
USCA1 Opinion

	




          October 8, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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.                 ________                                         -3-
