October 8, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1341
JOHN R. MCCABE,
Plaintiff, Appellant,
v.
LEN MACH, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
Before
Breyer, Chief Judge,
Selya and Boudin, Circuit Judges.
John R. McCabe on brief pro se.
Mark P. Sutliff, Assistant Attorney General, on Motion to Join in
the Brief of appellee Richard Grelotti, for appellee, Leonard Mach.
Nancy Ankers White, Special Assistant Attorney General, and
William D. Saltzman on brief for appellee, Richard Grelotti.
Per Curiam. John McCabe, a prisoner of the commonwealth
of Massachusetts, appeals the district court grant of
defendants' motion for summary judgment on his claims
pursuant to 42 U.S.C. 1983.1 McCabe alleges that, while
incarcerated at the Treatment Center for Sexually Dangerous
Persons at Bridgewater, he was subject to mechanical
restraints in violation of the eighth amendment prohibition
of cruel and unusual punishment. He further alleges that he
was deprived of his constitutional right of access to the
courts because of restrictions placed upon his access to the
law library.
We believe that the district court's opinion adequately
sets forth the background of this case, and that McCabe's
serious assault on a guard amply justified the restraints and
disposes of the eighth amendment claim.
As for the denial of access to library facilities, the
gravamen of McCabe's claim, as set forth in his brief on
appeal, is that the restraints interfered with McCabe's
ability to use the library. Because McCabe admits that he
was not wholly denied access, he has no claim under section
1983 without a showing of actual prejudice, such as the
forfeit of a case for failure to meet filing deadlines. See
1. The district court ordered plaintiff's claims
"dismissed." However, since the court explicitly relied on
defendant affidavits and on the record, we treat its decision
as a summary judgment. See Fed. R. Civ. P. 12(b)(6).
Sowell v. Vose, 941 F.2d 32, 35 (1st Cir. 1991). But McCabe
fails to make any such allegation of actual prejudice either
in his complaint or in his brief on appeal.
Accordingly, we affirm the district court on the issue
of library access for lack of any claim of actual prejudice.
We note that McCabe is now in another institution, and has
conducted extensive litigation under new conditions, so that
the library access problem of which he complains has
apparently been resolved.
Affirmed.
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