                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-1047
                                   ___________

Walter Lee Walton,                    *
                                      *
            Appellant,                *
                                      *
      v.                              * Appeal from the United States
                                      * District Court for the
Rick Toney, Warden, Varner Super      * Eastern District of Arkansas.
Max, ADC; Ray Hobbs, Deputy Chief * [UNPUBLISHED]
Director, Arkansas Department of      *
Correction,                           *
                                      *
            Appellees.                *
                                 ___________

                          Submitted: July 30, 2002
                              Filed: August 21, 2002
                                   ___________

Before MORRIS SHEPPARD ARNOLD, MURPHY, and BYE, Circuit Judges.

                                   ___________

PER CURIAM.

      Arkansas inmate Walter Lee Walton brought this 42 U.S.C. § 1983 action
against Arkansas Department of Correction (ADC) employees, claiming they denied
him access to the courts. The district court dismissed the complaint prior to service,
under 28 U.S.C. § 1915(e)(2), for failure to state a claim. We reverse.
       For the purpose of determining whether Walton stated a claim, we assume the
truth of his allegations. See Neitzke v. Williams, 490 U.S. 319, 327 (1989) (dismissal
for failure to state claim is warranted where “it is clear that no relief could be granted
under any set of facts that could be proved consistent with the allegations” (internal
quotation and citation omitted)). Walton is confined at Varner Super Max Unit
(VSMU). In November 2000, with the help of a jailhouse lawyer several cells away,
Walton filed a prior lawsuit (Walton I) about a severe beating he had received in
August 2000. In the midst of the lawsuit, prison administrators directed officers to
stop their routine practice of “passing” documents from cell to cell. When Walton
told a correction officer that the materials Walton wanted “passed” related to legal
matters, the officer responded: “[T]hat is what they especially want to stop from
being passed,” and “legal materials was [sic] emphasi[z]ed to [officers] as something
not to pass.” Walton thus lost assistance from a jailhouse lawyer.

       ADC does not provide attorneys to help VSMU prisoners with civil cases, and
VSMU prisoners cannot personally visit the law library. VSMU prisoners may
request materials from the library on a blank form, but the request must specifically
identify the item requested.

       A magistrate judge recommended dismissal of Walton I as frivolous and for
failure to exhaust administrative remedies. Without the assistance of his jailhouse
lawyer, Walton could not understand the recommendation and “withdrew” his
complaint. Subsequently, Walton was able to re-establish communication with his
jailhouse lawyer, in violation of prison rules. He learned from the jailhouse lawyer
that he had not needed to dismiss the Walton I complaint, but could have remedied
the exhaustion problem by excising some complaint paragraphs relating to non-
central claims. He thereafter refiled Walton I, but would not have done so properly
without the illicit help. As a consequence of the delay, valuable evidence--which
included VSMU video recordings and ambulance reports--was destroyed.



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        We review de novo dismissals under section 1915(e)(2)(B). See Moore v.
Sims, 200 F.3d 1170, 1171 (8th Cir. 2000) (per curiam). While an inmate does not
have “an abstract, freestanding right to a law library or legal assistance,” he must
have “a reasonably adequate opportunity to present claimed violations of fundamental
constitutional rights to the courts.” Lewis v. Casey, 518 U.S. 343, 351 (1996)
(internal quotation and citation omitted). To prevail on an access-to-courts claim, an
inmate must show actual injury, that is: “demonstrate that the alleged shortcomings
in the library or legal assistance program hindered his efforts to pursue a legal claim”;
“demonstrate that a nonfrivolous legal claim had been frustrated or was being
impeded.” Id. at 351, 352-53.

       Once prison administrators implemented the ban on “passing” legal documents,
they limited Walton’s legal resources to a library to which he had no direct access and
from which he was required to request specific materials on a blank form. Walton--
who was untrained and inexperienced in the law--accordingly lacked a reasonably
adequate opportunity to present his claim. Specifically, his pursuit of Walton I was
hindered in three respects. First, based on ignorance of a technical requirement he
could not have known, he withdrew Walton I under threat of dismissal by the district
court. See Lewis, 518 U.S. at 351 (inmate may show actual injury by showing “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”). Second, he could not have properly refiled without
violating prison rules. Third, the delay in his ability to pursue Walton I allowed the
destruction of evidence.

      Accordingly, we reverse and remand to the district court for further
proceedings. On remand, the district court should appoint counsel to assist Walton.




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A true copy.

      Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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