Phillips v. Hust

Decision Date13 February 2007
Docket NumberNo. 04-36021.,04-36021.
Citation477 F.3d 1070
PartiesFrank Marvin PHILLIPS, Plaintiff-Appellee, v. Lynn HUST, Library Staff, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Hardy Myers, Attorney General, May H. Williams, Solicitor General, and Richard D. Wasserman, Attorney-in-Charge, Civil/Administrative Appeals Unit, Salem, OR, for the appellant.

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

Appeal from the United States District Court for the District of Oregon; Ancer L. Haggerty, District Judge, Presiding. D.C. No. CV-01-01252-ALH.

Before: BROWNING, D.W. NELSON, and O'SCANNLAIN, Circuit Judges.

BROWNING, Circuit Judge:

In this case, we must decide whether the arbitrary denial by prison officials of access to materials the prison routinely made available to inmates for the preparation of legal documents constitutes a denial of an inmate's right of access to the courts where it results in the loss of a legal claim. We hold that it does.

Defendant-Appellant Lynn Hust appeals the grant of summary judgment in favor of Plaintiff-Appellee Frank M. Phillips, Jr. on his claim under 42 U.S.C. § 1983, and the denial of her motion for summary judgment asserting qualified immunity. In addition, Hust appeals the district court's damages award.

We have jurisdiction under 28 U.S.C. § 1291 over this appeal of the final judgment of the district court. We affirm the grant of summary judgment to Phillips and the denial of Hust's qualified immunity claim, and we remand the case to the district court to make further factual findings concerning its award of damages.


Phillips was convicted in state court of second degree manslaughter and sentenced to an indeterminate term of ten years imprisonment, with a minimum sentence of five years for using a firearm during the commission of the offense. Phillips completed his sentence, and was subsequently incarcerated for other crimes. Phillips sought state court post-conviction relief challenging his manslaughter conviction on the grounds that he received ineffective assistance of counsel. After exhausting his appeals in state court, he intended to seek review of his claim in the United States Supreme Court, where he hoped to show that the state courts had violated the Constitution by applying a preponderance of the evidence standard in finding that any ineffective assistance he received did not affect the outcome of his criminal trial.

Phillips's petition for certiorari had a filing deadline of June 18, 2001. On June 3, 2001, Phillips sent an inmate communication (a "kite") directed to "Ms. Fendley" requesting access to the comb-binding machine. Phillips had in the past been permitted to use the comb-binder to bind a brief to the Oregon Supreme Court. In addition, Phillips had already partially comb-bound his petition, and he was seeking access to the comb binder in order to insert an additional 40 pages. He was called to the library on June 8, 2001 for the purpose of binding his petition for certiorari, but the comb-binding machine had been moved, and he was unable to bind the petition on that date. Three days later, on June 11, 2001, Phillips sent another kite directed to "Ms. Rossi/Hust" stating that "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.)." This kite did not inform Hust of the filing deadline or that the document Phillips wished to bind was a petition for writ of certiorari to the Supreme Court. Hust received the kite no later than June 13, 2001. On June 18, the day Phillips's cert. petition was due, Hust responded "[w]e do not comb bind materials for inmates." Evidence in the record showed that the usual response time for such kites was 1 to 2 days. In a sworn statement, Hust asserted that prison rules in effect at the time did not permit inmates to comb bind their own materials, and that in the past, inmates had been permitted to submit filings bound with a staple or unbound. Nevertheless, upon receiving this response from Hust, Phillips sent a kite to Hust's supervisor, Program Services Manager Gilmore, with the inscription "Legal Emergency" at the top and requesting access to the comb binder. Gilmore granted this request on June 25, one week after Hust had denied Phillips access to the comb-binder. Hust did not permit Phillips to enter the law library until June 29, 2001, at which time he comb punched his materials, bound his petition, and filed it with the Supreme Court. The Supreme Court rejected the petition as "out of time."

Phillips and Hust had a history of strained relations resulting from an incident in which Phillips, in violation of prison policy, used a prison typewriter to draft a letter to the West Group to inquire about some advance sheets missing from the library's collection. Misinterpreting Phillips's letter as a request for replacement advance sheets, West mailed duplicates to the prison library. Hust initiated disciplinary proceedings against Phillips charging him with Unauthorized Use of a Computer II, Mail Fraud, Disobedience of an Order II, Forgery, Disrespect III, and Extortion II. All of these charges, classified as major, were rejected by the hearing officer, who found him guilty only of a minor violation, Disobedience of an Order III for unauthorized use of the typewriter.

On April 4, 2002, Phillips brought suit in the United States District Court for the District of Oregon alleging three causes of action under 42 U.S.C. § 1983, one for impeding his right to freely associate, communicate, and correspond with others relating to Hust's initiation of disciplinary proceedings, one for Hust's violation of Phillips's right of access to the courts, and one for retaliation relating to her denial of access to the comb binder. In mid-August 2002, both parties filed motions for summary judgment, which the district court treated as cross-motions. The district court granted Phillips's summary judgment motion on March 31, 2003, as to his right of access to the courts claim as to liability, and denied it as to his other claims. The court reserved the issue of damages for Phillips's access to the courts claim for trial. In the same order, the district court denied Hust's summary judgment motion. Subsequently, the parties settled Phillips's other two claims.

The court held a bench trial on September 20, 2004 on the damages issues. At the trial, Phillips sought non-economic damages, essentially mental and emotional distress, as well as economic damages in the amount of his costs and expenses in the state court post-conviction proceedings he was attempting to appeal to the Supreme Court. In addition, he sought punitive damages. On September 29, the court entered its findings of fact and conclusions of law awarding Phillips $1500 in compensatory damages, but denying punitive damages. In regards to Phillips's request for the costs of the state court proceedings, the court observed the proper time for seeking such costs was after the entry of judgment via a bill of costs. The district court entered its final judgment on September 29, 2004. On October 18, 2004, Phillips submitted a bill of costs. The district court denied the request for costs on November 18, 2004, on the grounds that Phillips sought to recover only the costs of his state court post-conviction relief action, which the district court held were not available as costs in the present action, and which the court further stated had been awarded as part of compensatory damages.


We review de novo the district court's decision on cross motions for summary judgment. Parents Involved in Cmty. Schools v. Seattle School Dist. No. 1, 426 F.3d 1162, 1172 n. 11 (9th Cir.2005) (en banc). Our review is governed by the same standard used by the trial court under Fed.R.Civ.P. 56(c). Suzuki Motor Corp. v. Consumers Union, Inc., 330 F.3d 1110, 1131 (9th Cir.2003). Under Rule 56(c), we must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Id.

Under the First and Fourteenth Amendments to the Constitution, state prisoners have a right of access to the courts. Lewis v. Casey, 518 U.S. 343, 346, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). "[A]ccess to the courts means the opportunity to prepare, serve and file whatever pleadings or other documents are necessary or appropriate in order to commence or prosecute court proceedings affecting one's personal liberty." Id. at 384, 116 S.Ct. 2174 (quoting Hatfield v. Bailleaux, 290 F.2d 632, 637 (9th Cir.1961)). This right "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." Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977).

Where a prisoner asserts a backward-looking denial of access claim — one, as here, seeking a remedy for a lost opportunity to present a legal claim — he must show: 1) the loss of a "nonfrivolous" or "arguable" underlying claim; 2) the official acts frustrating the litigation; and 3) a remedy that may be awarded as recompense but that is not otherwise available in a future suit. See Christopher v. Harbury, 536 U.S. 403, 413-14, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002).


The first element, requiring the loss of a nonfrivolous underlying claim, goes to the plaintiff's standing to bring suit. To have standing to assert a claim of denial of access to the courts, an inmate must show "actual injury." Lewis, 518 U.S. at 351, 116 S.Ct. 2174. In order to establish actual injury, the inmate must demonstrate that official acts or omissions "hindered his efforts to pursue a [nonfrivolous] legal claim." Id. at 351, 353, 353, 116 S.Ct. 2174 n. 3.

Here, Hust's...

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