           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                        December 23, 2009
                                     No. 09-20390
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

PATRICIA SPENCER PATTERSON,

                                                  Plaintiff-Appellant

v.

HARRIS COUNTY JAIL,

                                                  Defendant-Appellee


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:09-CV-1516


Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
       Pro se and in forma pauperis inmate Patricia Spencer Patterson
(Patterson), SPN # 00252539, appeals the sua sponte dismissal of her 42 U.S.C.
§ 1983 claim for denial of access to courts for failure to exhaust administrative
remedies pursuant to 42 U.S.C. § 1997e(a) and failure to state a claim upon
which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). She also
moves this court to appoint appellate counsel.



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                    No. 09-20390

      Patterson acknowledged on the face of her complaint that she had not
exhausted her administrative remedies, and in support of her claim that she was
denied access to courts, Patterson alleged that she was denied access to the law
library on three occasions. Patterson argues on appeal that she should have
been allowed to amend her complaint prior to its dismissal.
      A civil rights plaintiff should be given an opportunity to amend her
complaint before it is dismissed for failure to state a claim. Bazrowx v. Scott,
136 F.3d 1053, 1054 (5th Cir. 1998). Any error, however, may be harmless if the
plaintiff has alleged her “best case.” Id. at 1054.
      A dismissal under § 1915(e)(2)(B)(ii) for failure to state a claim upon which
relief may be granted is reviewed under the same de novo standard as a
dismissal under Federal Rule of Civil Procedure 12(b)(6). Black v. Warren, 134
F.3d 732, 733-34 (5th Cir. 1998). “The complaint must be liberally construed,
with all reasonable inferences drawn in the light most favorable to the plaintiff.”
Woodard v. Andrus, 419 F.3d 348, 351 (5th Cir. 2005). “To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to
‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct.
1937, 1949 (2009) (citation omitted).
      Prisoners have a constitutional right to access the courts. Bounds v.
Smith, 430 U.S. 817, 821 (1977). However, “Bounds did not create an abstract,
freestanding right to a law library or legal assistance.” Lewis, 518 U.S. at 351.
To prevail on a claim of denial of access to courts, a prisoner must show actual
injury. Id. at 349-52.
      Although Patterson alleged that she had been denied access to the law
library on three occasions, she failed to allege in the district court or in this
Court that she had suffered an actual injury. Her failure to allege actual injury
is therefore fatal to her “denial of access to courts” claim. Id. Thus, the district
court did not err by dismissing this claim for failure to state a claim upon which
relief may be granted. Moreover, because Patterson has set forth her “best case,”

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                                 No. 09-20390

it was harmless error for the district court to dismiss her case without allowing
Patterson an opportunity to amend. Bazrowx, 136 F.3d at 1054.
      Finally, Patterson has moved this court to appoint appellate counsel. A
plaintiff may request the appointment of counsel under 28 U.S.C. § 1915(e)(1),
the federal statute governing proceedings in forma pauperis. That section
provides that this court may appoint an attorney “to represent any person
unable to afford counsel.” Counsel is generally appointed under § 1915(e)(1) only
in “exceptional circumstances.” Santana v. Chandler, 961 F.2d 514, 515 (5th Cir.
1992); Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982).
      In ruling on such requests in a § 1983 case, a district court must consider:
(1) the type and complexity of the case; (2) whether the indigent is capable of
adequately presenting her case; (3) whether the indigent is in a position to
investigate adequately the case; and (4) whether the evidence will consist in
large part of conflicting testimony so as to require skill in the presentation of
evidence and in cross examination. Ulmer, 691 F.2d at 213. Although not all of
these considerations apply to requests for appellate counsel, “the duty to
consider the appellant’s ability to present fairly his or her case is the same.”
Dilworth v. Box, No. 94-41088, 1995 WL 295885, at *4 (5th Cir. April 20, 1995)
(unpublished). Patterson has failed to set forth “exceptional circumstances” that
warrant appointment of counsel here, and, as such, her motion is denied.
Santana, 961 F.2d at 515.
      JUDGMENT AFFIRMED; MOTION DENIED.




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