                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          AUG 11 1999
                               TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


TYRONE McDANIEL YAHWEH,

             Plaintiff-Appellant,
                                                         No. 99-1034
v.                                                   (District of Colorado)
                                                     (D.C. No. 95-S-2094)
ARISTEDES ZAVARAS,

             Defendant-Appellee.




                          ORDER AND JUDGMENT *


Before TACHA, McKAY, 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); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Tyrone Yahweh, a prisoner proceeding pro se, appeals the district court’s

grant of summary judgment in favor of the defendant Aristedes Zavaras on


      *
       This order and judgment is not binding precedent, except under the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.
Yahweh’s 42 U.S.C. § 1983 complaint. In his complaint, Yahweh asserted he was

denied access to the court in July and August of 1995, while he was incarcerated

at the San Carlos Correctional Facility, because prison authorities denied him

physical access to a law library. The district court granted summary judgment in

favor of Zavaras on the basis of the Supreme Court’s recent decision in Lewis v.

Casey, 518 U.S. 343 (1996). In particular, the district court noted that to state a

cognizable claim under Lewis, Yahweh had to demonstrate an actual injury which

hindered his effort to pursue a nonfrivolous legal claim. Id. at 354-55. Because

the actions of Zavaras had not hindered Yahweh’s ability to litigate his claims in

case number 95-S-1163, the only case identified by Yahweh as suffering harm as

a result of the alleged restriction on access to legal materials, the district court

concluded that Zavaras was entitled to judgment as a matter of law.

      This court has reviewed de novo Yahweh’s opening and reply 1 briefs,

Zavaras’s brief, the magistrate judge’s report and recommendation, the district

court’s order, and the entire record on appeal. 2 In light of that de novo review,

this court affirms for substantially those reasons set out in the magistrate’s report




      1
       In an order entered on July 3, 1999, this court gave Yahweh until July 23,
1999, to file his reply brief. The reply brief was timely filed.
      2
       This court has not, however, considered the “exhibits” attached to
Yahweh’s briefs because, as noted by Zavaras, those materials were never
submitted to the district court and are not part of the proper record on appeal.

                                           -2-
and recommendation dated October 19, 1998, and the district court’s order dated

December 3, 1998. 3

      The judgment of the United States District Court for the District of

Colorado is hereby AFFIRMED.

                                       ENTERED FOR THE COURT



                                       Michael R. Murphy
                                       Circuit Judge




      3
       In his appellate briefs, Yahweh attempts to satisfy his burden under    Lewis
of demonstrating actual injury by reference to additional civil rights cases that he
had pending in the district court during the time that he was allegedly denied
access to legal materials. This court will not consider these arguments because
they were never presented to the district court.    See Noel v. FDIC , 177 F.3d 911,
915 (10 th Cir. 1999) (holding that a federal appellate court will not consider
arguments not raised in a timely fashion before, and not passed upon by, district
courts).

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