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.