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

                                                                  FILED
                                                               February 13, 2008
                                No. 05-30965
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk
TOMMIE ANDERSON

                                           Plaintiff-Appellant

v.

BUREAU OF PRISONS; ROBERT M TAPIA; HARLEY LAPPIN; US
DEPARTMENT OF JUSTICE

                                           Defendants-Appellees


                 Appeal from the United States District Court
                    for the Western District of Louisiana
                           USDC No. 1:05-CV-255


Before HIGGINBOTHAM, STEWART, and ELROD, Circuit Judges.
PER CURIAM:*
      Tommie Anderson, federal prisoner # 24492-034, appeals the district court’s
dismissal of his civil rights complaint as frivolous pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i). He contends that the district court abused its discretion when
it dismissed his complaint as frivolous because federal prisoners are entitled to
legal research materials for the state in which the federal prison is located, as
well as for any state from which prior convictions are used to enhance federal
sentences. Anderson argues that by failing to provide legal research materials

      *
      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should not be published and is not precedent except under the limited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. 05-30965

for the states of Louisiana, North Carolina, California, and the District of
Columbia, the Bureau of Prisons (BOP) deprived him of meaningful access to the
courts and prevented him from challenging the unconstitutional prior state
convictions used to enhance his federal sentence.
      This court reviews a district court’s dismissal of a complaint as frivolous
under § 1915(e) for an abuse of discretion. Geiger v. Jowers, 404 F.3d 371, 373
(5th Cir. 2005). A district court may dismiss the claim of an inmate proceeding
in forma pauperis “if it lacks an arguable basis in law or fact.” Id. It appears
that the district court’s decision held that Anderson’s claim had no arguable
basis in law, as it adopted the magistrate judge’s holding that Anderson “failed
to allege any actual injury or prejudice” and did not “state a claim for an access
to courts violation.” “‘A complaint lacks an arguable basis in law if it is based on
an indisputably meritless legal theory, such as if the complaint alleges the
violation of a legal interest which clearly does not exist.’” Id. (quoting Davis v.
Scott, 157 F.3d 1003, 1005 (5th Cir. 1998)).
      Anderson, in his response to the court’s request that he amend his
complaint, alleged that he was in federal prison during the time that he could
have challenged his prior convictions. Because the BOP did not provide him
with access to state law books, he could not successfully challenge these
convictions. He provided specific examples of other unsuccessful challenges,
citing to a civil action that was dismissed because of his failure to exhaust
administrative remedies. He stated, “Anderson had to forego appealing his civil
action case in the 21st Judicial District of the State of Louisiana. Anderson did
try to appeal the case once it was dismissed, but did not know the procedures.
The appeals court did not acknowledge receiving any such appeal, and the
District Court was non-responsive to Anderson’s notice of appeal.”        The 21st
Judicial District case involved a 28 U.S.C. § 2241 application requesting that he
be transferred to a federal detainment center in Amite, Louisiana, in order to
attend a show cause hearing in state court; the case was construed as a civil

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action and dismissed for failure to exhaust administrative remedies. Anderson
alleges on appeal that he has now exhausted his administrative remedies.
      In his pleadings before the district court, Anderson also alleged that he
had civil actions before a court in Washington, D.C., and that by canceling its
subscription to D.C. reporters, the BOP prevented him from “knowing what the
current D.C. law was” for these actions. He alleged that he had “pending
criminal charges, some related to this conviction” and that “the only possible
defense” to his prior conviction is the use of “post conviction applications, which
in many cases are without a lawyer.”
      Viewed in light of our requirement that pro se complaints be held “to less
stringent standards than formal pleadings drafted by lawyers,” Haines v. Kerner,
404 U.S. 519, 520 (1972), and taking his claims together, Anderson sufficiently
alleged that the BOP deprived him of the ability to file a non-frivolous challenge
to his prior convictions. See Christopher v. Harbury, 536 U.S. 403, 415 (2002);
Lewis v. Casey, 518 U.S. 343, 351 (1996). Although it is unclear whether
Anderson could successfully challenge any of his prior convictions, he also
alleged more recent and ongoing challenges that have been unsuccessful,
possibly due to the BOP’s failure to provide books containing state law.
Anderson has alleged the requisite actual injury. See Lewis, 518 U.S. at 351
(holding that to satisfy the actual-injury requirement, the inmate must
demonstrate “that the alleged shortcomings in the library or legal assistance
program hindered his efforts to pursue a legal claim.”).
      To the extent that Anderson argues that the frivolousness determination
was not made by an Article III judge, his argument is without merit. Pursuant
to 28 U.S.C. § 636(b), the case was referred to the magistrate judge for proposed
findings of fact and recommendations. The ultimate disposition of the case,
however, was by an Article III judge who conducted a de novo review of the case
before adopting the magistrate judge’s report and recommendation.



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      Finally, to the extent that Anderson challenges the constitutionality of the
screening procedures set forth in § 1915(e), his argument is likewise without
merit. See Martin v. Scott, 156 F.3d 578, 580 n.2 (5th Cir. 1998) (finding similar
screening procedures to be of “unquestionable constitutionality”).
      Because Anderson brought a non-frivolous claim before the district court
and alleged an injury, the district court abused its discretion in adopting the
magistrate’s findings and dismissing Anderson’s case as frivolous. We therefore
GRANT the motion and REVERSE for proceedings consistent with this opinion.




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