesizes about the effect that reading legal letters might
have on inmates in general. For example, the majority tells us
“[i]t is obvious” that a policy of reading legal letters “is
highly likely to inhibit the sort of candid communications that
the right to counsel and the attorney-client privilege are
meant to protect.” Maj. Op. at 12. The need for this type of
speculation is hardly surprising because Nordstrom himself
has not alleged any actual injury. But by engaging in such
probabilistic reasoning, the majority effectively lowers the
standard of prejudice for right-to-counsel claims from
“substantial prejudice” to “imaginable prejudice.” As a result,
the majority’s reasoning is plainly inconsistent with our Sixth
Amendment precedent. See Williams, 384 F.3d at 584–85.
32                       NORDSTROM V. RYAN

    Third, the majority ignores the fact that Nordstrom alleges
only a one-time incident despite having now been
incarcerated for seventeen years. As the Seventh Circuit has
recognized, the chilling effect of an isolated interference with
legal mail “is likely to be nil.” Guajardo-Palma, 

622 F.3d at 805

. This is true in part because an inmate generally has
alternate means of communicating with his attorney. For
example, ADC regulations permit inmates to engage in
unmonitored and unrecorded legal phone calls. See
Department Order 902.12. Such alternate means of
communication may be imperfect, but they minimize the risk
that criminal defendants will be unable to transmit necessary
information to their attorneys. And although the reading of a
legal letter on one occasion may bother or offend an inmate,
this is not enough to show a right-to-counsel violation. See
Stanley, 

602 F.3d at 770

 (“In order to state [a right-to-
counsel] claim there must be something more than an
allegation that a guard ‘read’ [an inmate’s] ‘legal mail’ in his
presence and that he was offended or believed this act to be
a violation of a state prison regulation.”). He must allege
chilling sufficient “to give the prosecution an unfair
advantage at trial.” Williams, 

384 F.3d 585

. Nordstrom has
failed to do so here.7


  7
    The majority finds that the general chilling of legal communications,
without more, may constitute substantial prejudice under Williams. Maj.
Op. at 11–15. I am unconvinced. Admittedly, the Supreme Court in Wolff
discussed the potential chilling effect that the reading of legal letters might
have on legal communications. See 

418 U.S. at 577

. But Wolff’s
discussion of constitutional principles was completely undifferentiated. 

Id.

at 574–77. The Court simply “assum[ed] some constitutional right [was]
implicated,” 

id. at 576

 (emphasis added), including, perhaps, a right under
the First Amendment, where chilling has long been a concern. The
concept of chilling seems ill-suited to the Sixth Amendment context,
where the inmate must show substantial prejudice resulting from
                       NORDSTROM V. RYAN                              33

     Proof of an official policy of reading an inmate’s legal
letters beyond the extent necessary to detect illegal conduct
might be sufficient to show substantial prejudice. See
Guajardo-Palma, 

622 F.3d at 805

. But that is not what
Nordstrom alleges in his amended complaint. Nordstrom
alleges that ADC arbitrarily violated its own written policy.
Thus, Nordstrom’s claim is based on a pattern and practice of
violating his right to counsel, a pattern and practice that
consists entirely of Officer Hawthorne’s conduct on the night
of May 2, 2011.8 This isolated event cannot serve as the
factual basis for a pattern or practice claim. See 

id. at 805

(finding no prejudice where a prison official opened nine
legal letters outside the inmate’s presence). It’s not a pattern
or practice at all. As a result, Nordstrom has failed to state a
right-to-counsel claim, and the district court did not abuse its
discretion by dismissing the first amended complaint with
prejudice. See Okwu v. McKim, 

682 F.3d 841, 844

 (9th Cir.
2012); United States ex rel. Cafasso v. Gen. Dynamics C4
Sys., Inc., 

637 F.3d 1047, 1058

 (9th Cir. 2011) (“The district
court’s discretion to deny leave to amend is particularly broad
where plaintiff has previously amended the complaint.”
(internal quotation marks, citations, and alteration omitted)).




deliberate governmental interference with the confidential relationship
between the inmate and his attorney. Even assuming that chilling of legal
communications is an appropriate measure of substantial prejudice in the
Sixth Amendment context, the inmate would need to show chilling of a
particular kind, i.e., chilling that “give[s] the prosecution an unfair
advantage at trial.” Williams, 

384 F.3d at 585

.
 8
  Although we have an obligation to liberally construe pro se complaints,
Wilhelm v. Rotman, 

680 F.3d 1113, 1121

 (9th Cir. 2012), we cannot
contradict the clear, repeated allegations of the complaint.
34                   NORDSTROM V. RYAN

                               IV

    The majority is correct that prisons are a tough place.
Maj. Op. at 4. And because of the majority’s decision today,
they are about to get a little tougher. Prison officials are
“responsible for maintaining internal order and discipline,” as
well as “securing their institutions against unauthorized
access or escape.” Martinez, 

416 U.S. at 404

. To protect
individuals in and outside the prison, prison officials must be
allowed to read legal letters to the extent necessary to detect
illegal conduct. By preventing reading in this limited sense,
the majority has hamstrung prison officials’ ability to do their
job.

    Moreover, when a prison official crosses the line, the
inmate must show that he—and not some hypothetical
inmate—has suffered substantial prejudice in order to state a
claim under the Sixth Amendment. Nordstrom has not shown
that the reading of this one letter had any impact on his
criminal appeal. I would affirm the judgment of the district
court.

     I respectfully dissent.