                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                 UNITED STATES COURT OF APPEALS                            JUN 8 2000

                                 TENTH CIRCUIT                        PATRICK FISHER
                                                                                Clerk


 PAUL EDWIN FREE,

          Plaintiff-Appellant,

 v.
                                                        No. 99-1520
                                                    (D.C. No. 99-Z-1029)
 FEDERAL BUREAU OF PRISONS;
                                                         (Colorado)
 USP, Florence, Colorado; R. E.
 HOLT, Warden, USP, Florence,
 Colorado,

          Defendants-Appellees.



                           ORDER ON REHEARING


Before SEYMOUR, Chief Judge, EBEL and BRISCOE, Circuit Judges.


      Paul Edwin Free petitions for rehearing of our decision filed April 25,

2000, affirming the district court’s denial of his Rule 60(b) motion. For the

reasons set out below, we grant rehearing in part and address the merits of the

district court’s September 21, 1999 order dismissing Mr. Free’s lawsuit. We

affirm.

      Mr. Free, a pro se prisoner, filed this action in the District of Colorado

pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics         ,

403 U.S. 388 (1971), in June of 1999. Mr. Free also filed a motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. § 2255 in the Eastern District

of Michigan. Mr. Free’s    Bivens action alleges he was deprived of access to the

courts due to the inadequacy of the prison law library, his lack of access to the

library, and mail tampering by prison employees. These circumstances, he

asserts, made it difficult for him to pursue his section 2255 motion.

       On September 21, 1999, the district court issued an order dismissing Mr.

Free’s complaint as legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B).

Eight days later Mr. Free filed a Motion for Leave to File a Supplemental

Complaint, which was denied by minute order the same day. On October 13,

1999, he filed a Motion to Reconsider both the minute order and the order

dismissing the action. The district court denied the motion on October 20, 1999.

On November 12, 1999, Mr. Free filed an appeal of the district court’s September

21 order dismissing the action. We held that the appeal was not timely filed. Mr.

Free now petitions us for rehearing.

       We initially held that we lacked jurisdiction to consider Mr. Free’s appeal

as untimely under Federal Rule Appellate Procedure 4(a)(1)(A), which requires a

notice of appeal to be filed within 30 days from entry of the order appealed.   1
                                                                                    Mr.

Free’s petition for rehearing correctly points out that Federal Rule of Appellate




       Instead, we reviewed and affirmed the District Court’s October 20 order
       1

denying Mr. Free’s Rule 60(b) Motion to Reconsider.

                                            2
Procedure 4(a)(1)(B) controls here because he is suing a federal government

agency. Thus, Mr. Free actually had sixty days to file his appeal from the date

the district court entered its September 21 order, and his appeal was therefore

timely filed. Consequently, we grant Mr. Free’s petition for rehearing,     2
                                                                                we and

proceed to the merits of his appeal.

       We review the district court’s section 1915(e) dismissal for an abuse of

discretion. See McWilliams v. Colorado , 121 F.3d 573, 574-75 (10th Cir. 1997).

The court correctly noted that an inmate’s right of access to the courts,       see

Bounds v. Smith , 430 U.S. 817, 828 (1977), only protects an inmate’s ability to

prepare initial pleadings in a civil rights action regarding his current confinement

or in an application for a writ of habeas corpus,     see Wolff v. McDonnell , 418 U.S.

539, 576 (1974); Carper v. Deland , 54 F.3d 613, 617 (10th Cir. 1995). The

record in this case reveals that Mr. Free did in fact prepare and file a section

2255 action in the Eastern District of Michigan to which the government was

ordered to respond. Mr. Free’s ability to file an initial pleading was thus not

prejudiced by the conduct he challenges here, and his right of access to the courts

was not denied. While he asserts that conditions in the prison law library will

prejudice his ability to prepare a reply to the government’s answer in the section


       2
        “Judges are apt to be naïf, simple-minded [people] . . . . We too need
education in the obvious . . . .” Oliver Wendell Holmes, Jr., L AW AND THE C OURT
(1913).

                                             3
2255 action, his right of access to the courts does not extend to the preparation of

a reply brief. Moreover, as the Supreme Court made clear in        Lewis v. Casey , 518

U.S. 343, 351 (1996), “ Bounds did not create an abstract, freestanding right to a

law library or legal assistance, [and] an inmate cannot establish relevant actual

injury simply by establishing that his prison’s law library or legal assistance

program is subpar in some theoretical sense.”

         For these reasons, we conclude Mr. Free had no arguable claim under the

law. 3 As such, we cannot say the district court abused its discretion in dismissing

the complaint as frivolous.

         We GRANT Mr. Free’s Petition for Rehearing and          AFFIRM the judgment

of the district court.   4



                                            ENTERED FOR THE COURT


                                            Stephanie K. Seymour
                                            Chief Judge




         3
             We will not address claims that Mr. Free failed to raise in the district
court.

        We remind Mr. Free that he is obligated to continue making partial
         4

payments toward the amount of fees and costs we assessed on February 7, 2000,
until the entire amount has been paid.

                                               4
