Phillips v. Hust

• Citation: 588 F.3d 652
• Decision Date: 02 December 2009
• Docket Number: No. 04-36021.,04-36021.
• Parties: Frank Marvin PHILLIPS, Plaintiff-Appellee, v. Lynn HUST, Library Staff, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

588 F.3d 652

Frank Marvin PHILLIPS, Plaintiff-Appellee, v. Lynn HUST, Library Staff, Defendant-Appellant.

No. 04-36021.

United States Court of Appeals, Ninth Circuit.

December 2, 2009.

John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Rolf C. Moan, Supreme Court Coordinator, Salem, OR, filed the post-Supreme Court remand brief for the appellant.

Frank Marvin Phillips, pro se, Salem, OR, filed the brief for the appellee.

On Remand from the Supreme Court of the United States. D.C. No. CV-01-01252-ALH.

Before: D.W. NELSON, DIARMUID F. O'SCANNLAIN, and SIDNEY R. THOMAS, Circuit Judges.^*

O'SCANNLAIN, Circuit Judge:

We consider whether a prison librarian is entitled to qualified immunity from suit alleging a constitutional tort for hindering an inmate's ability to comb-bind a petition for a writ of certiorari to the Supreme Court of the United States.

I

A

Frank Marvin Phillips was convicted of second-degree manslaughter. While in prison, Phillips brought ineffective assistance of counsel claims in state court. The state courts rejected Phillips's suit, reasoning that any error on counsel's part did not affect the outcome of the trial. Phillips intended to seek review in the Supreme Court of the United States.

After drafting his petition for a writ of certiorari, Phillips sought to comb-bind the petition in the prison library. The Supreme Court's rules require such a petition to be stapled or bound at the upper left-hand corner. They do not require comb-binding. Nevertheless, on June 3, 2001, fifteen days before the petition was due, Phillips sent an inmate communication (a "kite") to a "Ms. Fendley" requesting access to the comb-binding machine. Five days later, Phillips was called to the library for the purpose of binding his petition for certiorari, but the comb-binding machine was unavailable.

On June 11, a week before the deadline, Phillips sent another kite to Lynn Hust, the prison librarian. The kite read:

"I have a brief that needs to be bound and sent soon. Please schedule me for any MORNING to briefly use the comb punch (1 hour will do.)." Phillips's letter did not inform Hust of the impending deadline. Hust received the kite by June 13. On June 18, the filing deadline, Hust rejected Phillips's request to use the machine.

Upon receiving Hust's response, Phillips sent an emergency letter to Hust's supervisor requesting access to the machine. The supervisor granted the request on June 25, one week after the petition was due. Phillips comb-bound the petition on June 29, but the Supreme Court rejected it as "out of time."

B

Phillips sued Hust under 42 U.S.C. § 1983, claiming that her failure to allow him access to the comb-binding machine violated his First Amendment right of access to the courts.¹ The United States District Court for the District of Oregon granted summary judgment to Phillips and, after a bench trial, awarded him $1500 in compensatory damages.

Hust appealed, and a three-judge panel of this court affirmed. Applying the two-step procedure required by Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), the panel majority concluded that Hust's actions denied Phillips his right of access to the courts and that Hust was not entitled to qualified immunity because the right was clearly established at the time Hust acted. Phillips v. Hust, 477 F.3d 1070 (9th Cir.2007). Judge O'Scannlain dissented.

Subsequently, a judge called for rehearing en banc. After a vote, the full court denied Hust's petition for rehearing en banc. Chief Judge Kozinski, joined by nine other judges, dissented from the denial of rehearing en banc. Phillips v. Hust, 507 F.3d 1171 (9th Cir.2007).

Hust then filed a petition for a writ of certiorari in the Supreme Court of the United States. The Court granted the petition, vacated our three-judge panel opinion, and remanded for reconsideration in light of Pearson v. Callahan, ___ U.S. ___, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).²

II

A

We are confronted with two questions in this remanded case. First, did Hust's actions violate the Constitution? Second, assuming a constitutional violation, is Hust nevertheless entitled to qualified immunity because the relevant constitutional right was not "clearly established" at the time she acted?

Until this year, the Supreme Court required us to resolve those issues in a rigid two-step "order of battle." That is, we were required, first, to determine whether the defendant's actions violated a constitutional right and second, whether that right was clearly established. See Saucier, 533 U.S. at 200, 121 S.Ct. 2151. The so-called "Saucier two-step" was designed to promote the Constitution's "elaboration from case to case" and to prevent "constitutional stagnation," but generated considerable criticism from academics and judges.³

Earlier this year, perhaps hearing the criticism, the Court reversed course. Noting that the Saucier "procedure sometimes results in a substantial expenditure of scarce judicial resources on difficult questions that have no effect on the outcome of the case," the Court abandoned the rigid two-step order of battle. Pearson, 129 S.Ct. at 818. The Court explained that "while the sequence set forth there is often appropriate, it should no longer be regarded as mandatory." Id. Rather, "[t]he judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Id. Thus, if we see fit, we may now skip the first step of the Saucier analysis and proceed directly to the qualified immunity question.

B

Keeping Pearson in mind, we turn to the case now before us.

This case is about the First Amendment right of access to the courts. In Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), the Supreme Court held that "the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law." Id. at 828, 97 S.Ct. 1491.

The Court subsequently made clear, however, that Bounds "guarantee[d] no particular methodology but rather the conferral of a capability—the capability of bringing contemplated challenges to sentences or conditions of confinement before the courts." Lewis v. Casey, 518 U.S. 343, 356, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (emphasis added). Moreover, there is a causation requirement: an inmate must show that official acts or omissions "hindered his efforts to pursue a [non-frivolous] legal claim." Id. at 351, 116 S.Ct. 2174. Lewis recognized that the tools of litigation must be made available when necessary to ensure "meaningful access" to the courts. Id. (internal quotation marks omitted); see also id. at 365, 116 S.Ct. 2174 (Thomas, J., concurring) ("[T]he majority opinion ... places sensible and much-needed limitations on the seemingly limitless right to assistance created in Bounds ....").

Thus, the conferral of a capability to bring a non-frivolous legal action does not require states to turn prisoners into litigating machines. As the Supreme Court explained in Lewis:

Bounds does not guarantee inmates the wherewithal to transform themselves into litigating engines.... The tools it requires to be provided are those that the inmates need in order to attack their sentences, directly or collaterally, and in order to challenge the conditions of their confinement. Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration.

Id. at 355, 116 S.Ct. 2174 (majority opinion).

Our precedents confirm the limited nature of the right recognized in Bounds. In Lindquist v. Idaho State Board of Corrections, 776 F.2d 851 (9th Cir.1985), we held that a prison library need not contain the Pacific Reporter 2d, Shepard's Citations, and a number of other reference books. Id. at 856. We noted that Bounds did not require a prison to provide its inmates with "a library that results in the best possible access to the courts." Id. (emphasis added). Instead, what Bounds required was that the resources meet minimum constitutional standards sufficient to provide meaningful, though perhaps not "ideal," access to the courts. Id. We thus had no trouble also concluding that inmates had no right to a typewriter to prepare their legal documents where the court rules permitted pro se litigants to hand-write their pleadings.

Contrast Lindquist with Allen v. Sakai, 40 F.3d 1001 (9th Cir.1994). In that case, Allen's notice of appeal to the Hawaii Circuit Court was rejected because it was written in pencil and not ink. Allen claimed that the outright denial of a pen deprived him of access to the courts. We agreed, reasoning:

Hawaii's Circuit Court Rule 3(a) requires that all "handwritten entries on papers shall be in black ink," and defendants concede that this mandate was "clear and explicit" and provided no exceptions. In light of the clarity of the pre-existing law, it should have been apparent to the defendants that a ban on the use of pens would seriously hamper an inmate's access to the courts and therefore constitute a violation of his rights under Bounds.

40 F.3d at 1006. Allen presented a stark example of how the complete denial of a "clear[ly]" necessary writing utensil—specifically mentioned as a required tool by the Bounds court—could effectively deprive an inmate of his right of access to the courts. The result in Allen is thus unremarkable. See Sands v. Lewis, 886 F.2d 1166, 1169 (9th Cir.1989) ("[We] have considered claims based on Bounds's teaching that the State must provide `indigent' prisoners with basic supplies which ensure that their access is `meaningful.' In evaluating this...