           UNITED STATES COURT OF APPEALS
Filed 12/17/96
                    TENTH CIRCUIT



 HAROLD GRAHAM,

          Plaintiff-Appellant,

 v.
                                                        No. 96-1241
 KATIE BAXTER, Law Librarian
                                                    (D.C. No. 96-B-625)
 CCF; ANNETTE PORTER, Law
                                                         (D. Colo.)
 Librarian CCF; BRAD ROCKWELL,
 Staff Attorney, Director of Legal
 Services CDOC; MARK MICKINNA,
 Warden, CTCF,

          Defendants-Appellees.




                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, KELLY and LUCERO, 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); 10th Cir. R. 34.1.9. The cause is

      *
       This order and judgment is not binding precedent, except under the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 10th Cir. R. 36.3.
therefore ordered submitted without oral argument.

      Harold Graham filed this civil rights action claiming that defendants

violated his constitutional rights by refusing to copy a 38-page transcript which

he allegedly needed to file as evidence in his pending habeas action. The district

court dismissed the action as legally frivolous. It then denied Mr. Graham

informa pauperis status on appeal on the ground that he failed to submit a

certified copy of his prison trust fund account as required by 28 U.S.C. §

1915(a)(2). 1

      On appeal, Mr. Graham renewed his motion to proceed informa pauperis

and filed a certified copy of his prison trust account. That account shows that he

has had an average monthly balance of a negative $880.95 for the previous six

months period. He has therefore shown a financial inability to pay a filing fee.

See § 1915(b)(4). However, in order to succeed on his motion, Mr. Graham must

show both an inability to pay the fee and the existence of a nonfrivolous issue that

states a claim on which relief can be granted. § 1915(e)(2).

      In a careful and thorough opinion, the district court analyzed Mr. Graham’s

contention that he was being denied access to the courts because of defendants’



      1
       Proceedings in forma pauperis under 28 U.S.C. § 1915 were amended by
the Prison Litigation Reform Act of 1995, Pub. L. No. 104-134 § 804, 110 Stat.
1321-73 to 1321-75 (Apr. 26, 1996). We cite in this order to the amended version
now in effect.

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refusal to copy a transcript Mr. Graham allegedly needs as evidence in his habeas

case. The district court correctly concluded that Mr. Graham has recourse in his

habeas action for procuring the transcript if he can establish its necessity. Mr.

Graham has thus failed to show actual injury from the alleged deprivation, which

is required to establish a constitutional claim for denial of access to the courts.

Lewis v. Casey, 116 S. Ct. 2174, 2180 (1996). Because Mr. Graham has failed to

state a claim on which relief may be granted, we deny his motion for leave to

proceed on appeal without prepayment of costs or fees. Appeal dismissed.


                                        ENTERED FOR THE COURT


                                        Stephanie K. Seymour
                                        Chief Judge




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