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.

Appeal from the United States District Court
for the District of Oregon
Ancer L. Haggerty, District Judge, Presiding
Submitted December 9, 2005*
Portland, Oregon
Filed February 13, 2007
Before: James R. Browning, Dorothy W. Nelson, and
Diarmuid F. O’Scannlain, Circuit Judges.
Opinion by Judge Browning;
Dissent by Judge O’Scannlain
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
1769
PHILLIPS v. HUST 1773
COUNSEL
Hardy Myers, Attorney General, May H. Williams, Solicitor
General, and Richard D. Wasserman, Attorney-in-Charge,
Civil/Administrative Appeals Unit, Salem, Oregon, for the
appellant.
Frank Marvin Phillips, pro se, Salem Oregon, for the appellee.
OPINION
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 docu-
ments 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.
1774 PHILLIPS v. HUST
Defendant-Appellant Lynn Hust appeals the grant of sum-
mary judgment in favor of Plaintiff-Appellee Frank M. Phil-
lips, 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 dam-
ages 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.
I.
Phillips was convicted in state court of second degree man-
slaughter 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 com-
munication (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 par-
tially comb-bound his petition, and he was seeking access to
PHILLIPS v. HUST 1775
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 peti-
tion 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, 2005. 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 Ser-
vices Manager Gilmore, with the inscription “Legal Emergen-
cy” 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 peti-
tion, 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 result-
ing 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 dupli-
cates to the prison library. Hust initiated disciplinary proceed-
ings against Phillips charging him with Unauthorized Use of
1776 PHILLIPS v. HUST
a Computer II, Mail Fraud, Disobedience of an Order II, For-
gery, 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 dis-
trict court denied Hust’s summary judgment motion. Subse-
quently, 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 puni-
tive 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
PHILLIPS v. HUST 1777
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 pres-
ent action, and which the court further stated had been
awarded as part of compensatory damages.
II.
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.[1] 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 (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 proceed-
ings affecting one’s personal liberty.” Id. at 384 (quoting Hat-
field v. Bailleaux, 290 F.2d 632, 637 (9th Cir. 1960)). This
right “requires prison authorities to assist inmates in the prep-
aration 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 (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)
1778 PHILLIPS v. HUST
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 (2002).
A.
[2] 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. 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 n.3.
[3] Here, Hust’s refusal to allow Phillips access to the
comb-binding machine hindered Phillips’s ability to timely
file his petition for certiorari seeking review of his state court
post-conviction relief action. This action resulted in the peti-
tion being rejected as untimely and thus caused “actual preju-
dice with respect to contemplated or existing litigation.” Id. at
348.
We reject Hust’s argument that Phillips’s post-conviction
claims were frivolous. Phillips’s petition for certiorari pre-
sented the issue, inter alia, whether the state court, in finding
that Phillips’s counsel committed no errors that “would have
produced a different result” in his trial, applied a preponder-
ance of the evidence standard in violation of U.S. Supreme
Court strictures. While the state court recited the correct stan-
dard, it is certainly arguable, based upon the language of the
court’s opinion, that it did not apply it. Accordingly, Phil-
lips’s petition for certiorari was not frivolous.
[4] Hust further contends that in order to show that his legal
claims were not frivolous, Phillips must establish not only
that the claims have merit, but also that they meet one of the
PHILLIPS v. HUST 1779
criteria for certiorari specified in the Supreme Court’s Rule
10. Rule 10, however, clearly indicates that the delineated
criteria do not control or provide the measure of the Court’s
discretion in granting certiorari. We will not presume to spec-
ulate what the Supreme Court might in its discretion have
done had it been presented with a timely petition. For similar
reasons, we have held that, in order to establish actual injury,
a plaintiff “need not show, ex post, that he would have been
successful on the merits had his claim been considered.” Allen
v. Sakai, 48 F.3d 1082, 1085 (9th Cir. 1994). We think it
equally apparent that where the suit underlying an access to
the courts claim was to be brought in a court having discre-
tionary jurisdiction, the plaintiff need not establish, ex post,
that the court would have exercised its discretion and
accepted the case. Cf. Gentry v. Duckworth, 65 F.3d 555, 559
(7th Cir. 1995) (plaintiff adequately alleged actual injury
where state court retained discretion to address post-
conviction claims notwithstanding that claims had been pro-
cedurally defaulted).
B.
[5] Under Harbury’s second element, Phillips must show
that Hust’s denial of use of the comb-binding machine frus-
trated his attempt to press his claim in the Supreme Court. In
other words, as in any § 1983 case, Phillips must show that
the alleged violation of his rights was proximately caused by
Hust, the state actor. See Crumpton v. Gates, 947 F.2d 1418,
1420 (9th Cir. 1991) (citing Parratt v. Taylor, 451 U.S. 527,
535 (1981)). The touchstone of proximate cause in a § 1983
action is foreseeability. See Tahoe-Sierra Pres. Council, Inc.
v. Tahoe Regional Planning Agency, 216 F.3d 764, 784-85
(9th Cir. 2000) (citing Arnold v. IBM Corp., 637 F.2d 1350,
1355 (9th Cir. 1981)).
[6] Hust argues that Phillips cannot show that her actions
caused the late filing of Phillips’s petition because he could
have used an alternate means of binding his petition for cer-
1780 PHILLIPS v. HUST
tiorari or he could have submitted the petition unbound. We
think this contention misses the point. Even if Hust’s actions
were not an insurmountable obstacle to Phillips’s attempt to
assert his claim, Hust effectively prevented Phillips from fil-
ing his cert. petition by arbitrarily and selectively denying him
access to the comb-binding machine.
[7] The Constitution requires that prison officials make it
possible for inmates to prepare, file, and serve pleadings and
other documents essential for pleading their causes. Lewis,
518 U.S. at 346. Of course, the Constitution does not demand
that any means of preparation selected by the inmate be made
available, so long as the inmate has some means of preparing
documents that comply with the rules of the court in which
his case is pending. Thus, we have held that inmates have no
right to a typewriter to prepare legal documents where court
rules permit pro se litigants to hand-write their pleadings.
Lindquist v. Idaho State Bd. of Corrections, 776 F.2d 851,
858 (9th Cir. 1985) (citing Twyman v. Crisp, 584 F.2d 352,
358 (10th Cir. 1978)). Nevertheless, it remains true that some
means of preparing legal documents, including a means of
binding them where required, must be made available.
[8] Here, the uncontradicted evidence in the record indi-
cates that, despite any alleged policy to the contrary, comb-
binding was the method the department routinely made avail-
able to Phillips on every occasion except the one at issue here.
Whether or not the department had a policy prohibiting
inmates from using the comb-binder or prohibiting library
staff from comb-binding inmate documents is irrelevant. Such
a policy, if indeed it existed, was either routinely not enforced
or was enforced intermittently and arbitrarily at the caprice of
the individual official responding to a request for access.
[9] We have held that an inmate’s constitutional rights,
including the right of access to the courts, may be violated by
the arbitrary and selective enforcement of otherwise valid pol-
icies. For example, in Baumann v. Arizona Dept. of Correc-
PHILLIPS v. HUST 1781
tions, 754 F.2d 841, 845 (9th Cir. 1985), the state denied an
inmate a work furlough on the grounds that the policy estab-
lishing his eligibility was not part of a published regulation as
required by state law. We held that, although the publication
requirement was otherwise valid, “the state cannot arbitrarily
deny privileges based on the lack of regulations if it grants
privileges under unfiled regulations to other prisoners.” Id.We held that such selective enforcement of regulations could
constitute a violation of the inmate’s due process rights if it
resulted in a deprivation of a prisoner’s liberty interests. Id.Similarly, in Gluth v. Kangas, 951 F.2d 1504, 1508 (9th Cir.
1991), we held that arbitrarily denying access to a prison
library despite space availability could constitute a violation
of the right of access to the courts, even if the regulations
governing access were arguably facially valid.1 In more gen-
eral terms, “practices that unjustifiably obstruct the availabil-
ity of professional representation or other aspects of the right
of access to the courts are invalid.” Leeds v. Watson, 630 F.2d
674, 676 (9th Cir. 1980).
[10] Hust has offered no justification for the enforcement
of the regulation restricting access to the comb-binder on June
18 but not on any other occasion. Moreover, it was entirely
foreseeable that this arbitrary denial would obstruct Phillips’s
ability to prepare his petition and file it in a timely manner.
Hust’s refusal to permit Phillips to use the comb-binder on
June 18, when he was permitted to use it on numerous occa-
sions both before and after that date, and when he had, so far
as the record reveals, never before been denied access to it,
quite predictably interfered with his efforts to prepare his peti-
1
Other circuits have looked with similar disfavor on the arbitrary
enforcement of valid regulations. See, e.g., Reed v. Faulkner, 842 F.2d
960, 964 (7th Cir. 1988) (holding selective enforcement of hair length
rules against some groups asserting religious exemption but not others
could constitute violation of equal protection, despite the general validity
of the rules).
1782 PHILLIPS v. HUST
tion for certiorari and thereby violated his right of access to
the courts.2
[11] That Hust was unaware of the deadline for the filing
or the court in which the document was to be filed does not
affect this result. It was entirely foreseeable that denying Phil-
lips access to the comb-binder inconsistently with well-
established past practice would interfere with Phillips’s ability
to file the document in any court.
We are similarly unpersuaded by Hust’s contention that her
actions did not deny Phillips’s right of access to the courts
because the Supreme Court’s rules do not require comb-
binding. As the district court observed, the rules are less than
clear as to whether some form of binding is required in the
circumstances presented in this case, where Phillips’s petition
was too long for stapling, the method specified in the rules.
Although Hust’s suggested interpretation—that the rule per-
mits the filing of unbound petitions where stapling is
impossible—may be one reasonable view of the rule, it is not
the only reasonable interpretation. Thus, Hust’s refusal to
allow Phillips to use the comb-binder placed him in the unten-
able position of having to decide whether to file the petition
on the date it was due in the hopes that it would be accepted
unbound or partially bound, or to wait until he could bind the
petition in the hopes that it would be accepted late. Because
it was Hust’s actions that placed Phillips in the position of
having to make this choice, she cannot now make the
complaint—highly speculative in any event—that Phillips
made the wrong choice.
2
In so concluding, we do not hold that inmates have the right to comb-
binding equipment, or, indeed, to any particular method of binding docu-
ments, so long as they are able to meet the filing requirements of the
courts in which they are litigating their claims. Rather, we simply reach
the unexceptional conclusion that otherwise valid prison policies may not
be selectively or arbitrarily enforced in such a way as to interfere with
prisoners’ access to the courts to pursue litigation arising from their incar-
ceration.
PHILLIPS v. HUST 1783
C.
[12] Phillips also satisfies Harbury’s third requirement that
the plaintiff have no other remedy than the relief available in
his denial of access suit. Unlike the plaintiff in Harbury, Phil-
lips has no independent tort cause of action against Hust for
the violation of his rights. Moreover, even if state law permit-
ted Phillips to file a successive post-conviction relief suit,
such a suit could not provide the relief Phillips seeks here,
namely compensation for the expense and effort of the earlier
litigation, for which any hope of vindication, however slim,
was lost as a result of the untimely filing of his petition for
certiorari.
[13] For these reasons, Hust’s arbitrary denial of access to
the only practicable binding materials available in the prison
library, and contrary to the prison’s established past practice,
violated Phillips’s right of access to the courts. Accordingly,
we affirm the district court’s grant of summary judgment to
Phillips.
III.
Hust contends that, even if her actions amounted to a viola-
tion of Phillips’s rights, the right was not clearly established,
and she is therefore entitled to qualified immunity. We disagree.3
[14] Qualified immunity protects “government officials . . .
from liability for civil damages insofar as their conduct does
not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). In Saucier v. Katz, the
Supreme Court set out a two step inquiry in determining
whether an official has qualified immunity. 533 U.S. 194, 201
(2001). First, “taken in the light most favorable to the party
3
The district court, too, rejected Hust’s claim of qualified immunity. We
review its decision de novo. Elder v. Holloway, 510 U.S. 510, 516 (1994).
1784 PHILLIPS v. HUST
asserting the injury, do the facts show the officer’s conduct
violated a constitutional right?” Id. Second, the court must
“ask whether the right was clearly established. Id. “The rele-
vant, dispositive inquiry in determining whether a right is
clearly established is whether it would be clear to a reasonable
officer his conduct was unlawful in the situation he confront-
ed.” Id.[15] Here, we have held that Hust violated Phillips’s right
of access to the courts when she arbitrarily denied him access
to the comb-binder contrary to the consistent practice of the
prison both before and after the event at issue, satisfying Sau-
cier’s first prong.
Hust argues that Phillips’s right of access to the courts was
not clearly established in this instance because no case specif-
ically requires that prison officials must provide comb-
binding to inmates filing petitions with the Supreme Court.
Whether the right at issue in a claim of qualified immunity is
clearly established is judged as of the date of the incident
alleged and is a pure question of law, which we review de
novo. Act Up!/Portland v. Bagley, 988 F.2d 868 873 (9th Cir.
1993). In Saucier, the Supreme Court held that the “clearly
established” inquiry “must be undertaken in light of the spe-
cific context of the case.” 533 U.S. at 201. Hust’s contention,
however, takes this requirement to an absurd level, which is
contrary to Saucier’s observation that when “various courts
have agreed that certain conduct is a constitutional violation
under facts not distinguishable in a fair way from the facts
presented in the case at hand, the officer would not be entitled
to qualified immunity.” Id. at 202-03. Here, faced with the
Supreme Court’s decision in Lewis and Bounds, and numer-
ous prior and subsequent cases, a reasonable officer would
know that failing to provide access to equipment and supplies
needed in order “to prepare, serve and file” court documents
would result in prisoners’ claims being “dismissed for failure
to satisfy . . . technical requirements” or would otherwise
frustrate prisoners’ litigation efforts. See, e.g., Lewis, 518 U.S.
PHILLIPS v. HUST 1785
at 351, 384. Moreover, both our case-law and the law of other
circuits holds that prison rules may not be enforced arbitrarily
or selectively in such a way as to violate prisoners’ constitu-
tional or statutory rights, including the right of access to the
courts. Gluth, 951 F.2d at 1508; Baumann, 754 F.2d at 845;
Reed, 842 F.2d at 964. Thus, both the right of access to the
courts and the right not to be subjected to arbitrary and selec-
tive enforcement of prison regulations were clearly estab-
lished at the time of Hust’s action.
The fact that no case has held specifically that prison offi-
cials must make comb-binders available does not render it
reasonable to deny access to a comb-binder when that is the
only means readily available at the facility for binding a legal
pleading, and when it had been made available repeatedly on
prior occasions, including just one week prior to the occasion
at issue, leading to a reasonable expectation that it would be
available in time for Phillips to file his petition.
[16] In addition, Hust did not deny access to the comb-
binding machine because she reasonably believed that cert.
petitions need not be bound. As Hust correctly notes, resolu-
tion of the qualified immunity question “will often require
examination of the information possessed by the . . . official.”
Anderson v. Creighton, 483 U.S. 635, 641 (1987). As she
acknowledges, she did not know that Phillips was filing a cert.
petition. She simply issued a blanket refusal to permit access
to the comb binder, regardless of the nature of the document
or the rules of any court. Moreover, her refusal was blatantly
contrary to past practice as well as state administrative regula-
tions.4 As the district court held, “a reasonable official in
defendant’s position should know that if her actions could
4
Oregon Administrative Rule 291-149-0005 directly implemented the
constitutional requirement, directing that “the Department of Corrections
satisfy its legal obligation to provide inmates meaningful access to the
courts by affording inmates reasonable access to . . . necessary supplies for
the preparation and filing of legal documents with the court.”
1786 PHILLIPS v. HUST
foreseeably result in causing an inmate plaintiff to miss a
court filing deadline or violate a published court rule, thereby
placing his claims in jeopardy of dismissal, such actions
would be unlawful under the clearly established constitutional
access to court standards set forth in Lewis.” Therefore, Hust
was not entitled to qualified immunity from Phillips’s access
to the courts claim.
IV.
Having determined that the district court properly granted
summary judgment to Phillips on the question of liability, we
must now address Hust’s contention that the district court’s
award of damages was improper. A district court’s computa-
tion of damages is a finding of fact that this Court reviews for
clear error. Amantea-Cabrera v. Potter, 279 F.3d 746, 750
(9th Cir. 2002).
[17] The purpose of § 1983 damages is to provide compen-
sation for injuries caused by the violation of a plaintiff’s legal
rights. Memphis Com. Sch. Dist. v. Stachura, 477 U.S. 299,
307 (1986). Accordingly, no compensatory damages may be
awarded absent proof of actual injury. Id. at 308 (“Where no
injury [is] present, no ‘compensatory’ damages [can] be
awarded.”). Moreover, “the abstract value of a constitutional
right may not form the basis for § 1983 damages.” Id. at 307
(citing Carey v. Piphus, 435 U.S. 247, 255 (1978)).
Hust argues that Phillips has not established that his lost
post-conviction claim had any value, and that as a matter of
law he may not recover the costs of the state-court proceed-
ings. Harbury’s requirement that the remedy sought on a
backward looking access to the courts claim must be one not
available in some other lawsuit suggests that, where a claim
has been irrevocably lost as a result of the constitutional vio-
lation, one possible measure of the remedy for the loss of
access is the remedy which would have been available on the
lost claim. See Harbury, 536 U.S. at 415, 415 n.13. Here, had
PHILLIPS v. HUST 1787
Phillips been able to present his claim to the Supreme Court,
and had he prevailed in his efforts to overturn his state court
conviction, he could have sought damages for, among other
possible causes of action, wrongful imprisonment or mali-
cious prosecution. In addition, the collateral civil conse-
quences of overturning the conviction likely have a
measurable economic value. Of course, such an outcome is
somewhat speculative,5 and in these circumstances, it would
not be inappropriate for the court, in assessing the value of the
lost claim, to evaluate the likelihood that the plaintiff would
have prevailed in the underlying litigation. See Simkins v.
Bruce, 406 F.3d 1239, 1244 (10th Cir. 2005) (“In order to
prevail on a § 1983 right of access claim and substantiate
more than nominal damages, a plaintiff may have to engage
the merits of the underlying case.”); Gentry, 65 F.3d at 560(“the chances of success [on the underlying claim] are very
relevant to the question of damages [in the access to the
courts claim]”).
[18] Here, however, Phillips requested not the economic
value of the remedy he sought in the underlying suit, but his
costs in prosecuting that suit over the course of many years,
and the district court appears to have based its damages
award, at least in part, on that request. Hust argues that,
because Phillips could not have recovered his costs had he
prevailed in the Supreme Court, he cannot as a matter of law
recover them here. This contention misapprehends the nature
of the injury Phillips asserts. Phillips is not claiming that
Hust’s actions deprived him of the opportunity to recover his
costs; rather, his claim is that he was robbed of his day in
court, of the opportunity to be heard, whether he prevailed or
not. Neither party has pointed to any authority addressing the
availability of the remedy Phillips seeks, and we have discov-
5
Of course, as in other circumstances in which the speculativeness of
the damages is the result of the defendant’s wrongful conduct, “the court
may . . . give due weight to the fact that the question was made hypotheti-
cal by the very wrong of the defendant.” Rest. 2d Torts § 774A, cmt. c.
1788 PHILLIPS v. HUST
ered none. Nevertheless, we must acknowledge that the
opportunity to press even unsuccessful suits has a value in
itself, and is constitutionally protected. See, e.g., BE & K
Const. Co. v. N.L.R.B., 536 U.S. 516, 532 (2002) (“even
unsuccessful but reasonably based suits advance some First
Amendment interests” and may not be unnecessarily bur-
dened). Awarding the costs of the underlying suit recognizes
that Phillips incurred those costs in the expectation that he
would be able to exercise those rights and press his legal con-
tentions to the full extent permitted by the law, and even if he
was ultimately unsuccessful. Hust’s actions cut his efforts
short, precluding him from realizing that expectation and
destroying the value of his cumulative litigation expenses.
Accordingly, we hold that the costs of the litigation that was
prematurely cut short by a defendant’s wrongful conduct is a
proper measure of damages in a § 1983 suit for violation of
the right of access to the courts.
Nevertheless, the district court made factual findings sup-
porting its award of damages that are insufficient to permit
adequate review of the award. “The district court’s findings
must be explicit enough to give the appellate court a clear
understanding of the basis of the trial court’s decision, and to
enable it to determine the ground on which the trial court
reached its decision.” Fed. Trade Comm’n v. Enforma Natu-
ral Prod., Inc., 362 F.3d 1204, 1216 (9th Cir. 2004) (citing
Unt v. Aerospace Corp., 765 F.2d 1440, 1444 (9th Cir. 1985))
(internal quotation marks omitted). Where the district court’s
findings are insufficient to indicate the factual basis for its
ultimate conclusion concerning damages, then its finding as to
the amount of damages is clearly erroneous. Amantea-
Cabrera, 279 F.3d at 750.
[19] Here, the district court made no findings at all as to the
basis for its valuation of Phillips’s post-conviction relief
claim, basing its award solely on Lewis’s observation that “an
arguable (though not yet established) claim [is] something of
value.” Lewis, 518 U.S. at 353. It made no findings concern-
PHILLIPS v. HUST 1789
ing the amount of Phillips’s costs in the collateral litigation
and it made no findings concerning his claims for mental or
emotional injury.6 Moreover, its remarks as to his claim to
recover the costs of the collateral litigation as damages on his
§ 1983 claim are inconsistent,7 leaving the record unclear as
to whether the damages award included those costs. Because
the district court’s factual findings were insufficiently clear
for us to determine the basis of the amount of its damages
award, we vacate the judgment and remand the case for the
district court to supplement its findings. See Alpha Distribut-
ing Co. of California, Inc. v. Jack Daniels Distillery, 454 F.2d
442, 453 (9th Cir. 1972).
V.
We AFFIRM the district court’s grant of summary judg-
ment to Phillips and denial of summary judgment to Hust on
the issue of liability under 42 U.S.C. § 1983 for Hust’s viola-
tion of Phillips’s right of access to the courts. We VACATE
the judgment and REMAND for the limited purpose of allow-
ing district court to supplement its findings regarding its
award of damages. Phillips’s motions for sanctions are
DENIED.
6
Hust argued in the district court that under the Prison Litigation
Reform Act, 42 U.S.C. § 1997e(e), damages for emotional distress are
unavailable here. She has not renewed this argument on appeal, and it is
in any case belied by our decision in Canell v. Lightner, 143 F.3d 1210,
1213 (9th Cir. 1998), in which we held that the Prison Litigation Reform
Act “does not apply to First Amendment Claims regardless of the form of
relief sought.”
7
In its post-trial findings, the court had noted that Phillips could seek
those costs in a post-judgment bill of costs, suggesting they were not
included in its damages award, yet in its ruling on Phillips’s bill of costs,
the court stated that the state-court costs had been included in the award
of damages. These two statements appear irreconcilable, and in any event,
the statement in the costs order does not constitute a finding of fact.
1790 PHILLIPS v. HUST
O’SCANNLAIN, Circuit Judge, dissenting:
I respectfully dissent from the court’s holding that prison
librarian Hust’s refusal to allow inmate Phillips access to the
prison comb-binding machine hindered his ability to file his
petition for certiorari timely in the Supreme Court. I must also
dissent from the court’s holding that Hust is not entitled to
qualified immunity.
I
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. In Lewis v.
Casey, 518 U.S. 343 (1996), the Court subsequently recog-
nized the limits of Bounds when it held that an inmate must
demonstrate that official acts or omissions “hindered his
efforts to pursue a [non-frivolous] legal claim.” Id. at 351; see
also id. at 365 (Thomas, J., concurring) (“[T]he majority
opinion . . . places sensible and much-needed limitations on
the seemingly limitless right to assistance created in Bounds
. . . .”). While Lewis recognized that the tools of litigation
must be made available when necessary to ensure “meaning-
ful access” to the courts, the majority opinion goes beyond
that to require prison officials to provide inmates with what-
ever tools seem reasonable in a given situation, even if not
necessary to vindicate the inmate’s right of action. In so
doing, today’s decision ignores the sensible limitations recog-
nized by the Supreme Court in Lewis.
A
At the outset, I note several points of agreement with the
majority. First, the court correctly recognizes that in order to
prevail on a motion for summary judgment and to merit a
PHILLIPS v. HUST 1791
remedy for a lost opportunity to present a legal claim, Phillips
must affirmatively establish three elements: (1) actual injury
in the form of a loss of a non-frivolous underlying legal
claim; (2) that official acts hindered his pursuit of the legal
claim; and (3) that he is pursuing a remedy that may be
awarded as recompense but that is not otherwise available in
a future suit. Maj. Op. at 1777-78 (citing Christopher v. Har-
bury, 536 U.S. 403, 413-14 (2002)).
I also agree with the majority that it is “arguable,” Lewis,
518 U.S. at 351, that at least one of Phillips’s claim was non-
frivolous. Maj. Op. at 1778. Specifically, I accept as non-
frivolous Phillips’s claim that the state court applied a stan-
dard that differed from that set forth in Strickland v. Washing-
ton, 466 U.S. 668 (1984). Finally, I agree with the court that
Phillips is able to point to a “specific instance” in which he
was denied access to the courts: his petition for a writ of cer-
tiorari was denied as untimely by the Supreme Court. See
Lewis, 518 U.S. at 356 (describing the loss of an actionable
claim).
B
Despite these points of agreement, I cannot agree with the
majority’s resolution of this case. Simply stated, Phillips has
failed to establish, at the summary judgment stage, that the
official actions of the prison librarian were the proximate
cause of his loss. See Arnold v. IBM Corp., 637 F.2d 1350(9th Cir. 1981) (“The causation requirement of Section 1983
is not satisfied by showing of mere causation in fact. Rather
the plaintiff must establish proximate causation.”) (internal
citations omitted); Stevenson v. Koskey, 877 F.2d 1435, 1438-
39 (9th Cir 1989).
1
In Lewis, the Supreme Court made clear that Bounds “gua-
rantee[d] no particular methodology but rather the conferral of
1792 PHILLIPS v. HUST
a capability—the capability of bringing challenges to sen-
tences or conditions of confinement before the courts.” 518
U.S. at 356 (emphasis added). Capability is defined as the
“quality or state of ability; having the physical, mental or
legal power to perform.” WEBSTER’S NINTH NEW COLLEGIATE
DICTIONARY 203 (1986). The conferral of a capability to bring
a non-frivolous legal action does not, however, require states
to turn prisoners into litigation machines. As the Supreme
Court stated in Lewis,
[Bounds] does not guarantee inmates the where-
withal 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.
518 U.S. at 355 (emphasis in original).
Thus, in Lindquist v. Idaho State Bd. of Corrections, 776
F.2d 851, 856 (9th Cir. 1985), we rejected the contention of
inmates that a prison library must contain the Pacific Reporter
2d, Shepard’s Citations and a number of other reference
books. We noted that Bounds did not require a prison to pro-
vide 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
permit pro se litigants to hand-write their pleadings.
The situation in Lindquist may be contrasted with that with
which we were presented in Allen v. Sakai, 40 F.3d 1001 (9th
PHILLIPS v. HUST 1793
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 held:
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 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 their right of access
to the courts. The result in Allen is thus unremarkable. See
also 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 latter type of claim, we have declined to read
into the Constitution any specific minimum requirements
beyond those mentioned in Bounds itself.”) (emphasis added);
OR. ADMIN. R. 291-139-0005 (requiring prison officials to
make available “necessary supplies for the preparation and
filing of legal documents”) (emphasis added).
Our precedents, therefore, require that for Phillips to pre-
vail on summary judgment, he must make a showing that use
of the comb-binding machine was a necessary pre-requisite to
allowing him “meaningful access” to the courts.
2
The majority opinion appears to acknowledge that what is
required is the provision of tools sufficient to afford a “capa-
1794 PHILLIPS v. HUST
bility” of litigation, but then, with a magician’s sleight of
hand, the focus of the inquiry is shifted to the apparent “arbi-
trary” nature of Hust’s denial. The majority gets it mostly cor-
rect, however, in its initial statement that “[n]evertheless, it
remains true that some means of preparing legal documents,
including a means of binding them where required, must be
made available.” Maj. Op. at 1780 (emphasis added). Unfor-
tunately, rather than adhering to the clear limits established by
Supreme Court precedent, the majority here mandates prison
employees to anticipate when the denial of unnecessary ser-
vices will so fluster an inmate that his filing, though in no
way actually frustrated, might be delayed. Such a rule
amounts to an unreasonable demand that prison librarians be
not only experts on their actual duties, but also clairvoyant.
Supreme Court Rule 33.2 governs the form of documents
to be filed with the Court. It provides that every document
“shall be stapled or bound at the upper left-hand corner.” In
turn, Supreme Court Rule 39.3 governs proceedings in forma
pauperis and requires every document presented by a party to
be “prepared as required by Rule 33.2 (unless such prepara-
tion is impossible).” (emphasis added) It further requires that
the petition be legible, obviously expecting most filings to be
handwritten. Finally, the rule directs the Clerk to “mak[e] due
allowance for any case presented under this Rule by a person
appearing pro se.”
Three simple points may be made. First, while an initial
reading suggests that stapling or binding is affirmatively
required, Rule 39.3 provides an exception when such methods
are not possible. Second, Rule 33 requires the staple or bind-
ing to be at the upper left-hand corner. A comb-binding
machine, in contrast, binds an entire side of a petition, and
thus does not even come within the rule. Finally, the rule spe-
cifically mandates leniency for pro se litigants, many of
whom the Court is fully aware are indigent prisoners.
PHILLIPS v. HUST 1795
The district court’s grant of summary judgment, however,
did not take into account the flexible—or at least disputed—
nature of these rules. The district court ruled:
[Hust’s] actions caused him to face the difficult
choice of violating a Supreme Court Rule by submit-
ting a partially bound brief, or missing his deadline.
Plaintiff chose to comply with the Supreme Court
Rule, and missed the filing deadline; his petition was
subsequently denied as untimely by the Supreme
Court. Viewing the facts in a light most favorable to
plaintiff, it appears from the factual allegations and
from the record on summary judgment that defen-
dant violated plaintiff’s constitutional right to access
the courts.
The district judge’s conclusion is incorrect.1 The applicable
Supreme Court rule neither requires nor allows comb-binding.
The only way a comb-bound petition would be compliant
with the clear text of this rule is by virtue of the impossibility
clause in Rule 39.3. Reference to that rule, however, would
defeat Phillips’s claim that the rule is clear and provides for
no exceptions. See Allen, 40 F.3d at 1006. Thus, there is no
nexus between the denial of access to the comb-binding
machine and the late filing of Phillips’s petition. It was only
Phillips’s dogged insistence on this particular means of bind-
ing that caused his petition to be filed late and therefore rejected.2
1
We review the grant of summary judgment de novo, Messick v. Hori-
zon Industries, Inc., 62 F.3d 1227, 1229 (9th Cir. 1995).
2
The majority contends, “Hust’s refusal to allow Phillips to use the
comb-binder placed him in the untenable position of having to decide
whether to file the petition on the date it was due in the hopes that it would
be accepted unbound or partially bound, or to wait until he could bind the
petition in the hopes that it would be accepted late.” Maj. Op. at 1782.
While this is literally true because the rules do not guarantee under what
circumstances the clerk will deem proper presentation to have been “im-
possible,” this is simply the nature of a general standard and cannot be
grounds for finding the denial of access to the courts. To do so would be
1796 PHILLIPS v. HUST
The district court’s erroneous conclusion that Phillips was
attempting to bind his petition in accordance with Supreme
Court Rules finds no support in the record or in the text of the
provisions. Accordingly, Hust’s actions cannot be the proxi-
mate cause of Phillips’s alleged loss.
Second, the record also reflects that the district court’s
analysis of the merits of the issue was permeated with incor-
rect presumptions for the summary judgment stage of this
case. While the above-quoted analysis was performed as the
first step of the Saucier qualified-immunity analysis, see Sau-
cier v. Katz, 533 U.S. 194 (2001), the district court expressly
referred back to it with a supra citation in concluding that
summary judgment for Phillips was warranted. On the merits
of plaintiff’s summary judgment motion, however, it is well-
established that the evidence must be viewed in a light most
favorable to the non-moving party, in this case Hust. See T.W.
Electric Service, Inc. v. Pacific Elec. Contractors Ass’n, 809
F.2d 626, 630-31 (9th Cir. 1987) (“[A]t the summary judg-
ment, the judge must view the evidence in the light most
favorable to the nonmoving party . . . [I]f a rational trier of
fact might resolve the issue in favor of the nonmoving party,
summary judgment must be denied. Inferences must also be
drawn in the light most favorable to the nonmoving party.”).
The court’s analysis of the merits of the issue, however,
which expressly incorporated its earlier analysis and not much
more, viewed the facts in a light most favorable to plaintiff.
A de novo review of the record shows that Phillips failed
to establish there were no disputed material issues of fact.
There was not “but one reasonable conclusion as to the ver-
to directly countermand the two explicit provisions in the Supreme Court
rules that suggest leniency for pro se litigants. The argument also ignores
that Phillips would have assumed an even greater risk in filing a comb-
bound cert. petition when the rules explicitly require binding at the upper
left-hand corner of the document.
PHILLIPS v. HUST 1797
dict” in this case, Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986), and thus summary judgment was not appro-
priate.
3
The majority’s focus on the allegedly arbitrary manner in
which the prison enforced its policy against allowing inmates
to use the comb-punch is thus beside the point. Under Chris-
topher v. Harbury, 536 U.S. at 413-14, Phillips must show
that even an unreasonable prison policy was the cause of his
loss. Our decision in Gluth v. Kangas, 951 F.2d 1504, 1508
(9th Cir. 1991), cited by the majority, does not counsel differ-
ently. There, we simply recited the unremarkable conclusion
that the existence of a law library does not provide for mean-
ingful access when inmates are not afforded, in part because
of arbitrary denials, a reasonable amount of time to use the
facility. Id. Moreover, Gluth was a case decided before Lewis,
when our circuit law did not require inmates alleging “core”
Bounds violations to establish actual injury. Id. at 1509 n. 2;
see also Sands, 886 F.2d at 1171.
C
Today’s holding may seem eminently reasonable to some.
As the court notes, “[W]e simply reach the unexceptional con-
clusion that otherwise valid prison policies may not be selec-
tively or arbitrarily enforced in such a way as to interfere with
prisoners’ access to the courts to pursue litigation arising from
their incarceration.” Maj. Op. at 1782 n.2 (emphasis added).
In applying such an approach, however, the majority focuses
only on the apparent arbitrary nature of Hust’s denial to the
detriment of the causation analysis. Because I am persuaded
that the majority errs in applying its own rule, and because I
believe the record does not establish, at the summary judge-
ment stage, that Hust’s actions were the proximate cause of
Phillips’s injury, I would reverse the grant of summary judg-
ment and remand for trial.
1798 PHILLIPS v. HUST
II
Nor am I persuaded by the majority’s view of Hust’s quali-
fied immunity claim.
A
A state officer is not protected by qualified immunity
where he or she has violated a clearly established constitu-
tional right. Under Saucier v. Katz, 533 U.S. 194 (2001),
“[t]he relevant, dispositive inquiry in determining whether a
right is clearly established is whether it would be clear to a
reasonable officer his conduct was unlawful in the situation
he confronted.” Id. at 201; see also Anderson v. Creighton,
483 U.S. 635, 640 (1987) (“The contours of the right must be
sufficiently clear that a reasonable official would understand
that what he is doing violates that right.”). Although the
author’s subjective intent is irrelevant, id. at 641, the informa-
tion actually possessed by the officer is relevant to this deter-
mination. Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per
curiam).
The Lewis court 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 2180. Instead, the
right vindicated by Bounds was a right of “meaningful access
to the courts.” Id. Thus, the question before us is whether a
reasonable prison official would believe that denying access
to the prison comb-binding machine would violate an
inmate’s right of access to file a brief for a writ of certiorari
in the Supreme Court of the United States.
B
There are three key facts that establish Hust’s entitlement
to qualified immunity. First, despite her unfamiliarity with the
explicit holding of Lewis v. Casey, she was clearly aware of
her affirmative duty to aid inmates in the filing of legal docu-
PHILLIPS v. HUST 1799
ments.3 She stated that her job was not to provide legal assis-
tance to inmates, but instead to supervise inmates in accord
with 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 Correc-
tions to satisfy its legal obligation to provide 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 prepara-
tion and filing of legal documents . . . .”
OR. ADMIN. R. 291-139-0005. That Hust was aware of this
policy requiring her to aid in the preparation of legal materials
is not disputed in the record.
3
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(1996).” That statement, when read in context, merely denies a precise
knowledge of the Lewis case. It in no way suggests that Hust was “will-
fully blind” to the requirement that the basic supplies of litigation be
afforded to inmates. Indeed, in the very same affidavit, Hust asserts that
part of her position is to supervise inmates “in accordance with the ODOC
Administrative Rules governing “Legal Affairs (Inmate),” which requires
prison officials to make available “necessary 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 as much. See Cox v. Roskelley,
359 F.3d 1105, 1115 n. 1 (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 rea-
sonable person in the defendant’s position should know about the constitu-
tionality of the conduct. The unlawfulness must be apparent.”). The
context of Hust’s statements makes clear that she was generally knowl-
edgeable about what was required of her as a law librarian. Nothing more
is required.
1800 PHILLIPS v. HUST
Second, 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 his petition was
due.
Finally, the record establishes that Hust was knowledgeable
about filing requirements in courts. Hust stated in her affidavit
that in her experience 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 major-
ity opinion itself recognizes before ultimately dismissing her
interpretation of the rules as “not the only reasonable interpre-
tation.” Maj. Op. at 1782. Furthermore, it is not disputed that
Hust “even contacted Trent Axen, Law Librarian at the Ore-
gon 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 is ample
proof of the reasonableness of Hust’s actions.
The “unlawfulness” of Hust’s actions is simply not appar-
ent. Anderson, 483 U.S. at 640. It was not an unreasonable
reading of the rules of the Supreme Court to conclude that
they do not require, nor even allow, the comb-binding of peti-
tions. Furthermore, in light of the general tenor of Lewis v.
Casey and our previous cases which have held that only basic
legal supplies, and not unnecessary amenities, are to be pro-
vided to inmates, see Sands v. Lewis, 886 F.2d at 1170, Hust’s
denial of access was not “willfully blind” to the requirements
of law. Accordingly, it was “objectively legally reasonable,”
even if ultimately mistaken, Anderson, 483 U.S. at 641; Act
Up!/Portland v. Bagley, 988 F.2d 868, 872 (9th Cir. 1993),
PHILLIPS v. HUST 1801
for Hust to conclude that her denial of access to the comb-
binding machine would not hinder Phillips’s “capability” to
file his petition. She is therefore entitled to qualified immu-
nity. I respectfully dissent from the court’s holding otherwise.