                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                     December 4, 2006
                            FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                        Clerk of Court



    TIM O TH Y JO H N K EN N ED Y ,

                Plaintiff-Appellant,

    v.                                                  No. 06-1160
                                             (D.C. No. 04-CV-1706-EWN-BNB)
    OFFICER LA KE,                                       (D . Colo.)

                Defendant-Appellee.



                             OR D ER AND JUDGM ENT *


Before T YM KOV IC H, A ND ER SO N, and BALDOCK , Circuit Judges.


         Timothy John Kennedy, an inmate in the custody of the Colorado

Department of Corrections (C DOC), appears pro se to appeal the dismissal of his

42 U.S.C. § 1983 claim against CDOC Officer Danny Lake. Although Kennedy

asserts a host of violations, the thrust of his complaint alleges that Officer Lake

violated his constitutional right of access to the courts by denying him a contact




*
       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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
visit with a privately retained investigator. The district court dismissed the case

because Kennedy failed to plead an actual injury and therefore lacked standing.

W e have jurisdiction under 28 U.S.C. § 1291, and we affirm.

                                   I. Background

      K ennedy is serving a sentence for a 1997 double homicide conviction. O n

August 9, 2002, Kennedy was incarcerated at CDOC’s Centennial Correctional

Facility and was scheduled to meet with a privately retained investigator, M ichael

M artinez. W hen M artinez arrived at the prison, he was informed by Officer Lake

that he and Kennedy would be given a non-contact interview room that required

them to communicate through a glass partition via a monitored telephone

connection. At some point, Kennedy requested a contact interview room.

Initially, Officer Lake agreed, but first requested to inspect certain legal papers

Kennedy intended to give to M artinez. Kennedy claims he handed the papers to

Officer Lake believing that he would merely “shake any papers for contraband,

and then return them.” R. Doc. 3, Sec. C at 2. Instead, Kennedy alleges “Officer

Lake leaned up against a table and started to compleatly [sic] read [his three]

typed pages of legal documents.” Id. at 4-5. After approximately fifteen to

twenty seconds, Kennedy asked Officer Lake to return the papers. Officer Lake

complied, but then refused to allow the contact visit and instead required

Kennedy and M artinez to continue using the monitored, non-contact interview

room. This incident precipitated Kennedy’s suit.

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      Before a magistrate judge, Kennedy argued that Officer Lake’s denial of a

contact visit violated his constitutional right of access to the courts. Officer Lake

countered with a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) for failure

to state a claim. The magistrate judge recommended that the motion be denied,

but the district court rejected that recommendation. Reasoning that Kennedy

failed to assert any actual injury given that he was permitted to meet with

M artinez, albeit through a glass partition, the court ruled that Kennedy lacked

standing. R. Doc. 104 at 7. Accordingly, the court granted the motion to dismiss.

This appeal followed.

                                   II. Discussion

      W e review de novo a district court’s dismissal pursuant to Rule 12(b)(6) for

failure to state a claim upon which relief can be granted. Stidham v. Peace

Officer Standards & Training, 265 F.3d 1144, 1149 (10th Cir. 2001). Under Rule

12(b)(6), a complaint should not be dismissed for failure to state a claim “unless

it appears beyond doubt that the plaintiff can prove no set of facts in support of

his claim which would entitle him to relief.” Hall v. Bellmon, 935 F.2d 1106,

1109 (10th Cir. 1991) (quotation omitted). In making this determination, a court

must presume that “plaintiff’s factual allegations are true and construe[] them in

the light most favorable to the plaintiff.” Id. At the same time, the court should

construe a pro se plaintiff’s pleadings liberally, holding them “to a less stringent

standard than formal pleadings drafted by lawyers.” Id. at 1110.

                                          -3-
      “It is now established beyond doubt that prisoners have a constitutional

right of access to the courts.” Bounds v. Smith, 430 U.S. 817, 821 (1977). This

right extends to civil rights claims arising under 42 U.S.C. § 1983, White v.

Colorado, 157 F.3d 1226, 1233 (10th Cir. 1998), and may require that prison

officials provide prisoners with adequate law libraries or adequate assistance from

persons trained in the law, Bounds, 430 U.S. at 828. Notwithstanding this right,

however, an inmate alleging a constitutional violation must demonstrate that he

suffered actual injury. Lewis v. Casey, 518 U.S. 343, 349 (1996). As the

Supreme Court explained in Lewis, the actual injury requirement derives from the

doctrine of standing, which seeks to constrain courts to their proper role of

providing relief to claimants who have suffered, or will imminently suffer, actual

harm, without usurping the political branches’ authority to administer government

institutions. Id. at 349-50. W ere the actual or imminent injury requirement

absolved, courts of law would find themselves enmeshed in this administrative

function of the other branches. See id. at 350.

      Here, Kennedy lacks standing because he has suffered no actual harm.

Indeed, Kennedy concedes that Officer Lake permitted him to meet with

M artinez; his only allegation of harm is that they were required to meet in a

non-contact interview room. Although Kennedy insists his Sixth Amendment

right to counsel entitled him to a confidential, contact meeting with M artinez, the

Sixth Amendment does not create such a per se rule of entitlement. See M ann v.

                                         -4-
Reynolds, 46 F.3d 1055, 1060 (10th Cir. 1995) (“[T]he Sixth Amendment does not

require in all instances full and unfettered contact between an inmate and

counsel.”). Kennedy has failed to plead an actual injury and therefore does not

have standing to bring this suit. The district court was correct to dismiss the

claim.

                                  III. Conclusion

         The judgment of the district court is AFFIRM ED. All outstanding motions

are DENIED as moot.


                                                     Entered for the Court



                                                     Bobby R. Baldock
                                                     Circuit Judge




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