Metropolitan News-Enterprise


Wednesday, February 14, 2007


Page 1


Ninth Circuit Panel Upholds Summary Judgment for Prison Inmate

Divided Court Says Librarian Violated Prisoner’s Access to Court By Not Allowing Use of Machine to Bind Brief


By TINA BAY, Staff Writer


Prison officials’ denial of an inmate’s request to access materials routinely made available to inmates for the preparation of legal documents violates the inmate’s right of access to the courts where it results in the loss of a legal claim, the Ninth U.S. Circuit Court of Appeals held yesterday.

In a 2-1 decision, the panel affirmed a summary judgment ruling by U.S. District Judge Ancer L. Haggerty of the District of Oregon in favor of prison inmate Frank M. Phillips Jr.

Phillips, serving a 10-year prison term on a state second degree manslaughter conviction, sued library staff member Lynn Hust alleging she violated his right of access to the courts by denying his request to use the library’s comb binding machine for his petition to the U.S. Supreme Court.

After exhausting his appeals in state court on his claim for post-conviction relief, based on the alleged ineffective assistance of counsel, Phillips, representing himself, sought Supreme Court review on the ground that the state courts applied an unconstitutional evidentiary standard in considering his ineffective assistance claim.

Phillips’ petition for certiorari was due on June 18, 2001, and on June 3, he sent a note to library staff requesting access to the comb binding machine. He was given access to the library but was unable to bind his petition because the machine had been moved.

On June 13, he sent another note to library staff, including Hust, stating generally that he had a brief that needed to be bound and sent soon. He did not mention the nature of the document or filing deadline.

Five days later, the day Phillips’ petition was due, Hust responded to his request by stating, “We do not comb bind material for inmates.” 

According to the record, Hust and Phillips had strained relations due to an incident in which Phillips used a prison typewriter in violation of prison policy.

Hust maintained that prison rules in effect at the time of Phillips’ request did not permit inmates to com bind their own materials.

Phillips sent another request and was finally given access to the comb binding machine on June 29, 2001. He bound and filed his petition with the Supreme Court but it was rejected as untimely.

Library Worker Sued

In April 2002, Phillips sued Hust under 42 U.S.C. Sec. 1983, asserting various claims, including that she denied him access to the courts. Both parties filed motions for summary judgment.

Haggerty granted Phillips’ motion as to the right of access claim and, in a subsequent bench trial on damages, awarded him $1,500 in compensatory damages.

Agreeing with Haggerty’s ruling, the appellate panel held the denial of Phillips’ comb binding request was arbitrary—in light of the fact that he had been allowed to use the comb binding machine both before and after his June 2001 request—and foreseeably obstructed his ability to prepare his petition in a timely manner.

Writing for the court, Senior Judge James R. Browning rejected Hust’s argument that she did not deny Phillips’ right of access to the courts because the Supreme Court’s rules do not require comb binding:

“…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. 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.”

Senior Judge Dorothy W. Nelson concurred in the opinion.

Dissenting, Judge Diarmuid F. O’Scannlain asserted that Phillips failed to establish the denial of his comb binding request was the proximate cause of his lost opportunity to file a Supreme Court petition.

Dissent’s Argument

The rule governing how documents must be filed with the Supreme Court neither requires nor allows comb binding, but instead requires papers to be stapled or bound at the upper left-hand corner, O’Scannlain asserted. A comb binding machine, which binds an entire side of a petition, does not even come within the rule, he said, noting the only way a comb-bound petition would be compliant with the rule is if a pro se litigant shows it is impossible to submit papers in the form required.

Phillips failed to show that use of the comb binding machine was necessary to allow him meaningful access to the courts, the judge concluded.

“It was only Phillips’s dogged insistence on this particular means of binding that caused his petition to be filed late and therefore rejected,” he said.

O’Scannlain also contended Hust was entitled to qualified immunity because she was reasonable in concluding that comb-binding was not required for the submission of pro se briefs to the court.

He remarked:

 “[T]he majority here mandates prison employees to anticipate when the denial of unnecessary services 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.”

The case is Phillips v. Hust, 04-36021.


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