Suit Against Prison Law Librarian Dismissed: Another Pearson v. Callahan Disaster

Phillips v. Hust, No. 04-36021 (9th Cir. Dec. 2, 2009) (here):

We consider whether a prison librarian is entitled to qualified immunity from suit alleging a constitutional tort for hindering an inmate’s ability to comb-bind a petition for a writ of certiorari to the Supreme Court of the United States.
My initial reaction was, "No way."  My ignorance was exposed by the case history.  The prisoner initially won on summary judgment.  A panel of the Ninth Circuit Court of Appeals initially affirmed:
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, dissented 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).
Id. at 15749-50.  On remand, the prisoner loses 3-0. Judge Diarmuid F. O’Scannlain plays a dirty trick.  Using Pearson v. Callahan, he refuses to determine whether the prisoner's rights had actually been violated - "gladly," even:
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 rightis not clearly established but far from obvious whether in factthere 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 constitutional rights. Rather, we proceed directly to ask whether Hust is entitled to qualified immunity.
Id. at 15754.  Great.  So it's a tough issue.  Now someone else is going to have to litigate it.  And guess what that lawyer and his client will win - a booby prize!

Think about it.  A prisoner asks you to sue, raising the issue presented in Phillips v. Hust.  Will you take the case?  You'd be crazy to.  It's guaranteed that you won't collect any fees.  How so?

On the next go around, the panel might actually decide the issue in favor of the prisoner.  Yes, a prisoner has a right to use a comb-binding machine.  But guess what: That right was not clearly established.  See Phillips v. Hust.  (See this post.)

Pearson v. Callahan is thus having the exact effect we said it would: It's preventing the law from becoming clearly established.