                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             APR 16 2001
                                   TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 JIMMY LYN FARRELL,

                Plaintiff-Appellant,                       No. 00-7128
           v.                                            (E.D. Oklahoma)
 B.B. CAMPBELL, a/k/a Beatrice                         (D.C. No. 00-CV-76)
 Campbell; JIM E. HAMILTON, a/k/a
 Mike Addison; DEPARTMENT OF
 CORRECTIONS, STATE OF
 OKLAHOMA, a/k/a Ron Ward,

                Defendants-Appellees.


                                ORDER AND JUDGMENT         *




Before HENRY , BRISCOE and MURPHY , Circuit Judges.




       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)(c); 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        This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Jimmy L. Farrell is an Oklahoma state prisoner incarcerated at the Jim E.

Hamilton Correctional Center in Hodgen, Oklahoma. He is proceeding pro se and

in forma pauperis and appeals the district court’s grant of defendants’ motion to

dismiss his complaint as frivolous under 28 U.S.C. § 1915(e). Mr. Farrell’s

complaint, filed pursuant to 42 U.S.C. § 1983, claims that his right of access to

the courts was violated because he was not provided adequate access to a prison

law library and was treated rudely by library personnel. As a result, he alleges

that he was unable to pursue litigation he had pending in federal court. He seeks

$50,000 in damages and also requests injunctive relief, specifically that the law

library remain open until 10:00 p.m. during the week and that access to the law

library be provided on weekends.    See Rec. doc. 4, at ¶ G (Amended Complaint,

filed Feb. 17, 2000).

      The district court first determined that Mr. Farrell failed to make any

colorable argument that he had exhausted administrative remedies pursuant to 42

U.S.C. § 1997e(a) of the Prisoner Litigation Reform Act. The court then

dismissed the complaint on another ground, i.e., that Mr. Farrell failed to

demonstrate actual injury.   See Lewis v. Casey , 518 U.S. 343, 351 (1996) (noting

that “the inmate therefore must go one step further and demonstrate that the

alleged shortcomings in the library or legal assistance program hindered his

efforts to pursue a legal claim”). The district court determined Mr. Farrell’s


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allegations were conclusory and frivolous and did not rise to the level of a

constitutional violation.

       We review de novo a dismissal under Federal Rules of Civil Procedure

12(b)(6) for failure to state a claim, accepting the facts pleaded as true.     See

Sutton v. Utah State Sch. for the Deaf & Blind       , 173 F.3d 1226, 1236 (10th Cir.

1999). A Rule 12(b)(6) dismissal is upheld only if “it appears beyond doubt that

the plaintiff can prove no set of facts in support of his claim which would entitle

him to relief.”   Id. (internal quotation marks omitted).

       Mr. Farrell alleges he filed five grievances, labeled “Requests to Staff,”

but received no response from the Department of Corrections. He also contends

that there are no other administrative remedies he can pursue at the facility. We

need not probe further into the availability of administrative remedies because, to

state a claim for denial of access to the courts, Mr. Farrell must allege that any

denial or delay of access to the court prejudiced him in his pursuit of litigation.

See Treff v. Galetka , 74 F.3d 191, 194 (10th Cir. 1996) (citing        Twyman v. Crisp ,

584 F.2d 352, 357 (10th Cir. 1978) (denial); and        Kincaid v. Vail , 969 F.2d 594,

603 (7th Cir. 1992) (delay)).

       Under Lewis , to raise an access-to-court violation, a prisoner must

demonstrate actual injury.     See Lewis , 518 U.S. at 348-49. A prisoner “cannot

establish relevant actual injury simply by establishing that his prison’s law library


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or legal assistance program is subpar in some theoretical sense.”          Id. at 351.

Rather, the prisoner “must go one step further and demonstrate that the alleged

shortcomings in the library or legal assistance program hindered his efforts to

pursue a legal claim.”    Id.

        Mr. Farrell’s allegation of actual injury is that he was unable to pursue

pending litigation because of the law library’s restricted hours. “[R]estricted

access to the law library is not per se denial of access to the courts.”      Twyman ,

584 F.2d at 357. Mr. Farrell’s sweeping allegation of actual injury is too

conclusory to demonstrate that the denial of legal materials actually hindered his

efforts to pursue any nonfrivolous claim.       See Hall v. Bellmon , 935 F.2d 1106,

1110 (10th Cir. 1991) (noting that, although pro se pleadings are liberally

construed, conclusory allegations will not suffice). For example,

       He might show . . . that a complaint he prepared was dismissed for
       failure to satisfy some technical requirement which, because of
       deficiencies in the prison’s legal assistance facilities, he could not have
       known. Or that he had suffered arguably actionable harm that he
       wished to bring before the courts, but was so stymied by inadequacies
       of the law library that he was unable even to file a complaint.

Lewis , 518 U.S. at 351 (internal quotation marks and citations omitted).

       Because Mr. Farrell has not alleged sufficient injury from the alleged

inadequate access to the courts, his allegations fail to state a claim upon which

relief may be granted. Accordingly, we affirm the district court’s dismissal. The

district court’s dismissal counts as a “prior occasion” for the counting purposes of

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28 U.S.C. § 1915(g).   See Jennings v. Natrona County Det. Ctr. Med. Facility   ,

175 F.3d 775, 780 (10th Cir. 1999) (holding that for purposes of counting strikes

under 28 U.S.C. § 1915, an affirmance of a district court dismissal would count as

a single strike, whereas a dismissal of an appeal from a district court dismissal

may count as a second strike in addition to the strike for the original dismissal).

Mr. Farrell is reminded of his obligation to continue making partial payments of

appellate costs and fees until paid in full.



                                         Entered for the Court,



                                         Robert H. Henry
                                         Circuit Judge




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