Phillips v. Hust

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FRANK MARVIN PHILLIPS,  No. 04-36021

Plaintiff-Appellee,

v.  D.C. No.

CV-01-01252-ALH

LYNN HUST, Library Staff,

OPINION

Defendant-Appellant.



On Remand From The Supreme Court of the United States

Filed December 2, 2009

Before: Dorothy W. Nelson, Diarmuid F. O’Scannlain, and

Sidney R. Thomas, Circuit Judges.*

Opinion by Judge O’Scannlain

*The panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2).

15745

PHILLIPS v. HUST 15747

COUNSEL

John R. Kroger, Attorney General, Jerome Lidz, Solicitor

General, and Rolf C. Moan, Supreme Court Coordinator,

Salem, Oregon, filed the post-Supreme Court remand brief for

the appellant.

15748 PHILLIPS v. HUST

Frank Marvin Phillips, pro se, Salem, Oregon, filed the brief

for the appellee.

OPINION

O’SCANNLAIN, Circuit Judge:

We consider whether a prison librarian is entitled to quali-

fied immunity from suit alleging a constitutional tort for hin-

dering 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 communi-

cation (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 certio-

rari, 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:

PHILLIPS v. HUST 15749

“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 emer-

gency 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 peti-

tion 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 Sau-

cier v. Katz, 533 U.S. 194 (2001), the panel majority con-

cluded that Hust’s actions denied Phillips his right of access

to the courts and that Hust was not entitled to qualified immu-

nity 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, dis-

1

Phillips also brought other claims not at issue in this appeal.

15750 PHILLIPS v. HUST

sented 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, 129 S. Ct.

808 (2009).2

II

A

We are confronted with two questions in this remanded

case. First, did Hust’s actions violate the Constitution? Sec-

ond, assuming a constitutional violation, is Hust nevertheless

entitled to qualified immunity because the relevant constitu-

tional right was not “clearly established” at the time she

acted?

[1] 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 defen-

dant’s actions violated a constitutional right and second,

whether that right was clearly established. See Saucier, 533

U.S. at 200. 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 con-

siderable criticism from academics and judges.3

2

In a memorandum disposition filed concurrently with this opinion, we

dismiss appeal No. 07-36082, with which this case was consolidated, as

moot.

3

See, e.g., Purtell v. Mason, 527 F.3d 615, 622 (7th Cir. 2008) (“This

‘rigid order of battle’ has been criticized on practical, procedural, and sub-

stantive grounds.”); Pierre N. Leval, Judging Under the Constitution:

Dicta About Dicta, 81 N.Y.U. L. Rev. 1249, 1275 (2006) (referring to the

Saucier rule as “a puzzling misadventure in constitutional dictum, com-

PHILLIPS v. HUST 15751

[2] Earlier this year, perhaps hearing the criticism, the

Court reversed course. Noting that the Saucier “procedure

sometimes results in a substantial expenditure of scarce judi-

cial 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 discre-

tion in deciding which of the two prongs of the qualified

immunity analysis should be addressed first in light of the cir-

cumstances 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.

1

[3] This case is about the First Amendment right of access

to the courts. In Bounds v. Smith, 430 U.S. 817 (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.

manded by the Supreme Court”). But see Paul W. Hughes, Not a Failed

Experiment: Wilson-Saucier Sequencing and the Articulation of Constitu-

tional Rights, 80 U. Colo. L. Rev. 401, 401 (2009) (defending the Saucier

requirement on the ground that “mandatory sequencing is necessary for

the robust articulation of constitutional rights by the lower courts”).

15752 PHILLIPS v. HUST

[4] The Court subsequently made clear, however, that

Bounds “guarantee[d] no particular methodology but rather

the conferral of a capability—the capability of bringing con-

templated challenges to sentences or conditions of confine-

ment before the courts.” Lewis v. Casey, 518 U.S. 343, 356

(1996) (emphasis added). Moreover, there is a causation

requirement: an inmate must show that official acts or omis-

sions “hindered his efforts to pursue a [non-frivolous] legal

claim.” Id. at 351. Lewis recognized that the tools of litigation

must be made available when necessary to ensure “meaning-

ful access” to the courts. Id. (internal quotation marks omit-

ted); see also id. at 365 (Thomas, J., concurring) (“[T]he

majority opinion . . . places sensible and much-needed limita-

tions on the seemingly limitless right to assistance created in

Bounds . . . .”).

[5] 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 inciden-

tal (and perfectly constitutional) consequences of

conviction and incarceration.

Id. at 355 (majority opinion).

[6] 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, Shep-

ard’s Citations, and a number of other reference books. Id. at

PHILLIPS v. HUST 15753

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 consti-

tutional 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 type-

writer to prepare their legal documents where the court rules

permitted pro se litigants to hand-write their pleadings.

[7] 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, rea-

soning:

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 lat-

ter type of claim, we have declined to read into the Constitu-

tion any specific minimum requirements beyond those

15754 PHILLIPS v. HUST

mentioned in Bounds itself.” (emphases added) (citation omit-

ted)); Or. Admin. R. 291-139-0005 (requiring prison officials

to make available “necessary supplies for the preparation and

filing of legal documents” (emphasis added)). Therefore, for

Phillips to prevail, he must show that use of the comb-binding

machine was necessary to allow him “meaningful access” to

the courts.

2

Before answering that question, however, we pause to dis-

cuss Pearson’s impact on this case. Because the qualified

immunity issue is straightforward, this is an appropriate case

to bypass the more difficult question of whether Hust violated

Phillips’s constitutional rights. See Pearson, 128 S. Ct. at 818

(“There are cases in which it is plain that a constitutional right

is not clearly established but far from obvious whether in fact

there is such a right.”). Moreover, this is a case “in which the

constitutional question is so fact-bound that the decision

[would] provide[ ] little guidance for future cases.” Id. at 819.

Thus, gladly exercising our newfound authority, we do not

decide whether Hust’s actions violated Phillips’s constitu-

tional rights. Rather, we proceed directly to ask whether Hust

is entitled to qualified immunity.

C

[8] A state officer is not protected by qualified immunity

where he or she has violated a clearly established constitu-

tional right. “The relevant, dispositive inquiry in determining

whether a right is clearly established is whether it would be

clear to a reasonable officer that his conduct was unlawful in

the situation he confronted.” Saucier, 533 U.S. at 202; see

also Anderson v. Creighton, 483 U.S. 635, 640 (1987) (“The

contours of the right must be sufficiently clear that a reason-

able official would understand that what he is doing violates

that right.”). Although the official’s subjective intent is irrele-

vant, Anderson, 483 U.S. at 641, the information actually pos-

PHILLIPS v. HUST 15755

sessed by the officer is relevant to this determination. Hunter

v. Bryant, 502 U.S. 224, 227 (1991) (per curiam).

[9] Lewis made clear that the right at issue in a case such

as this is not “an abstract, freestanding right to a law library

or legal assistance.” 518 U.S. at 351. Rather, the right vindi-

cated by Bounds is a right of “meaningful access to the

courts.” Id. (internal quotation marks omitted). Thus, the pre-

cise question before us is whether a reasonable prison official

would believe that denying access to the comb-binding

machine would violate an inmate’s right of meaningful access

to the Supreme Court of the United States.

1

An understanding of the Supreme Court’s rules is essential

to answering this question. Rule 33.2 governs the form of

documents to be filed with the Court. It provides that every

document presented to the Court on 8½-by-11-inch paper

“shall be stapled or bound at the upper left-hand corner.” In

turn, Supreme Court Rule 39.3 requires every document pre-

sented by a party proceeding in forma pauperis to be “pre-

pared as required by Rule 33.2 (unless such preparation is

impossible).” It further requires that the petition be legible,

obviously expecting most filings to be handwritten. Finally,

Rule 39.3 directs the Clerk to “mak[e] due allowance for any

case presented under this Rule by a person appearing pro se.”

We make three observations about the rules. First, while an

initial reading suggests that stapling or binding is affirma-

tively required, Rule 39.3 provides an exception when such

methods are not possible. Second, Rule 33.2 requires the sta-

ple or binding to be at the upper left-hand corner. The rule,

by its terms, does not require comb-binding. Finally, Rule

39.3 specifically mandates leniency for pro se litigants, many

of whom the Court is fully aware are indigent prisoners.

15756 PHILLIPS v. HUST

2

[10] In light of the Supreme Court’s flexible rules for pro

se filings, which do not require and perhaps do not even per-

mit comb-binding, we have no difficulty concluding that Hust

is entitled to qualified immunity. The record establishes that

Hust was knowledgeable about filing requirements in courts.

In her affidavit, Hust stated that in her expertise as a prison

law librarian the courts accept pro se briefs without comb-

binding. Her view that comb-binding was not required was

reasonable, as the Supreme Court’s flexible rules make plain.

[11] Thus, the “unlawfulness” of Hust’s actions is simply

not apparent. Anderson, 483 U.S. at 640. It was not an unrea-

sonable reading of the rules of the Supreme Court to conclude

that they do not require, nor even allow, the comb-binding of

petitions. Furthermore, in light of the general tenor of Lewis

v. Casey and our cases which have held that only basic legal

supplies, and not unnecessary amenities, are to be provided to

inmates, see Sands, 886 F.2d at 1170, Hust’s denial of access

was not “willfully blind” to the requirements of law. Accord-

ingly, it was “objectively legally reasonable,” Anderson, 483

U.S. at 641; Act Up!/Portland v. Bagley, 988 F.2d 868, 872

(9th Cir. 1993), for Hust to conclude that her denial of access

to the comb-binding machine would not hinder Phillips’s “ca-

pability” to file his petition.4

3

Additional information in the record confirms Hust’s enti-

tlement to qualified immunity. Despite Hust’s unfamiliarity

4

Furthermore, it is undisputed that Hust “even contacted Trent Axen,

Law Librarian at the Oregon State Penitentiary (OSP) in Salem, Oregon,

who has experience with this matter to confirm what [she] already knew.

Mr. Axen confirmed that he does not bind inmate briefs and the court has

accepted unbound inmate briefs.” This type of reference to an outside,

knowledgeable source confirms the reasonableness of Hust’s actions.

PHILLIPS v. HUST 15757

with the explicit holding of Lewis v. Casey, she was clearly

aware of her affirmative duty to aid inmates in the filing of

legal documents.5 She stated that her job was not to provide

legal assistance to inmates, but instead to supervise inmates

in accord with Oregon Department of Corrections (“ODOC”)

Administrative Rules. Those rules provide:

Policy: Within the inherent limitations of

resources and the need for facility security, safety,

health and order, it is the policy of the Department

of Corrections to satisfy its legal obligation to pro-

vide inmates meaningful access to the courts by

affording inmates reasonable access to a law library

or contract legal services, and to necessary supplies

for the preparation and filing of legal documents

....

5

The district court’s reading of Hust’s response to Phillips’s interroga-

tory about Lewis v. Casey is clearly erroneous. The court found Hust to

be “willfully blind” to the applicable law when she “denied” the statement

that she was “somewhat familiar with Lewis v. Casey, 518 U.S. 343, 116

S. Ct. 2174, 135 L. Ed. 2d 606 (1996).” That statement, when read in con-

text, merely denies a precise knowledge of the Lewis case. It in no way

suggests that Hust was “willfully blind” to the requirement that the basic

supplies for litigation be afforded to inmates. Indeed, in the very same

affidavit, Hust asserts that part of her duties is to supervise inmates “in

accordance” with the ODOC Administrative Rules governing “Legal

Affairs (Inmate),“ which requires prison officials to make available “nec-

essary supplies.” The district court’s reading is akin to requiring a state

official, even one not required to be trained in the law, to be intimately

familiar with the names and holdings of decided cases. We have never

required so much. See Cox v. Roskelley, 359 F.3d 1105, 1115 n.1 (9th Cir.

2004) (citing McCullough v. Wyandanch Union Free Sch. Dist., 187 F.3d

272, 278 (2d Cir. 1999) (“The question is not what a lawyer would learn

or intuit from researching case law, but what a reasonable person in the

defendant’s position should know about the constitutionality of the con-

duct. The unlawfulness must be apparent.”)). The context of Hust’s state-

ments makes clear that she was generally knowledgeable about what was

required of her as a law librarian. Nothing more is required.

15758 PHILLIPS v. HUST

Or. Admin. R. 291-139-0005. That Hust was aware of this

policy requiring her to aid in the preparation of legal materials

is undisputed.

4

Finally, the delay in time responding to Phillips’s request

was not unreasonable based upon the information known to

Hust at the time. See Anderson, 483 U.S. at 641 (noting that

the determination of whether official action is objectively

legally reasonable “will often require examination of the

information possessed by” the state actor). Here, the undis-

puted record shows that the June 13 request which Phillips

sent to Hust did not indicate the date which the petition was

due.

III

Based on the foregoing, we are satisfied that Hust is enti-

tled to qualified immunity.

We REVERSE the district court’s grant of summary judg-

ment to Phillips, and REMAND with instructions to grant

Hust’s motion for summary judgment based on qualified

immunity.