This analysis continued in Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986). In that case, a prison guard left a pillow on the stairway. There was no evidence that he intended the consequences, i.e., injuries to the back and ankle of the plaintiff when he fell after encountering it. The majority opinion observed:

When dealing with a claim that such a document creates a right in prisoners to sue a government official because he negligently created an unsafe condition in the prison, we bear in mind Chief Justice Marshall's admonition that "we must never forget; that it is a constitution we are expounding," McCulloch v. Maryland, 4 Wheat 316, 407 [4 L. Ed. 579] (1819) (emphasis in original). Our Constitution deals with the large concerns of the governors and the governed, but it does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society. We have previously rejected reasoning that "would make of the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the States," Paul v. Davis, 424 U.S. 693, 701, 47 L. Ed. 2d 405, 96 S. Ct. 1155 [1160] (1976), quoted in Parratt v. Taylor, 451 U.S. , at 544, 68 L. Ed. 420, 101 S. Ct. 1908 [at 1917].

The only tie between the facts of this case and anything governmental in nature is the fact that respondent was a sheriff's deputy at the Richmond city jail and petitioner was an inmate confined in that jail. But while the Due Process Clause of the Fourteenth Amendment obviously speaks to some facets of this relationship, see, e.g., Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974), we do not believe its protections are triggered by lack of due care by prison officials.

Id. at 332-33, 106 S.Ct. at 666, 88 L. Ed. 2d at 669.

The Court continued its analysis in Davidson v. Cannon, 474 U.S. 344, 106 S. Ct. 668, 88 L. Ed. 2d 677 (1986). In that case the plaintiff sent a note to prison officials that he had been threatened by an inmate. The officers who received it discredited its importance and passed it on to another officer who forgot about it. The plaintiff was assaulted by the inmate, and suffered personal injury. State law granted complete immunization of public employees from claims of this type. The majority opinion pointed out as follows:

Respondents' lack of due care in this case led to serious injury, but that lack of care simply does not approach the sort of abusive government conduct that the Due Process Clause was designed to prevent. Daniels, ante, [474 U.S.] at 331-333, 88 L. Ed. 2d 662, 106 S. Ct. 662 [at 665-666]. Far from abusing governmental power, or employing it as an instrument of oppression, respondent Cannon mistakenly believed that the situation was not particularly serious, and respondent James simply forgot about the note. The guarantee of due process has never been understood to mean that the State must guarantee due care on the part of its officials.

Id. at 347-48, 106 S.Ct. at 670, 88 L. Ed. 2d at 677.

This analysis was further advanced in City of Canton, Ohio v. Harris, --- U.S. ----, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989). The Supreme Court abandoned "gross negligence" as the test for a city's liability from failure to train its employees and replaced it with a "deliberate indifference" test. Thus the requirement that only a municipal policy can give rise to section 1983 liability means that such liability arises only from a " 'deliberate' or 'conscious' choice." Id. 109 S.Ct. at 1205. Requiring such a deliberate or conscious choice by municipalities presents interesting parallels with Daniels' § and Davidson's emphasis on deliberate or intentional conduct by individuals.

The Supreme Court has held that an official's negligent act does not implicate the due process clause. Daniels, 474 U.S. at 332, 106 S.Ct. at 665; Davidson, 474 U.S. at 347, 106 S.Ct. at 670; Rinker v. County of Napa, 831 F.2d 829, 832 (9th Cir.1987). In the context of constitutional torts, it is the deliberate, intentional abuse of governmental power for the purpose of depriving a person of life, liberty or property that the fourteenth amendment was designed to prevent. See Daniels, 474 U.S. at 330-32, 106 S.Ct. at 664-65; Davidson, 474 U.S. at 347-48, 106 S. Ct. at 670. Allowing mere negligence to sustain a due process claim under section 1983 would trivialize the fourteenth amendment. Daniels, 474 U.S. at 332, 335, 106 S. Ct. at 665, 667. Actions such as mislaying an inmate's property, or leaving a pillow on the prison stairs, suggest not abuse of power but merely "failure to measure up to the conduct of a reasonable person." Id. at 332, 106 S. Ct. at 665.

Applying the foregoing tests, we do not believe that Koskey's culpability rose to the level of the intent constitutionally required for section 1983 liability under Daniels. We draw this conclusion from our examination of the entire factual record in this case, that is, the stipulated facts agreed to by the parties. Relying solely on these stipulated facts, the district court found that Koskey "reasonably could have foreseen" that the guard would open Stevenson's legal mail outside his presence. This conclusion is reviewed for clear error. See EEOC v. Maricopa County Community College District, 736 F.2d 510, 513 (9th Cir.1984) (finding of fact derived from stipulated facts reviewed for clear error); United States v. Chesher, 678 F.2d 1353, 1358 n. 3 (9th Cir.1982) (same); Weyerhaeuser Co. v. Altropos Island, 777 F.2d 1344, 1349-50 (9th Cir.1985) (district court's findings of negligence and proximate cause reviewed for clear error). We believe the district court clearly erred.

The stipulated facts reveal only that Koskey complied with the guard's request that she surrender Stevenson's mail, which qualified as legal mail, for inspection. The guard then thumbed through the documents in the envelope. [Id.] The record here contains no other factual information about Koskey's encounter with the guard. We see no basis for the conclusion that Koskey reasonably could have foreseen that the guard would open the envelope. The guard might just as likely have inspected the envelope by feeling it without opening it. Nothing in this record indicates that Koskey could have known otherwise. The burden of establishing Koskey's level of culpability rests with the plaintiff, Stevenson. See, e.g., Rinker, supra, 831 F.2d at 831-32. Stevenson has not shown, based on this record, that Koskey's conduct concerning plaintiff's mail rose beyond the level of mere negligence. Although Koskey may perhaps be said to have handed the letter over intentionally, the relevant event for purposes of analyzing Koskey's culpability is the alleged constitutional injury, the guard's opening of the letter outside Stevenson's presence. See, e.g., Rinker, supra, 831 F.2d at 832; see also, Dissent [Reinhardt op.] at 1442. As to the actual opening of the letter, we do not see how Koskey was more than negligent. We are not sure whether she was even negligent. And interestingly, it is not even clear from this record that the envelope had not already been opened before Koskey arrived at the prison.

A different case, or a different record in this case might provide better support for the dissent's conclusion that conduct such as Koskey's rises above negligence. But such a case is not before us.

The case is reversed and remanded to the trial court to enter a judgment in conformity with this opinion.

I concur in the result and I concur in the opinion of Judge Price to the extent that it rests on the conclusion that Koskey's conduct was no more than negligent and thus did not rise to the level of culpability required in section 1983 due process actions under Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986), and Davidson v. Cannon, 474 U.S. 344, 106 S. Ct. 668, 88 L. Ed. 2d 677 (1986). See also Rinker v. County of Napa, 831 F.2d 829 (9th Cir.1987). Although the majority opinion presents a strong argument on the difficult questions of proximate and intervening cause, I see no reason to reach the issues. The conclusion, shared by Judge Price and myself, that Koskey's state of mind does not rise to the level necessary to support liability provides a sufficient basis for reversing the decision of the district court.

The majority reaches a simple conclusion. It holds--amidst considerable dictum--that under the facts of this case, appellee (Stevenson) has been unable to prove more than simple negligence on the part of appellant (Koskey). While I do not quarrel with the legal conclusion that negligence does not rise to the level of a constitutional violation, I strongly disagree with the majority's characterization of events and its willingness to overturn the factual conclusions of the district court which the parties themselves accept as correct.

Stevenson was a prisoner in the Washington County Jail. Koskey was his assigned probation and parole officer. For reasons not entirely clear from the record, legal mail addressed to Stevenson fell into the hands of Koskey. Rather than sending the legal correspondence through normal channels, Koskey voluntarily assumed responsibility for hand-delivering the letter directly to Stevenson. When she arrived at the jail, a prison guard, whose identity remains unknown, requested that she surrender the letter for inspection. She handed the letter to the guard and waited while he opened and leafed through the contents. Stevenson was not present during the inspection. As the district court found, and as Koskey's counsel conceded at oral argument, Koskey "intentionally gave legal mail to a correction's officer for inspection outside of the inmate's presence." Her actions constituted constitutional error.

The case was tried on stipulated facts. Admittedly, the stipulated facts are subject to conflicting interpretations. The facts simply say that appellant "was asked by a Washington County corrections officer to first surrender those items for a contraband inspection. Defendant complied with that request and the corrections officer leafed through the documents in the envelope." The stipulated facts do not clearly say whether Koskey handed over the letter and then was surprised by the guard's unconstitutional search or whether she handed the letter over for the understood purpose of permitting its search outside the presence of the prisoner. Both constructions are consistent with the parties' stipulations.

I see two compelling reasons why we are required to adopt the second version of events. First, Judge Panner, the finder of fact, found that Koskey intentionally turned over the letter to the prison guard for the purpose of an immediate search. It is absolutely clear in this circuit that this finding is reversible only if it is clearly erroneous. See, e.g., EEOC v. Maricopa County Community College District, 736 F.2d 510, 513 (9th Cir.1984); Nicholson v. Board of Education, 682 F.2d 858, 864 n. 6 (9th Cir.1982); United States v. Chesher, 678 F.2d 1353, 1358 n. 3 (9th Cir.1982); Collins v. Thompson, 679 F.2d 168, 170 (9th Cir.1982); United States v. Mountain States Construction Co., 588 F.2d 259, 264 n. 5 (9th Cir.1878); Starsky v. Williams, 512 F.2d 109, 111 (9th Cir.1975); Lundgren v. Freeman, 307 F.2d 104, 115 (9th Cir.1962). Our review of the trial court's factual determinations is thus highly deferential, and any situation that may give rise to two plausible interpretations must be resolved in a manner consistent with the district court's findings. In this case, Judge Panner concluded from the stipulated record that Koskey intended that the guard open the letter. His findings are consistent with the stipulated facts and well supported in the underlying trial documentation.1 There is no basis, whatsoever, in fact or in law, for the majority's peremptory conclusion that the district court's findings are clearly erroneous.

Second, appellant never, not in her trial memorandum or in her appellate brief, contests the factual finding of the district court. Nowhere does she suggest that she was surprised or taken aback by the guard's actions. I find it remarkable that the majority has based its entire argument on a perceived need to overturn, as clearly erroneous, a factual finding that the parties do not even dispute. In effect, the majority has broken two basic laws of appellate review: deference to factual findings of the district court and review limited to the issues raised by the parties.

The majority's version of events gives the entire opinion a mechanical and ineluctable feel, one unrelated to the realities of the dispute. Under Judge Price's factual theory of the case, Koskey had no choice but to hand over the legal letter to the prison guard.2 She--like more famous government officials--was merely following orders. "In order to accomplish her purpose, defendant had no choice but to accede to the 'orders,' if you will, of the corrections officer in order to realize her purposes." Maj. op. at 1438. Whatever may be the merits of the Nuremburg-style defense Judge Price has so imaginatively dreamed up for Koskey, a fundamental difficulty with it is that in this case the facts to support such a defense are simply not present. Koskey clearly had options. She was unquestionably in a position to do something about the violation of Stevenson's constitutional rights. All she had to do, for example, was request the guard to obey the law. At the very least, she could have turned around, walked out the door, and stuck the letter in the nearest mailbox. The letter would have gone through normal prison channels and, one is entitled to presume, eventually been opened in the prisoner's presence.3 I think this relatively slight inconvenience would have been a small price to pay for the protection of Stevenson's constitutional rights.

The interpretation of the facts accepted by the parties to this case and by the district court should fairly lay to rest the central arguments of the majority. On appeal, appellant has never questioned Judge Panner's finding that she handed over the confidential letter for the purpose of permitting the guard to make a search outside the presence of the intended recipient. Rather, she has relied on three legal theories that she contends preclude a finding of liability notwithstanding the intentional nature of her conduct. Because the majority reaches a conclusion based solely upon the erroneous factual findings it renders sua sponte, I see no reason to address any of appellant's legal arguments, all of which I believe to be without merit. I dissent.