Case No. 12 -15738 UNITED STATES COURT OF APPEALS FOR …

Case No. 12-15738

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

SCOTT D. NORDSTROM, Plaintiff-Appellant,

v.

CHARLES L. RYAN, Director of ADOC, et al., Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

PROPOSED BRIEF BY AMICI CURIAE IN SUPPORT OF PLAINTIFF-

APPELLANT AND IN SUPPORT OF REVERSAL

PRISON LAW OFFICE Donald Specter Corene Kendrick 1917 Fifth Street Berkeley, CA 94710-1916 [email protected] [email protected] Telephone: 510-280-2621 Facsimile: 510-280-2704

Attorneys for Amici

Case: 12-15738 11/01/2013 ID: 8847627 DktEntry: 36-2 Page: 1 of 56

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CORPORATE DISCLOSURE STATEMENT

In accordance with Federal Rule of Appellate Procedure 26.1, the Amici

Curiae further described below state that they are nonprofit organizations with no

parent corporations and in which no person or entity owns stock.


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TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT………………………………….. i

TABLE OF CONTENTS …………………………………….……………… …..ii

TABLE OF AUTHORITIES …………………….……………………………… 1

IDENTITY AND INTEREST OF AMICI ……………………………………….2

ARGUMENT ……………………………………………………………………..5

CERTIFICATE OF COMPLIANCE …………………………………………….13

CERTIFICATE OF SERVICE …………………………………………………..14


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TABLE OF AUTHORITIES

CASES PAGE

Guajardo-Palma v. Martinson, 622 F.3d 801 (7th Cir. 2010)………………....11

Jones v. Brown, 461 F.3d 353 (3d Cir. 2006)…………………………………..5

Kensu v. Haigh, 87 F.3d 172 (6th Cir. 1996)………………………………...…4

OTHER AUTHORITIES PAGE

Arizona Department of Corrections, Department Order 902: Inmate Legal Access to the Courts, Section 902.11 ……….………..7, 8–9


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IDENTITY AND INTEREST OF AMICI Amici Curiae, described below, have a direct interest in the issues before

this Court and seek the Court’s leave to file this brief by motion submitted

herewith.1

The American Civil Liberties Union (“ACLU”) is a nationwide, non-

profit, non-partisan organization with over 500,000 members dedicated to the

principles of liberty and equality embodied in the Constitution and this nation’s

civil rights laws. The ACLU of Arizona is its Arizona affiliate. Throughout its 90-

year history, the ACLU has been deeply involved in protecting the rights of

prisoners, and in 1972 created the National Prison Project to further this work. The

ACLU has appeared before this Court in numerous cases involving the rights of

prisoners, both as direct counsel and as amicus curiae.

The Prison Law Office (“PLO”) is a non-profit public interest law firm that

seeks to enforce the Constitution and other laws inside the walls of prisons by

providing free legal services to prisoners, furnishing technical assistance to other

attorneys throughout the country, and educating the public about prison conditions.

One of the primary means by which PLO pursues this goal is by providing

1 Pursuant to Fed. R. App. P. 29(c)(5), the undersigned counsel hereby certifies that no counsel for a party authored this brief in whole or in part, and no such counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. No one other than Amici, or their counsel, made a monetary contribution to fund this brief’s preparation or submission.


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representation in cases that seek to change prisoners’ conditions of confinement.

PLO has appeared before this Court in numerous cases involving the rights of

prisoners, both as direct counsel and as amicus curiae.

The Arizona Center for Disability Law (“ACDL”) is the federally

designated Protection and Advocacy System for the State of Arizona, tasked with

assuring that the human and civil rights of persons with disabilities are protected.

ACDL advocates for the legal rights of persons with disabilities to be free from

abuse, neglect, and discrimination and to have access to those services necessary to

maximize their independence and achieve equality. In this work, ACDL pursues

legal remedies on behalf of persons with disabilities, including prisoners with

disabilities.

Amici have extensive experience representing prisoners’ legal interests and,

necessarily, rely heavily on prison mail systems in carrying out their advocacy.

Relevant to the mail system at the heart of the instant appeal, amici are all

intimately involved in Parsons et al. v. Ryan et al., Case No. 2:12-cv-00601 (D.

Ariz.), an ongoing class action lawsuit against the Arizona Department of

Corrections (“ADC”) in which the ACLU Foundation of Arizona, the ACLU

National Prison Project, and PLO are class counsel, and ACDL is a co-plaintiff.

Parsons involves a class of over 30,000 prisoners housed in ADC facilities, and


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communications with class members must therefore rely on the same ADC legal

mail program that Nordstrom challenges as unconstitutional.

As this brief demonstrates, Amici have, like Nordstrom, encountered

repeated instances in which both top ADC officials and the individuals responsible

for implementing the ADC’s legal mail practices and policies have acted to

seriously interfere with prisoners’ rights to send and receive confidential legal

mail. A constitutionally deficient legal mail system does serious harm to the rights

of prisoners, rights that Amici’s organizations are dedicated to protecting. See

Kensu v. Haigh, 87 F.3d 172, 174 (6th Cir. 1996) (explaining that “[t]he right of a

prisoner to receive materials of a legal nature . . . is a basic right” that the Supreme

Court and others have “recognized and afforded protection”). Moreover, the

specific policies and practices that Nordstrom challenges represent a concrete

threat to ongoing litigation in Parsons because they handicap Amici’s ability to

fulfill their duties in their role as class counsel.


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ARGUMENT

As organizations that frequently represent prisoners, Amici are familiar with

the special challenges in communicating with incarcerated clients. In-person visits

and phone conversations are extremely limited, and electronic mail is nonexistent.

Often the best and only method of communication is through the legal mail system

administered by the institution in which the client is housed. These legal mail

systems are essential to a prisoner’s constitutional rights to free speech and access

to the courts. See Jones v. Brown, 461 F.3d 353, 359 (3d Cir. 2006) (observing

that inadequate protection of an inmate’s right to send and receive legal mail

“interferes with protected communications, strips those protected communications

of their confidentiality, and accordingly impinges upon the inmate’s right to

freedom of speech”).

As class counsel and co-plaintiff in ongoing litigation challenging conditions

in ADC facilities, Amici’s interactions with their clients and with the ADC give

them ample reason to believe that the ADC improperly interferes with prisoners’

ability to send and receive confidential legal mail. These interactions illustrate the

serious and widespread nature of ADC’s shortcomings in providing prisoners

access to legal mail, and support the contention advanced by Nordstrom’s brief that

the legal mail policies and practices in Arizona’s prisons are broken.


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In April 2012, only one month after the Complaint was filed in Parsons,

named plaintiff Dustin Brislan filed a grievance with the ADC reporting that when

mail he had labeled as legal mail and sent to his attorney was returned to him

marked “return to sender – attempted – not known,” the envelope showed clear

evidence of having been opened multiple times outside of his presence and then

taped back closed. Exh. 1 at 1. Incredibly, the ADC’s response made no attempt

to deny the fact that Brislan’s legal mail had been opened outside of his presence.

Id.at 2. The ADC instead boldly asserted, without citing any official policy, that

prison staff were entitled to open and examine any mail returned by the U.S. Postal

Service, even mail labeled as legal mail, to make sure that the prisoner listed in the

return address was really the person who had originally attempted to mail the

letter. Id.

Parsons named plaintiff Joshua Polson also suffered serious violations of his

right to send and receive confidential legal mail. In March of this year, Amici and

their co-counsel reported to the Office of the Attorney General for the State of

Arizona and Counsel for Defendants, that staff at the Lewis prison complex were

improperly opening Polson’s incoming legal mail outside of his presence, and that

Polson’s outgoing legal mail was not being timely delivered. Exh. 2 at 4–5. The

State’s attorney then informed Amici that Polson had begun to refuse legal mail


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and that the refused legal mail was being returned to the party that had mailed it to

him. Id. at 5.

Such a refusal, however, is impossible under the ADC’s own policies, which

provide that prison staff shall “[r]eturn legal correspondence to the sender only if

the addressee is no longer an inmate, releasee or parolee, in which case the sender

shall be advised of this fact.” Arizona Dep’t of Corr., Department Order 902:

Inmate Legal Access to the Courts, Sec. 902.11 (1.7.4). The documentation that

the Attorney General’s Office provided as evidence of Polson’s purported refusals

consisted only of mail transfer logs and an Information Report, all created by

prison staff. Exh. 2 at 12–18. None of the documentation included any signature

or other writing by Polson indicating his desire to refuse legal mail. Once counsel

was able to speak directly with Polson, Polson confirmed that he had not, in fact,

refused any legal mail. Id. at 3.

The infirmities in the ADC legal mail system, though, occur not just on an

individual basis when ADC regulations are not followed, but also on a systemwide

basis in compliance with explicit directions from top ADC officials including the

department’s General Counsel. Thus, in September, Amici learned that the ADC

had issued memoranda at a prison complex, and then statewide, through the ADC

General Counsel’s Office, announcing that mail coming from five specific

organizations would no longer be considered legal mail for confidentiality


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purposes unless it listed “an individual specific attorney as part of the return

address.” Exhs. 3, 4. The list of organizations subject to this new requirement

included Amici, along with the civil rights organizations the National Association

for the Advancement of Colored People and the Justice Project. Id. The

memoranda further explained that mail from these organizations that did not

identify a specific attorney in the return address would be opened and inspected by

mail room staff (presumably outside the presence of the prisoner to whom the mail

was addressed) and processed as regular mail. Id.

Upon learning of the ADC’s new instructions, PLO sent a letter dated

September 25, 2013, to defense counsel in Parsons in order to ensure Amici’s

continued ability to communicate with their clients and to safeguard those clients’

constitutional rights. Exh. 5. The letter informed the ADC that the new

instructions laid out in a memorandum circulated at the Eyman prison were

inconsistent with the ADC’s own mail policies, which contain no requirement that

incoming legal mail include the name of an attorney in the return address nor any

suggestion that mail from the listed organizations should be treated differently than

mail from other sources. Id. Rather, the ADC’s Manual states that the staff

responsible for processing incoming mail shall make the determination as to

whether mail should be classified as legal mail based on an inspection of the

envelope and instructs simply that “[t]he return address may be indicative of


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whether the contents of the envelope constitute legal mail.” Arizona Dep’t of

Corr., Department Order 902: Inmate Legal Access to the Courts, Sec. 902.11

(1.5).

Amici stated their belief that mail from their offices to class members should

presumptively be treated as privileged legal mail, which may not be read or

censored by staff. Exh. 5. Amici further requested that the Eyman memorandum

and any similar memoranda issued at other prison complexes be rescinded. Id. In

response, counsel for ADC reiterated the ADC’s position that only mail that

included a specific attorney’s name in the return address would be considered legal

mail, and informed Amici that a failure to properly address mailings would result

in the mail being processed as regular mail. Exh. 6. Counsel also indicated that

the ADC would not rescind the memorandum singling out Amici (and the other

two civil rights organizations) for disfavored treatment. Id. That ADC has

imposed this heightened burden on a targeted group of civil rights advocacy

organizations is deeply troubling. However, as Amici pointed out to Parsons

defense counsel, the envelopes used by PLO and the ACLU both list the name of

an attorney. Exh. 7. One might therefore expect that the new policy would not

affect prisoners’ ability to exercise their rights in practice. Unfortunately, Amici

are finding that even compliance with this heightened burden is insufficient to

guarantee confidential communication with their clients.


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Apparently determined to make communication between Parsons class

counsel and class members as difficult as possible, staff at ADC facilities have

interpreted the new policy as barring any mail to or from the listed organizations

from qualifying as legal mail. Barely a month after the memoranda were issued,

Amici learned that a class member had attempted to send mail addressed by name

to a specific PLO attorney as legal mail, but that staff at the Eyman prison complex

had refused to send the mail as legal mail, referring to the Eyman memorandum.

Exh. 8. Initially, the class member was simply told that correspondence with PLO

was no longer considered legal mail. Id. When he pressed his case with the

Eyman mailroom staff and law library contract paralegal, the paralegal invented a

new requirement not listed in the memorandum, and told the class member that

because the specific attorney listed on the envelope, Mr. Specter, was admitted to

practice law in California and not Arizona, the mail did not have to be treated as

legal mail. Id.

Both Amici and Nordstrom complain of the same basic problem: ADC

policies and practices that seriously limit prisoners’ ability to engage in

confidential correspondence with their attorneys as is their right. Amici have

repeatedly witnessed the ADC demonstrate a manifest disregard of prisoners’ basic

rights to free speech and access to the courts. The ADC’s stubborn reluctance to

consider correspondence between Amici and their clients as legal mail, and to


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afford it the protections to which it is entitled, is an act of intentional interference

with those rights. Amici’s experiences attempting to overcome the barriers they

encounter in the use of the ADC’s legal mail system thus bolster Nordstrom’s

account of a legal mail system that is seriously flawed, suggest that his experience

is not an anomaly, and indicate that a careful inquiry into the policies and practices

governing legal mail in Arizona’s prisons is warranted. Additionally, while Amici

are not yet aware that the confidentiality of any of its correspondence has been

improperly violated under the precise policies and practices upon which Nordstrom

bases his Complaint, while those policies and practices continue, Amici must

operate under the constant threat that such violations might chill communications

with clients and lead to the misuse of confidential information. See Guajardo-

Palma v. Martinson, 622 F.3d 801, 802 (7th Cir. 2010) (explaining that when a

prisoner brings a suit against the prison in which he is confined, allowing prison

staff to read the prisoner’s legal mail “[i]s like a litigant’s eavesdropping on

conferences between his opponent and the opponent’s lawyer”).

For these reasons, the Court should reverse the District Court’s dismissal of

Nordstrom’s complaint and remand the case for further proceedings.


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Dated: November 1, 2013

Respectfully submitted,

/s/ Donald Specter Donald Specter Corene Kendrick PRISON LAW OFFICE 1917 Fifth Street Berkeley, CA 94710-1916 [email protected] [email protected] Telephone: 510-280-2621 Facsimile: 510-280-2704

Attorneys for Amici


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CERTIFICATE OF COMPLIANCE PURSUANT TO FEDERAL RULE OF APPELLATE PROCEDURE 32(A)(7)(C) AND CIRCUIT RULE 32-1

Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C) and Ninth

Circuit Rule 32-1, I certify that that attached brief is proportionately spaced, has a

typeface of 14 points and contains 2,597 words, exclusive of exhibits.

Signed: /s/ Donald Specter Donald Specter PRISON LAW OFFICE 1917 Fifth Street Berkeley, CA 94710-1916 [email protected] Telephone: 510-280-2621

Facsimile: 510-280-2704

Attorney for Amici Dated: November 1, 2013


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CERTIFICATE OF SERVICE U.S. Court of Appeals Docket Number: 12-15738

I hereby certify that on November 1, 2013, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. Signed: /s/ Donald Specter Donald Specter PRISON LAW OFFICE 1917 Fifth Street Berkeley, CA 94710-1916 [email protected] Telephone: 510-280-2621

Facsimile: 510-280-2704

Attorney for Amici Dated: November 1, 2013

















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Case No. 12 -15738 UNITED STATES COURT OF APPEALS FOR …