* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

February 23, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-50117

Summary Calendar

ROBERT LEE MARTIN,

Plaintiff-Appellant,

versus

AMALIA RODRIGUEZ-MENDOZA, District Clerk, Travis County,

Defendant-Appellee.

--------------------

Appeals from the United States District Court

for the Western District of Texas

USDC No. 1:04-CV-695

--------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Robert Lee Martin, Texas prisoner # 1050629, appeals the

district court’s award of summary judgment in favor of Amalia

Rodriguez-Mendoza (Rodriguez) in his 42 U.S.C. § 1983 suit. In

that suit, Martin alleged that Rodriguez violated his right of

access to the courts by failing to respond to his requests for a

copy of his statement of facts. On appeal, Martin argues in

pertinent part that his position as a litigant was prejudiced by

Rodriguez’s inaction because (1) he was entitled under Anders v.

California, 386 U.S. 738 (1967), to a free copy of his statement
No. 06-50117

-2-

of facts to file a pro se appellate brief in response to

counsel’s Anders motion and (2) Rodriguez prevented the filing of

appropriate documents when she failed to comply with his requests

for verification that his March 25, 2004, records request had

indeed been filed and, when she failed to notify him of the state

court’s September 24, 2004, ruling on that request. Our review

is de novo. See Horton v. City of Houston, 179 F.3d 188, 191

(5th Cir. 1999).

As an initial matter, we hold that Martin’s notice of appeal

was timely filed. See United States v. Young, 966 F.2d 164, 165

(5th Cir. 1992). “[B]efore a prisoner may prevail on a claim

that his constitutional right of access to the courts was

violated, he must demonstrate ‘that his position as a litigant

was prejudiced by his denial of access to the courts.’” McDonald

v. Steward, 132 F.3d 225, 230-31 (5th Cir. 1998) (citation

omitted); see also Lewis v. Casey, 518 U.S. 343, 351 (1996). To

demonstrate prejudice, Martin must prove that he suffered actual

injury by showing that his ability to pursue a “nonfrivolous,”

“arguable” legal claim was hindered. See Christopher v. Harbury,

536 U.S. 403, 415 (2002) (internal quotations omitted). The

underlying claim must be described well enough to apply the

frivolity test and to show that its “arguable nature . . . is

more than hope.” Id. at 416 (internal quotations omitted). 

Martin has failed to identify any claim, much less any

nonfrivolous claim, that he would have raised on appeal in
No. 06-50117

-3-

response to counsel’s Anders motion had he had the benefit of his

statement of facts. Similarly, he has not identified any

nonfrivolous claim that he would have raised on either state or

federal habeas review. Martin has therefore failed to show that

he suffered actual injury as a result of Rodriguez’s alleged

inaction, and, therefore, he is not entitled to relief. See id.

at 415-16. 

AFFIRMED.