Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—February 13

2007—A Ninth Circuit panel rules (in Phillips v. Hust) that a prison librarian violated the constitutional rights of a prisoner, and is liable for damages to him, for failing to provide him timely access to a comb-binding machine that he wanted to use to bind his certiorari petition to the Supreme Court. Never mind, as Judge Diarmuid F. O’Scannlain points out in dissent, that Supreme Court rules for ordinary letter-size submissions require stapling or binding in the upper left-hand corner (rather than comb-binding along the left margin). As O’Scannlain observes:

Unfortunately, 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 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.

Ten judges will dissent from the Ninth Circuit’s decision to deny rehearing en banc. Ultimately, after the Supreme Court GVRs (grants review of, vacates the ruling in, and remands) the case, Judge O’Scannlain will write a new panel opinion in 2009 that rules that the prison librarian is entitled to qualified immunity.

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