Download phillipshust.pdf

Contents : 2007 WL 446593 FOR EDUCATIONAL USE ONLY --- F.3d ---- 2007 WL 446593 (9th Cir.(Or.)) (Cite as: 2007 WL 446593 (9th Cir.(Or.))) Only the Westlaw citation is currently available. United States Court of Appeals Ninth Circuit. Frank Marvin PHILLIPS Plaintiff-Appellee v. Lynn HUST Library Staff Defendant-Appellant. No. 04-36021. Submitted Dec. 9 2005. FN* FN* This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2). Filed Feb. 13 2007. Hardy Myers Attorney General May H. Williams Solicitor General and Richard D. Wasserman Attorney-in-Charge Civil/Administrative Appeals Unit Salem OR for the appellant. Frank Marvin Phillips pro se Salem OR for the appellee. Appeal from the United States District Court for the District of Oregon Ancer L. Haggerty District Judge Presiding. D.C. No. CV-01-01252-ALH. Before JAMES R. BROWNING DOROTHY W. NELSON and DIARMUID F. O'SCANNLAIN Circuit Judges. OPINION BROWNING Circuit Judge. *1 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 documents 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. Defendant-Appellant Lynn Hust appeals the grant of summary judgment in favor of Plaintiff-Appellee Frank M. Phillips Jr. on his claim under 42 U.S.C. 1983 and the denial of her motion for summary Page 1 judgment asserting qualified immunity. In addition Hust appeals the district court's damages 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 manslaughter 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 communication (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 partially comb-bound his petition and he was seeking access to 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 petition 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 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 2007 WL 446593 FOR EDUCATIONAL USE ONLY --- F.3d ---- 2007 WL 446593 (9th Cir.(Or.)) (Cite as: 2007 WL 446593 (9th Cir.(Or.))) 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 Services Manager Gilmore with the inscription "Legal Emergency" 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 combbinder. Hust did not permit Phillips to enter the law library until June 29 2001 at which time he comb punched his mate

INFO HASH : 5927c8c4403ff4afb0a6c12ce62b1a96090c08e7

Download now

File Size: 116 kb