UNITED STATES COURT OF APPEALS
Filed 12/17/96
TENTH CIRCUIT
HAROLD GRAHAM,
Plaintiff-Appellant,
v.
No. 96-1241
KATIE BAXTER, Law Librarian
(D.C. No. 96-B-625)
CCF; ANNETTE PORTER, Law
(D. Colo.)
Librarian CCF; BRAD ROCKWELL,
Staff Attorney, Director of Legal
Services CDOC; MARK MICKINNA,
Warden, CTCF,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, KELLY and LUCERO, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions 10th Cir. R. 36.3.
therefore ordered submitted without oral argument.
Harold Graham filed this civil rights action claiming that defendants
violated his constitutional rights by refusing to copy a 38-page transcript which
he allegedly needed to file as evidence in his pending habeas action. The district
court dismissed the action as legally frivolous. It then denied Mr. Graham
informa pauperis status on appeal on the ground that he failed to submit a
certified copy of his prison trust fund account as required by 28 U.S.C. §
1915(a)(2). 1
On appeal, Mr. Graham renewed his motion to proceed informa pauperis
and filed a certified copy of his prison trust account. That account shows that he
has had an average monthly balance of a negative $880.95 for the previous six
months period. He has therefore shown a financial inability to pay a filing fee.
See § 1915(b)(4). However, in order to succeed on his motion, Mr. Graham must
show both an inability to pay the fee and the existence of a nonfrivolous issue that
states a claim on which relief can be granted. § 1915(e)(2).
In a careful and thorough opinion, the district court analyzed Mr. Graham’s
contention that he was being denied access to the courts because of defendants’
1
Proceedings in forma pauperis under 28 U.S.C. § 1915 were amended by
the Prison Litigation Reform Act of 1995, Pub. L. No. 104-134 § 804, 110 Stat.
1321-73 to 1321-75 (Apr. 26, 1996). We cite in this order to the amended version
now in effect.
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refusal to copy a transcript Mr. Graham allegedly needs as evidence in his habeas
case. The district court correctly concluded that Mr. Graham has recourse in his
habeas action for procuring the transcript if he can establish its necessity. Mr.
Graham has thus failed to show actual injury from the alleged deprivation, which
is required to establish a constitutional claim for denial of access to the courts.
Lewis v. Casey, 116 S. Ct. 2174, 2180 (1996). Because Mr. Graham has failed to
state a claim on which relief may be granted, we deny his motion for leave to
proceed on appeal without prepayment of costs or fees. Appeal dismissed.
ENTERED FOR THE COURT
Stephanie K. Seymour
Chief Judge
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