Frank Marvin Phillips v. Lynn Hust, Library Staff

1070 of bonds and the issuance

challenge PHILLIPS, Frank Marvin challenge all other standing to denial of Plaintiff-Appellee, in tax originate that does spending remaining issues addressed The revenue. appeal. are not on order Library Staff, Lynn HUST, (D.Haw. II, F.Supp.2d 1090 Defendant-Appellant. Arakaki 2002), and reversed part affirmed in is No. 04-36021. standing to reverse Plaintiffs’ part. We Appeals, tax of state United States Court appropriation challenge grant Ninth We reverse Circuit. revenue to the OHA. appropriation challenge standing Dec. 2005.* Submitted affirm We of tax revenue DHHL/HHC. 13, 2007. Filed Feb. bene- standing to sue as trust the denial of the mo- affirm the denial ficiaries. We revenue claim the tax

tion to dismiss question political under the

against OHA the denial of reverse

doctrine. We the tax revenue claim to dismiss

motion remaining is- The

against DHHL/HHC. appeal. not on in that order are

sues III, F.Supp.2d

Arakaki

(D.Haw.2002), is different affirmed IV, F.Supp.2d Arakaki

grounds. V,

(D.Haw.2003), and Arakaki (D.Haw.2003), are af-

F.Supp.2d 1129 VI, F.Supp.2d

firmed. Arakaki

(D.Haw.2004), remaining All reversed. affirmed.

orders in this case are their own costs on shall bear parties

appeal. PART, IN REVERSED

AFFIRMED PART,

IN AND REMANDED. 34(a)(2). R.App. Fed. P. panel unanimously finds this case suit- *This argument. See oral able for decision without Hardy Myers, General, Attorney May Williams, General, H. Solicitor Rich- and Wasserman, D. ard Attorney-in-Charge, Unit, Salem, Appeals Civil/Administrative OR, for the appellant. se, Salem, Phillips, pro

Frank Marvin OR, for appellee. BROWNING, NELSON,

Before: D.W. O’SCANNLAIN, Judges. and Circuit BROWNING, Judge: Circuit case, In this we must decide whether the arbitrary by prison denial officials of ac- routinely to cess materials the made preparation available to inmates for the of legal of an documents constitutes denial of inmate’s access to the courts where it results the loss of a claim. hold that it does. We Defendant-Appellant Lynn ap- Hust peals grant summary judgment Phil- Plaintiff-Appellee favor of Frank M. claim lips, Jr. on his under U.S.C. § for and the denial of her motion summary im- judgment asserting qualified certiorari, machine comb-binding addition, but the dis- appeals Hust munity. moved, was unable had he been award. damages court’s trict days Three on that date. petition bind the jurisdiction under 28 U.S.C. have We later, Phillips sent anoth- on June judg- appeal this final § 1291 over stat- to “Ms. er kite directed Rossi/Hust” court. affirm the the district We ment “I a brief that needs ing have summary judgment grant Please schedule and sent soon. me bound immunity qualified the denial Hust’s briefly use for MORNING claim, the case to and we remand (1 do.).” This punch hour will kite comb find- further factual court to make district not inform Hust of the deadline did damages. concerning award ings its the document wished to or that of certiorari for writ bind was I. Hust received the Court. in state court of Phillips was convicted than 2001. On June kite no later June manslaughter and sen- degree second cert, petition was day Phillips’s term of ten to an indeterminate tenced due, responded do comb Hust “[w]e with a minimum sen- years imprisonment, Evidence in bind materials inmates.” using firearm years of five tence response usual the record showed that the of the offense. the commission during In days. was 1 to a time for such kites sentence, and was Phillips completed his statement, pris- Hust sworn asserted for other incarcerated subsequently not in effect at time did on the rules post- sought state court Phillips crimes. permit inmates to bind their own comb challenging his man- relief conviction materials, past, and that the inmates grounds on the slaughter conviction filings permitted had to submit bound been coun- assistance of he received ineffective Nevertheless, staple with a or unbound. appeals his in state exhausting After sel. Hust, upon receiving this from response court, review of his to seek he intended supervisor, Phillips sent a kite to Hust’s Court, Supreme in the United States claim Gilmore, Manager with Program Services the state hoped he to show where Emergency” at inscription “Legal the had violated the Constitution courts requesting to the top access comb and preponderance a evidence applying granted request this on binder. Gilmore finding ineffective standard 25, after Hust had June one week denied he did affect assistance received to the Hust Phillips comb-binder. of his trial. outcome criminal permit Phillips to enter the did not law had a Phillips’s petition for certiorari 2001, 29, library until June at which time On June filing deadline of June materials, punched he his bound his comb 3, 2001, Phillips sent an inmate communi- Supreme petition, and filed it with (a “kite”) Fendley” to “Ms. cation directed rejected Court. Court comb-binding ma- requesting access to the petition as “out of time.” per- been past chine. had history and Hust had to bind a to use comb-binder mitted an resulting relations from inci- strained In to the Court. Oregon brief Phillips, prison in violation of dent which addition, already partially Phillips had policy, prison typewriter to draft a used and he was seek- petition, his comb-bound inquire about Group letter to the West in order to ing access to the comb binder missing sheets from li- some advance pages. an He was insert additional Misinterpreting Phil- brary’s collection. for library to the on June called for lips’s request replacement as purpose his letter sheets, satory duplicates damages, denying punitive mailed but dam- advance West library. Hust initiated disci- ages. regards Phillips’s request for against Phillips charg- plinary proceedings proceedings, the costs of the state court of a him with Unauthorized Use Com- ing proper the court observed the time for Fraud, II, of an puter Mail Disobedience seeking entry such costs was after the III, II, Disrespect and Ex- Forgery, Order judgment via a bill of costs. The district charges, All tortion II. of these classified court final judgment Sep- entered its major, rejected by hearing were 18, 2004, tember 2004. On October officer, guilty only found him of a who Phillips submitted a bill of costs. The violation, Disobedience of an Order minor district court denied the request for costs typewriter. III for unauthorized use of the on November grounds on the 4, 2002, Phillips brought suit in April On Phillips sought to only recover the costs of District Court for the the United States action, post-conviction his state court relief Oregon alleging three causes of District which the district court held were not § action under 42 one for U.S.C. action, present available as costs in the associate, freely com- impeding and which the court further stated had municate, correspond with others re- part compensatory been awarded as disciplinary initiation of lating Hust’s damages. one Hust’s violation of proceedings, courts, Phillips’s right of access to the II. relating to her denial of one for retaliation We review de novo the district court’s In mid-August access to the comb binder. summary decision on cross motions for parties both filed motions for sum- judgment. Cmty. Parents Involved in mary judgment, which the district court Schools v. Seattle School Dist. No. treated as cross-motions. The district (9th Cir.2005) (en 1162, F.3d 1172 n. 11 granted Phillips’s summary judg- court banc). governed by Our review the 31, 2003, motion on March to ment as his by same the trial court un- standard used right of access to the courts claim as to 56(c). der Fed.R.Civ.P. Suzuki Motor liability, and denied it as to his other Union, Inc., Corp. v. Consumers 330 F.3d claims. court reserved the issue of (9th Cir.2003). 1110, 1131 Rule Under damages Phillips’s access to the courts 56(c), determine, viewing we must the evi- order, In claim for trial. the same the in light dence most favorable to the summary judg- district court denied Hust’s nonmoving party, there are whether Subsequently, parties ment motion. genuine issues of material fact and wheth- Phillips’s settled two claims. other correctly applied er the district court Septem- The court held a bench trial on relevant substantive law. Id. 20, damages ber 2004 on the issues. At Under the First and Fourteenth trial, Phillips sought non-economic Constitution, Amendments to the state

damages, essentially mental and emotional prisoners have a to the distress, damages as well as economic in Casey, v. courts. Lewis 518 U.S. expenses and in the amount his costs (1996). 2174, 116 L.Ed.2d 606 S.Ct. 135 post-conviction proceedings the state court opportu to the courts means the “[AJccess attempting appeal he was to to the Su- nity prepare, serve and file whatever addition, In he preme sought puni- Court. 29, pleadings or other documents are neces damages. September tive On the court in sary appropriate or order to commence findings entered its of fact and conclusions awarding compen- prosecute proceedings affecting in or of law court $1500 1076 Phil- 384, reject argument 116 Hust’s liberty.” Id. at We personal

one’s Bailleaux, claims were frivolous. lips’s post-conviction v. (quoting S.Ct. Hatfield Cir.1961)). (9th 632, This presented for certiorari Phillips’s petition alia, to assist issue, authorities right “requires whether the state inter filing of preparation in the inmates court, finding Phillips’s counsel pris- papers providing meaningful legal pro- have no errors that “would committed libraries or ade- adequate law oners with trial, ap- a result” duced different persons from trained assistance quate of the evidence plied preponderance a Smith, v. the law.” Bounds Supreme in violation of U.S. standard (1977). 52 L.Ed.2d the state Court strictures. While standard, certainly the correct it is recited a prisoner a asserts back Where upon language based arguable, one, ward-looking denial of access claim— apply it did not it. opinion, court’s oppor a here, seeking remedy lost Phillips’s petition for certiora- Accordingly, claim—he must tunity present legal ri not frivolous. 1) loss of a “nonfrivolous” show: 2) claim; underlying the official “arguable” that in order Hust further contends 3) frustrating litigation;

acts that his claims were not to show may be awarded as recom remedy that frivolous, only Phillips must establish available pense but that is not otherwise merit, have also that Harbury, that the claims but Christopher a future suit. See 413-14, criteria for certiorari they meet one U.S. (2002). in the Court’s Rule 10. specified 10, however, clearly indicates that the Rule A. pro not control or delineated criteria do element, requiring the The first vide the measure of the Court’s discretion claim, underlying a nonfrivolous loss of pre will not granting certiorari. We standing bring goes plaintiffs to the speculate what sume a claim of standing suit. To have to assert might in its discretion have done Court courts, an inmate of access to the denial timely peti with a presented had it been injury.” must show “actual reasons,' For similar we have held tion. order U.S. that, injury, in order to establish actual inmate must injury, actual establish show, that he plaintiff post, “need not ex demonstrate that official acts or omissions on the merits would have been successful pursue to a [nonfrivo- “hindered his efforts Allen v. had his claim been considered.” 351, 353, 353, 116 legal claim.” Id. at lous] (9th Cir.1994). Sakai, 1082, 48 F.3d 1085 S.Ct. 2174 n. 3. it that where equally apparent think We courts underlying the suit an access to the Here, to allow Phil Hust’s refusal having brought claim was to be a court comb-binding machine lips access to the discretionary jurisdiction, plaintiff timely file his Phillips’s ability hindered to establish, court post, need not ex that the seeking review of his petition for certiorari its discretion and would have exercised relief action. post-conviction state court Gentry v. Duck- accepted the case. petition being in the This action resulted Cf. Cir.1995) (7th worth, 555, 65 F.3d 559 “ac rejected untimely and thus caused as injury (plaintiff adequately alleged actual respect contemplat tual prejudice with 348, discretion to 116 where state retained existing litigation.” Id. at ed or notwith- post-conviction claims address

1077 standing procedurally that claims had been inmates have no to a typewriter to defaulted). prepare legal documents where court rules permit pro litigants se to hand-write then- B. pleadings. Lindquist v. Idaho State Bd. of Harbury’s second ele Corrections, (9th Under 776 F.2d 858 Cir. ment, Phillips must show Hust’s deni 1985) (citing Twyman Crisp, 584 F.2d comb-binding al of use of the machine (10th Cir.1978)). Nevertheless, it attempt press frustrated his his claim remains true that prepar- some means of words, In other Court. documents, ing legal including a means of case, § must Phillips show required, them where must be rights of his alleged prox violation was made available. Hust, imately by caused actor. state Here, the uncontradicted evidence in the Gates, Crumpton v. See that, record despite any alleged indicates (9th Cir.1991) (citing Tay Parratt v. policy contrary, comb-binding to the lor, department routinely the method the made (1981)). The touchstone of every available to occasion ex- § proximate cause 1983 action is fore cept the one at issue here. Whether seeability. See Tahoe-Sierra Pres. Coun department policy prohibit- not the had a cil, Regional Planning Inc. v. Tahoe ing using inmates from the comb-binder or (9th Agency, 216 F.3d 784-85 Cir. prohibiting library staff from comb-binding 2000) (citing Corp., Arnold v. IBM inmate documents is irrelevant. Such a (9th Cir.1981)). 1350, 1355 F.2d existed, policy, if indeed it was either rou- argues Hust cannot show tinely not enforced or was enforced inter- filing that her caused the actions late mittently arbitrarily caprice Phillips’s petition because he could have responding the individual official to a re- an alternate means of binding used his quest for access. petition for certiorari or he have could We have held that an inmate’s constitu think submitted unbound. We rights, including tional if of access point. this contention misses the Even courts, may by an Hust’s actions were not insurmountable be violated the arbi Phillips’s attempt trary obstacle assert his and selective enforcement of other claim, effectively prevented Phillips Hust policies. example, For in Bau- wise valid cert, petition by arbitrarily from his Corrections, Dept. mann v. Arizona selectively him denying access to the (9th Cir.1985), F.2d the state de comb-binding machine. furlough nied an inmate work on the grounds establishing policy requires Constitution eligibility part published regu was not of a possible officials make it for in required lation as state We held law. file, prepare, pleadings mates to and serve that, although publication the requirement pleading and other documents essential valid, was otherwise “the state cannot arbi their causes. 518 U.S. at lack trarily deny privileges based on the of course, the Of Constitution if regulations grants privileges it under any prepa does not demand that means of regulations prisoners.” unfiled to other ration selected the inmate be made that such enforce Id. We held selective available, long so as the inmate has some regulations ment of constitute a vio could preparing means of documents that com if process rights lation of the inmate’s due ply with the of the court in his rules which Thus, prisoner’s in pending. deprivation case is we have held that it resulted of a Phil- past practice in would interfere with Similarly, Gluth liberty interests. Id. (9th any file document in lips’s ability to the Cir. Kangas, 951 F.2d arbitrarily denying ac court. 1991), we held library space avail despite a prison cess to similarly by Hust’s unpersuaded areWe of the constitute a violation ability could deny did not contention that her actions courts, if even the to the

right of access of to the courts be- Phillips’s right access argu governing access were regulations do not cause the Court’s rules general In more facially valid.1 ably comb-binding. As the district require terms, unjustifiably ob “practices that observed, are than the rules less rep availability professional of struct binding form of clear as to whether some of the aspects or other resentation presented in the circumstances required is Leeds v. to the courts are invalid.” case, Phillips’s petition was in this where (9th Cir.1980). Watson, long stapling, specified the method too justification for the Although suggested has offered no in Hust’s Hust the rules. restricting regulation of the interpretation permits enforcement the rule —that on June 18 but stapling access to the comb-binder filing petitions of unbound where Moreover, it not on other occasion. be one reasonable view impossible may — arbitrary entirely foreseeable this rule, only was it is not the reasonable ability to Phillips’s would obstruct Thus, denial refusal to al- interpretation. Hust’s timely it in a prepare petition his and file placed Phillips low to use the comb-binder permit Phillips refusal to manner. Hust’s having position him in the untenable to use the comb-binder on June when petition decide whether file the permitted to use it on numerous he was that it hopes date it was due would date, both before and after that occasions bound, accepted partially unbound or or be had, he so far as the record when petition to wait until he could bind reveals, never before been denied access to hopes accepted that it would be late. it, quite predictably interfered with his actions that placed Because it was Hust’s prepare efforts to his for certiorari Phillips position having in the to make thereby violated his of access to choice, cannot make the com- this she now the courts.2 speculative any event— plaint highly— wrong choice. made

That Hust unaware of the deadline for the or the court which the C. document was to filed does not affect entirely Harbury’s also third result. It was foreseeable satisfies this have no oth- denying Phillips requirement plaintiff access to the comb- inconsistently remedy er than the relief available binder with well-established indeed, ment, or, any particular with dis- method of 1. Other circuits have looked similar documents, arbitrary they favor on the enforcement of valid long so as are able See, Faulkner, e.g., regulations. Reed v. filing requirements to meet the of the courts (7th Cir.1988) (holding F.2d selec- litigating they their claims. Rath- in which are length against tive enforcement of hair rules er, simply unexceptional we reach the conclu- asserting religious exemption groups some may prison policies sion that otherwise valid but not others could constitute violation selectively arbitrarily not be enforced in general validity equal protection, despite the way prisoners’ such interfere with rules). pursue litigation access to courts to aris- ing from their incarceration. concluding, we In so do not hold that in- right comb-binding equip- have mates clearly plaintiff established.” Id. “The rele- of access suit. Unlike denial independent vant, no Harbury, Phillips dispositive inquiry determining in has in against of action Hust for the tort cause right clearly whether a is established is Moreover, if rights. even violation of his it whether would clear to a reasonable Phillips to file a suc- permitted state law officer his conduct was unlawful in the suit, post-conviction relief such cessive situation he confronted.” Id. provide

suit could not the relief Here, we have held that Hust violated here, namely for the compensation seeks Phillips’s right of access to the courts litigation, of the earlier expense and effort arbitrarily when she denied him access to vindication, however hope for which contrary the comb-binder to the consistent slim, untimely of the was lost as result practice prison of the both before and after of his for certiorari. issue, satisfying the event at Saucier’s first reasons, arbitrary de- For these Hust’s prong. only practicable nial of access to the argues Hust prison Phillips’s in binding materials available contrary prison’s right to the es- of access to the not clear library, courts was past practice, Phillips’s violated ly tablished established this instance because no According- to the right of access courts. specifically requires case offi ly, grant we affirm the district court’s provide must to in comb-binding cials summary judgment Phillips. filing petitions mates with the Supreme right at in a Court. Whether the issue

III. qualified immunity clearly claim of es is that, if her actions Hust contends even judged tablished is as of the date of the Phillips’s rights, amounted to a violation of alleged pure question incident and is a established, clearly was not law, we which review de novo. Act qualified is therefore entitled to immu- she Up!/Portland Bagley, 988 F.2d 868 873 nity. disagree.3 We (9th Cir.1993). Saucier, Supreme “clearly Court held that established” Qualified immunity protects inquiry light “must be undertaken liability ... “government officials from specific context of the case.” 533 U.S. at damages civil insofar as their conduct does contention, 201, 121 S.Ct. 2151. Hust’s statutory clearly not violate established however, an requirement takes this ab rights constitutional of which a reasonable level, contrary surd which is to Saucier’s person would have Harlow v. known.” that when “various courts have observation Fitzgerald, 457 U.S. 102 S.Ct. agreed that conduct a constitu certain (1982). 2727, 73 L.Ed.2d 396 In Saucier v. distinguish tional under facts not violation Katz, set out a two Court way presented able in a fair from the facts step inquiry determining whether an hand, the case at the officer would qualified immunity. official has 533 U.S. qualified immunity.” Id. at be entitled to 121 S.Ct. 150 L.Ed.2d 272 Here, 202-03, 121 S.Ct. 2151. faced with (2001). First, light in the most “taken Court’s decision Lewis and injury, party asserting favorable to the Bounds, prior and numerous and subse do the facts show the officer’s conduct cases, a quent reasonable officer would right?” violated a constitutional Id. Sec ond, failing provide access to the court must “ask whether know court, too, Holloway, rejected Elder v. 3. The district Hust's claim de novo. (1994). qualified immunity. We review its decision issued a blanket petition. simply cert. She needed order supplies equipment court docu access to the comb bind- permit and file” refusal to prepare, “to serve prisoners’ er, claims the docu- result of the nature of regardless ments would ... satisfy Moreover, for failure being “dismissed of court. ment or the rules other or would requirements” technical contrary past blatantly her refusal was litigation efforts. prisoners’ wise frustrate administrative practice as well as state 351, 384, See, at e.g., 518 U.S. held, “a regulations.4 As the district court Moreover, both our case-law 2174. position official in defendant’s reasonable circuits holds of other and the law if could fore- know that her actions should enforced arbitrari may not be prison rules plain- inmate seeably causing result in an selectively way as to violate ly or such or violate filing tiff to miss a court deadline statutory prisoners’ constitutional rule, published thereby placing access to the including of rights, dismissal, of such ac- jeopardy claims 1508; Gluth, Bau 951 F.2d at courts. clearly tions would unlawful under the Reed, 845; mann, F.2d at F.2d at to court constitutional access established Thus, right of access to the 964. both the Therefore, standards set forth Lewis.” subjected to not to be courts and immuni- qualified not entitled to Hust was enforcement of arbitrary and selective access to the courts ty Phillips’s from clearly were established prison regulations claim. action. at the time of Hust’s specifical- held fact that no case has The IV. must make comb- ly officials Having determined that the dis it rea- does not render binders available granted summary properly trict court a comb-binder deny access to sonable judgment question on the readily only means avail-

when that is the liability, must now address Hust’s con we legal facility able at tention that the district court’s award of it had been made avail- pleading, and when damages improper. was A district court’s occasions, includ- prior repeatedly able computation damages finding is a of fact at just prior to the occasion ing one week reviews for clear error. this Court issue, expectation leading to a reasonable Potter, Amantea-Cabrera in time for Phil- that it be available would (9th Cir.2002). lips petition. to file his § purpose 1983 dam addition, deny Hust did not inju ages provide compensation is to comb-binding machine be access to the by plaintiffs the violation of a ries caused cert, reasonably cause she believed legal rights. Memphis Com. Sch. Dist. v. not be As Hust petitions need bound. Stachura, 477 U.S. notes, qualified correctly resolution (1986). Accordingly, 91 L.Ed.2d 249 require often ex immunity question “will compensatory damages may no be award possessed by information amination of the injury. proof ed absent of actual Id. Creighton, ... Anderson v. official.” (“Where injury no [is] 635, 641, 107 S.Ct. (1987). present, ‘compensatory’ damages no [can] acknowledges, As she awarded.”). Moreover, filing a be “the abstract she did not know that meaningful Oregon vide access to the courts Rule 291-149-0005 inmates Administrative affording directly inmates reasonable access to ... implemented the constitutional re- necessary preparation quirement, directing Department supplies for the that "the with the court.” satisfy legal obligation pro- documents Corrections its right may very of a constitutional are question claim] value relevant to the § damages.” form the basis for Id. damages the [in access to the courts Carey claim]”). (citing 106 S.Ct. 2537 247, 255, Piphus, 435 U.S. 98 S.Ct. Here, however, Phillips re (1978)). 55 L.Ed.2d 252 quested not the economic value of the rem argues Phillips Hust that has not estab- edy sought suit, he in the underlying but post-conviction lished that his lost claim his costs in prosecuting that suit over the value, had and that as a matter of law of many years, course and the district may he not recover the costs of the state- court appears to have based damages its corni; proceedings. Harbury’s require- award, part, at least in request. remedy sought ment that the on a back- that, argues Hust Phillips because could looking ward access to the courts claim not have recovered his pre costs had he must be in one not available some other Court, vailed the he cannot as that, suggests where a claim lawsuit has a matter of law recover them here. This irrevocably been lost as a result of the misapprehends contention the nature of violation, possible constitutional one meas- injury Phillips the Phillips asserts. is not remedy ure for the loss of access is claiming that deprived Hust’s actions him remedy which would have been avail- opportunity costs; of the to recover his Harbury, able on the lost claim. See rather, his claim is that he was robbed of U.S. at 2179 n. day court, his of the opportunity to be Here, Phillips present had been able to his heard, prevailed whether he or not. Nei Court, claim to the and had he party ther has pointed any authority prevailed his efforts to overturn his addressing availability remedy conviction, state court he could have seeks, and we have discovered for, sought damages among possible other Nevertheless, none. acknowledge we must action, wrongful imprisonment causes of opportunity that the press even unsuc addition, prosecution. malicious itself, cessful suits has a value in and is consequences overturning collateral civil See, constitutionally protected. BE e.g., & likely the conviction have a measurable N.L.R.B., K Const. Co. v. course, economic value. Of such an out- 2390, 153 (2002) speculative,5 come is somewhat and in (“even reasonably unsuccessful but based circumstances, these it inap- would not be suits advance some First in Amendment court, propriate for the in assessing the may unnecessarily terests” and not be bur claim, value of the lost to evaluate the dened). Awarding the costs of the under plaintiff likelihood that the pre- would have lying recognizes suit incurred vailed the underlying litigation. See expectation those costs that he Bruce, Simkins v. (10th Cir.2005) (“In rights would be able to exercise those order to prevail on a press contentions full § to the ex claim of access and substanti- law, permitted by tent if ate more than and even he damages, plaintiff nominal may ultimately unsuccessful. ac engage have to the merits of the Hust’s case.”); short, underlying Gentry, 65 F.3d at tions cut his him precluding efforts (“the chances of success underlying realizing expectation [on the from and de- course, 5. Of question hypotheti- as in other circumstances in the fact was made speculativeness damages which the of the very wrong cal of the defendant.” wrongful the result of the defendant’s con- 774A, § Rest.2d Torts cmt. c. duct, may give weight "the court ... due Moreover, as to his claim its remarks litiga- his cumulative value of straying the litigation Accordingly, we hold costs of the collateral recover the expenses. tion prema- that was litigation § 1983 claim are incon- damages on his costs wrongful a defendant’s by turely cut short unclear to sistent,7 the record as leaving damages in of proper measure is conduct damages award included whether the of of the § suit for violation 1983 the district court’s costs. Because those courts. access to the insufficiently clear findings were factual the the basis of to determine for us Nevertheless, court the district award, damages we vacate amount of its supporting its award findings made factual case for the and remand the judgment the permit to that are insufficient damages of findings. supplement to its district court “The dis the award. review of adequate Distributing California, Co. Alpha See explicit findings must trict court’s of Distillery, 454 F.2d Daniel a clear Inc. v. Jack appellate court give the enough Cir.1972). (9th 442, trial basis the 453 understanding of the of decision, it to deter to enable and court’s trial court ground on which the

mine V. Comm’n Fed. Trade reached its decision.” Inc., Prod., grant F.3d court’s 362 AFFIRM the district v. Natural We Enforma Cir.2004) (9th v. (citing Unt summary Phillips 1216 and deni- judgment of (9th 1440, 1444 F.2d Aerospace Corp., 765 summary judgment to Hust on al of (internal Cir.1985)) omit quotation marks § liability under U.S.C. issue of ted). findings court’s the district Where Phillips’s right of of for Hust’s violation the factual basis are to indicate insufficient courts. VACATE the access to the We concerning dam ultimate conclusion for its REMAND for the limited judgment and amount of finding its ages, then sup- court to allowing district purpose Amantea- damages clearly erroneous. is plement findings regarding its its award Cabrera, F.3d at 750. motions for damages. Phillips’s sanctions Here, findings court made no the district are DENIED. for its

at all as to the basis valuation claim, relief bas- Phillips’s post-conviction O’SCANNLAIN, Judge, Circuit solely on Lewis’s observation ing its award dissenting: yet (though not estab- arguable that “an respectfully I dissent from the court’s lished) something of value.” [is] claim librarian Hust’s refusal holding 353, 116 2174. It 518 U.S. at to the pris- allow inmate findings concerning the amount no made comb-binding machine hindered his on litigation in Phillips’s costs the collateral for certiorari ability file concerning his findings it made no and I must also timely in Court. injury.6 for mental or emotional claims post-trial findings, the court had 7. In its noted argued the district that under in court Hust Act, post- costs in a could seek those Litigation Reform U.S.C. the Prison costs, they 1997e(e), judgment suggesting bill of were damages § distress emotional award, yet damages its not included in its in She has not renewed unavailable here. are costs, any ruling Phillips's appeal, on bill of argument and it in case is this Lightner, costs had in- v. stated that the state-court been our decision in Canell belied Cir.1998), (9th damages. two award of These in which cluded F.3d irreconcilable, appear and Litigation Act statements we that the Prison Reform held event, costs order does apply to First Claims statement not Amendment "does finding sought.” not of fact. of relief constitute regardless of the form (2) claim; holding underlying legal from the court’s that Hust frivolous dissent immunity. qualified is not entitled to official pursuit acts hindered his (3) claim; that he is pursuing a I remedy may be awarded as recom- Smith, In Bounds v. U.S. 97 pense but that otherwise available (1977), 52 L.Ed.2d 72 Su- Maj. a future Op. suit. at 1075-76 (citing preme Court held “the fundamental Christopher Harbury, constitutional of access to the courts 413-14, 153 L.Ed.2d 413 requires prison in- authorities to assist (2002)). preparation mates I also agree majority with the it meaningful legal papers by providing pris Lewis, “arguable,” 351, 518 U.S. at 116 adequate oners with law libraries or ade 2174, S.Ct. that at least Phillips’s one of quate persons assistance from trained in Maj. claim was Op. nonfrivolous. at 1076. 828, Id. at 97 In the law.” S.Ct. 1491. Specifically, I accept as nonfrivolous Phil- 343, Casey, Lewis v. 518 116 U.S. S.Ct. lips’s claim that the state court applied a 2174, (1996), 135 L.Ed.2d 606 the Court standard that differed from that set forth subsequently recognized the limits in 668, Strickland v. Washington, 466 U.S. Bounds when it held that an inmate must (1984). 104 S.Ct. 80 L.Ed.2d 674 demonstrate that official acts or omissions Finally, I agree with the court Phillips pursue “hindered his efforts to a [non- point “specific is able to to a instance” in legal claim.” Id. at frivolous] 2174; see at which he also id. was denied access to the courts: (“[T]he (Thomas, J., concurring) ma- a for writ of certiorari was jority opinion places ... sensible untimely by denied as Supreme Court. seemingly much-needed on limitations Lewis, See at 116 S.Ct. 2174 limitless in assistance created claim). (describing the loss of an actionable ”). .... recognized Bounds While Lewis that the of litigation tools must be made B necessary available when to ensure “mean- Despite points agreement, these I courts, ingful majority access” to the agree majority’s cannot with the resolution opinion goes beyond require that to stated, Simply this case. has provide officials to inmates with whatever establish, summary judg- failed to at the situation, in given tools seem reasonable stage, ment that the official actions of the if not necessary even to vindicate the in- prison librarian the proximate were cause doing, today’s mate’s of action. In so Corp., of his loss. See Arnold v. IBM ignores decision the sensible limitations (9th (“The Cir.1981) F.2d 1350 causation recognized by Court in Lew- requirement of Section 1983 is not satisfied is. by showing of in fact. mere causation plaintiff proxi- Rather the must establish

A causation.”) (internal mate omit- citations outset, points At the I note several ted); Koskey, Stevenson v. First, agreement majority. with the (9th Cir.1989). 1438-39 correctly recognizes that in order to prevail summary on a motion for judgment remedy and to merit a for a opportuni- lost Lewis, In Court made claim,

ty present legal must (1) affirmatively “guarantee^] partic- clear that Bounds no establish three elements: injury actual methodology the form of a loss of a non- ular but rather the conferral Lindquist may be con- The situation capability bringing capability of a —the pre- or conditions of sentences that with which we were challenges to trasted with (9th the courts.” 518 U.S. Sakai, before confinement 40 F.3d 1001 sented Allen added). (emphasis Cir.1994). case, notice of In that Allen’s “quality is defined as Capability to the Hawaii Circuit Court appeal physical, men- ability; having the state of rejected pencil it was written because legal power perform.” WEB- tal or Allen claimed that the out- and not ink. NINTH NEW COLLEGIATE STER’S him pen deprived of ac- right denial of (1986). The conferral DICTIONARY held: cess to the courts. We bring a non-frivolous capability aof 3(a) re- Court Rule Hawaii’s Circuit not, however, require action does all “handwritten entries quires that ma- litigation into prisoners to turn states ink,” inbe black and defen- papers shall Supreme Court stated chines. As the this mandate was dants concede no ex- explicit” provided “clear and inmates guarantee does not ] [Bounds light clarity of the ceptions. to transform them- the wherewithal law, it have been pre-existing should ... The litigating engines into selves that a on apparent to the defendants ban those requires provided it to be are tools seriously hamper pens the use of would inmates need in order to attack that the the courts and an inmate’s access to sentences, collaterally, directly or their of his therefore constitute a violation challenge in order to the conditions rights under Bounds. of Impairment of their confinement. litigating capacity simply other is a stark presented 40 F.3d at 1006. Allen (and con- perfectly one of the incidental complete denial of a example of how

stitutional) consequences of conviction “clear[ly]” necessary writing spe- utensil — and incarceration. by cifically required mentioned as a tool (emphasis effectively de- the Bounds court—could original). of of access to prive an inmate their Thus, in Bd. Lindquist v. Idaho State The result in Allen is thus the courts. (9th Corrections, 776 F.2d Cir. See also Sands v. unremarkable. 1985), rejected of in- we the contention (9th Cir.1989) (“[We] library that must contain prison mates a on Bounds’s have considered claims based 2d, Shepard’s Cita- Reporter the Pacific provide ‘indi- teaching that the State must tions and a number of other reference prisoners supplies with basic which gent’ not books. noted that Bounds did We ‘meaningful.’ that their access is ensure require provide a to its inmates prison claim, type of we evaluating this latter library with “a that results in the best into the have declined to read Constitution possible (empha- to the courts.” Id. requirements minimum be- any specific added). Instead, what Bounds re- sis itself.”) yond those mentioned Bounds mini- quired was that the resources meet added); ADMIN. R. 291- (emphasis OR. mum constitutional standards sufficient (requiring prison officials to 139-0005 provide meaningful, though perhaps not “necessary supplies for the make available “ideal,” Id. thus access to courts. We documents”) preparation legal concluding that in- had no trouble also added). (emphasis typewriter mates had no to a therefore, precedents, require Our prepare their documents where the summary judg- prevail permit pro litigants se to hand- rules ment, showing make a that use of their he must pleadings. write necessary- presented by under this Rule a comb-binding per- machine was a case appearing pro se.” son “meaningful him allowing pre-requisite to the courts. access” simple points may Three be made. First, reading suggests while an initial stapling binding affirmatively or is re- majority opinion appears to ac- quired, provides Rule 39.3 ah exception required is is the when knowledge possible. what such methods are not Sec- ond, requires staple binding Rule 33 to afford a provision of tools sufficient to be at the left-hand corner. A upper then, “capability” litigation, but with machine, contrast, comb-binding binds hand, magician’s sleight of the focus of the petition, an entire side of a and thus does inquiry apparent is shifted to the “arbi- Finally, not even come within the rule. trary” nature of Hust’s denial. The ma- specifically leniency the rule mandates correct, however, in jority mostly it gets pro litigants, many se whom Court “[njevertheless, initial it its statement fully indigent prisoners. aware are prepar- means of remains true some grant summary The district court’s documents, including a means of ing legal however, judgment, did take into ac- required, them where must disputed— count the flexible—or at least (em- Maj. Op. available.” at 1077 made nature of these rules. The district court added). Unfortunately, rather than phasis ruled: limits adhering to the clear established him actions caused to face the [Hust’s] majority precedent, Court violating difficult choice of employees antici- here mandates by submitting partially Court Rule unnecessary pate when the denial of ser- brief, missing his bound deadline. so fluster an inmate that his vices will comply Plaintiff chose to with the Su- way actually in filing, though no frustrat- Rule, preme filing Court and missed the ed, might delayed. a rule be Such deadline; petition subsequently was to an demand that amounts unreasonable untimely by denied as the only experts not on prison librarians be in Viewing light the facts most Court. duties, clairvoyant. their actual also but plaintiff, appears it from the favorable governs Court Rule 33.2 allegations factual and from the record form of documents to be filed with the summary that judgment on defendant provides every It document Court. plaintiffs violated constitutional stapled upper “shall be or bound at the the courts. turn, Supreme corner.” left-hand judge’s is incor- The district conclusion in governs proceedings Rule Court 39.3 applicable Supreme rect.1 The Court rule every pauperis requires forma docu- comb-binding. requires neither nor allows presented by party “prepared ment to be way petition would only The comb-bound (unless by Rule such required 33.2 with the clear text of this compliant be preparation impossible).” (emphasis add- impossibility of clause by rule is virtue ed) requires petition It further rule, in Reference to that how- Rule 39.3. legible, obviously expecting filings most to ever, claim that the Phillips’s would defeat Finally, excep- be handwritten. the rule directs provides rule is clear and no Allen, Thus, at 1006. due allowance for tions. See 40 F.3d “mak[e] Clerk Cir.1995). (9th grant summary judgment 1. We review the of 62 F.3d 1229 novo, Industries, Inc., de Messick v. Horizon Inferences judgment of must be denied. the denial is no nexus between there favor- light must also be drawn most comb-binding machine and access to the nomnoving party.”). The It was able to the Phillips’s petition. the late issue, merits of the analysis this court’s insistence on only Phillips’s dogged however, expressly incorporated its that caused his which particular means more, not much analysis re- earlier late and therefore petition to be filed light facts in a most favorable court’s erroneous viewed the jected.2 district The plaintiff. to to Phillips attempting was conclusion in accordance with Su- bind his the record shows A de novo review of support no in the Rules finds preme Court there were failed establish provisions. or in the text record disputed material issues of fact. There no cannot be the Accordingly, Hust’s actions conclusion as was not “but one reasonable Phillips’s alleged loss. proximate cause case, v. to the verdict” this Anderson Second, reflects that the Inc., the record also Liberty Lobby, U.S. analysis of the merits of the district court’s (1986), and thus S.Ct. pre- with incorrect permeated issue was summary judgment appropriate. was summary judgment sumptions for above-quoted

stage of this case. While analysis performed step as the first majority’s allegedly focus on the analysis, qualified-immunity the Saucier arbitrary en- manner which Katz, 194, 121 see Saucier v. policy against allowing forced its inmates (2001), 2151, 150 L.Ed.2d 272 the district comb-punch to use the is thus beside the back to it with a expressly referred Harbury, v. point. Christopher Under summary in concluding citation supra 413-14, 2179, Phillips U.S. judgment was warranted. On pris- show that even an unreasonable must summary judgment plaintiffs the merits of policy was the cause of his loss. Our however, motion, it is well-established that Kangas, decision Gluth (9th light Cir.1991), must be viewed in a majority, the evidence cited non-moving party, There, differently. most favorable to the we does not counsel Service, this case Hust. See T.W. Electric recited the unremarkable conclu- simply Ass’n, library Inc. v. Elec. Contractors 809 sion that the existence of a law Pacific (9th Cir.1987) (“[A]t 626, provide meaningful F.2d 630-31 the does not for access afforded, in judge part when inmates are not summary judgment, the must view denials, arbitrary light in the most favorable to because of a reasonable the evidence facility. Id. nonmoving party the ... a rational amount of time to use the [I]f Moreover, might of fact resolve the issue in Gluth was a case decided before trier party, summary require when our circuit law did not nonmoving favor of the contends, "impossible,” majority presentation to have been this 2. The "Hust’s refusal to general simply nature of a standard and is the placed allow to use comb-binder the grounds finding cannot be the denial of position having to him in the untenable To be to access to the courts. do so would petition to file the on the date decide whether directly explicit provi- countermand the two hopes the it would be it was due in suggest sions in the Court rules that bound, accepted partially unbound or or leniency pro litigants. argument se petition wait until he could bind the in the ignores also would have assumed Maj. hopes accepted that it would be late.” greater a comb-bound an even cert, risk in literally Op. at While true be- this is explicitly require when the rules guarantee cause the rules do not under what upper corner of the at the left-hand proper document. circumstances the clerk will deem violations it would clear to a “core” Bounds whether reasonable alleging inmates 2; injury. at 1509 n. officer his conduct was unlawful actual Id. to establish 201, Sands, situation he confronted.” Id. at at 1171. also see 2151; see also v. Creigh S.Ct. Anderson C ton, 635, 640, 3034, 483 U.S. 107 S.Ct. (1987) (“The of the may eminently contours Today’s holding seem notes, right sufficiently must be clear that a rea the court reasonable to some. As official sonable would understand that unexceptional con- simply reach “[W]e doing right.”). what he is violates that Al prison policies that otherwise valid clusion though subjective the author’s intent arbitrarily en- may selectively not be or irrelevant, id. at way with forced in such a interfere actually possessed by information the offi pursue to the courts to prisoners’ cer is relevant to this determination. arising from their incarceration.” litigation v. Bryant, Hunter U.S. added). n. 2 Maj. Op. (emphasis at 1078 (1991) (per 116 L.Ed.2d 589 however, approach, an applying such curiam). majority only apparent on the focuses arbitrary nature of Hust’s denial to the The Lewis court made clear that analysis. Be- detriment of the causation right at in a as this issue case such is not majority I persuaded cause am abstract, right “an to a freestanding law rule, applying its own and because errs library assistance.” 518 U.S. at establish, I believe the record does Instead, 116 S.Ct. 2174. summary judgement stage, that Hust’s vindicated Bounds was a of Phil- proximate actions were the cause “meaningful access to the courts.” Id. injury, grant I reverse the lips’s Thus, would question before us is whether a summary judgment and remand for trial. official believe prison reasonable would denying access to the comb-

II binding machine would violate an inmate’s persuaded by majority’s Nor am I a writ right of access to file a brief for claim. qualified immunity view of Hust’s in the certiorari Court United States. A B by quali- protected A state officer is not immunity fied where he or she has violated key There are three facts that establish clearly right. constitutional immunity. established qualified Hust’s entitlement Katz, First, unfamiliarity v. with the despite Under Saucier her (2001), Casey, she was explicit holding “[t]he 150 L.Ed.2d 272 of Lewis duty relevant, determining clearly aware of her affirmative to aid dispositive inquiry filing legal inmates in the of documents.3 clearly whether a is established is suggests "willfully to reading that Hust was blind” 3. The district court’s of Hust's re- litiga- requirement supplies of sponse Phillips's interrogatory that the basic to about Lewis Indeed, clearly to inmates. in the Casey erroneous. The court tion be afforded v. affidavit, part very that of "willfully ap- same Hust asserts found Hust to be blind” to supervise position is to inmates "in accor- plicable when she "denied” the statement her law Rules dance” with the ODOC Administrative she was "somewhat familiar with Lewis 2174, (Inmate),’’ governing "Legal which re- Casey, v. 518 U.S. Affairs statement, (1996).” quires prison to make available "nec- That when officials context, reading essary supplies.” merely precise The district court’s read in denies official, way requiring a state even one knowledge the Lewis case. It in no is akin to of sonable, majority opinion as the itself rec- job provide was not to stated that her She inmates, but instead to legal ognizes ultimately dismissing assistance to before her in accord with ODOC supervise inmates only interpretation of the rules as “not the pro- Those rules Administrative Rules. Maj. Op. at interpretation.” reasonable vide: Furthermore, disputed it is not the inherent limitations

Policy: “Within Axen, Law Hust “even contacted Trent facility resources and the need of Penitentiary Oregon at the State Librarian order, security, safety, health and it is (OSP) Salem, Oregon, experi- who has policy Department of the of Correc- ence with this matter to confirm what satisfy legal obligation tions to its already knew. Mr. Axen confirmed [she] provide meaningful inmates that he does not bind inmate briefs and by affording the courts inmates reason- accepted unbound inmate court has library contract access to a law able type This of reference to an out- briefs.” services, necessary supplies legal and side, ample proof knowledgeable source is legal preparation for the of the reasonableness of Hust’s actions. ” documents.... The “unlawfulness” of Hust’s actions is R. That OR. ADMIN. 291-139-0005. Anderson, simply apparent. not 483 U.S. policy requiring of this Hust was aware at It was an 107 S.Ct. 3034. not preparation her to aid in the mate- reading of the rules of the disputed is not in the record. unreasonable rials they Court to conclude that do Second, delay responding time allow, require, not nor even the comb- Phillips’s request not was unreasonable Furthermore, petitions. light information upon based known to Hust general Casey tenor of Lewis v. Anderson, at the time. See 483 U.S. at our which have previous cases held (noting that the deter- objec- only legal supplies, and not unneces mination of whether official action is basic tively legally require amenities, “will often sary provided reasonable are to be to in possessed mates, examination the information v. at see Sands 886 F.2d actor). Here, by” undisputed the state Hust’s denial access was not “will request record shows that the June 13 fully requirements blind” to the of law. to Hust which sent did not indicate Accordingly, “objectively legally it was the date which his was due. reasonable,” mistaken, ultimately even if Anderson, 3034; Finally, the record that Hust establishes Up!/Portland Bagley, Act knowledgeable filing require- about (9th Cir.1993), for Hust to conclude ments in courts. Hust stated her affida- denial her of access the comb- that in experience vit her as a law binding machine would not Phil hinder accept pro librarian the courts se briefs lips’s “capability” comb-binding. petition. without to file his She Her view comb-binding required qualified immunity. was not was rea- is therefore entitled to law, law, required researching to be trained in the to be case but what a reasonable intimately person position familiar with the names and hold in the defendant's should ings constitutionality of decided cases. We have never know re about of the con- quired Roskelley, apparent.”). as much. See Cox v. duct. The unlawfulness must be (citing McCullough F.3d 1115 n. 1 v. The context of Hust’s statements makes clear Dist., Wyandanch generally knowledgeable Union Free Sch. that she was about (2d Cir.1999)) ("The question required is not what was of her as a law librarian. lawyer Nothing required.

what a would learn or intuit from more is court’s from the dissent respectfully I otherwise.

holding America,

UNITED STATES

Plaintiff-Appellee, FLORES-SANCHEZ, a.k.a. Jose

Jose

Mendoza-Sanchez, Defendant-

Appellant.

No. 06-10026. Appeals, States Court

United

Ninth Circuit. 9, 2007. Jan.

Argued and Submitted 15, 2007.

Filed Feb.

Case Details

Case Name: Frank Marvin Phillips v. Lynn Hust, Library Staff

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Feb 13, 2007

Citation: 477 F.3d 1070

Docket Number: 04-36021

Court Abbreviation: 9th Cir.