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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-60951

Summary Calendar

KEVIN THOMAS,

Plaintiff - Appellant

v.

CONSTANCE REESE, in her Individual Capacity as a Federal Officer;

JULIE D. SOUTHERLAND, in her Individual Capacity as a Federal Officer;

Z. PLEASANT, in her Individual Capacity as a Federal Officer,

Defendants - Appellees

Appeal from the United States District Court for the

Southern District of Mississippi at Jackson

5:07-CV-160

Before DAVIS, SMITH, and OWEN, Circuit Judges.

PER CURIAM:*

Plaintiff, Kevin Thomas, is a Federal inmate serving a 180 month sentence

at Federal Correctional Complex in Yazoo City, Mississippi(FCC Yazoo City).

His projected release date is in September 2013. Thomas filed this Bivens action

against prison officials, Constance Reese, Warden; Julie D. Southerland, Unit

Manager; and Zaneta Pleasant, Counselor. His core complaint is that the

United States Court of Appeals

Fifth Circuit

F I L E D

August 28, 2009

Charles R. Fulbruge III

Clerk
No. 08-60951

2

defendants deprived him of legal materials necessary to file a complaint about

inadequate medical care in the prison. Thomas asserts that defendants,

Southerland and Pleasant, searched his cell and removed from his locker

typewriter ribbons, typewriter eraser ribbons and a civil jury trial manual. He

alleged that by taking this property the prison officials “created an impediment”

to his asserting his claim of inadequate medical care. He further asserted that

a complete breakdown in the institution’s electronic legal research computer

system deprived him of access to the courts.

The magistrate judge wrote a detailed report and recommendation to the

district court recommending that the defendants’ motion for summary judgment

be granted on grounds that Thomas had not demonstrated a constitutional

violation. The district court accepted the recommendation and dismissed the

case. We affirm the district court’s order granting summary judgment for the

following reasons.

1) Plaintiff produced no summary judgment evidence indicating that

Constance Reese the Warden of FCC Yazoo City, Mississippi was personally

involved or had knowledge of the alleged confiscation of plaintiff’s legal

materials. Accordingly the district court correctly dismissed plaintiff’s Bivens

claims against Warden Reese.

2) Thomas argues that he suffered harm because his deprivation of legal

materials delayed him in filing suit beyond the time permitted by the statute of

limitations. We agree with the district court that this assertion is belied by the

fact that he had until October 27, 2008 to file a Bivens claim regarding his

medical care, long after he filed his complaint in the instant action.

3) In order to establish that prison officials denied him access to the courts

Thomas must demonstrate actual injury, that is, the prisoner must show that

his legal position was prejudiced or that he was prevented from raising a
No. 08-60951

3

meritorious legal issue. See Richardson v. McDonnell, 841 F.2d 120, 122 (5th

Cir. 1988); Ruiz v. United States, 160 F.3d 273, 273 (5th Cir. 1998).

For example, Thomas failed to demonstrate how the lack of a single book

he alleged was taken, a Civil Trial Manual, prejudiced his position where he had

access to an electronic law library. Although access to the electronic law library

was restricted, he did not demonstrate that he was unable to conduct the legal

research through this means. 

Thomas did not demonstrate how the mere confiscation of typewriter

ribbons denied him access to the courts. He filed the instant suit on August 16,

2007, more than a year before the statute of limitations would have run on a

Bivens claim regarding his medical care. He has vigorously litigated this claim

and there is no indication he could not have litigated his claim regarding lack of

proper medical care.

4) Thomas’ claim that he was unable to timely assert a Federal Tort Claims

Act case because his materials were confiscated is also meritless. Thomas has

never sought to assert a FTCA claim. There was certainly no statute of

limitations problem, however, for him to assert such a claim. When he filed the

present case he still had more than 3 months to file his FTCA claim.

5) We also agree with the district court that there is no indication that

Thomas’ administrative detention from August 6, 2006 to August 28, 2006

denied him access to the courts.

For these reasons and the reasons assigned by the magistrate judge in his

July 30, 2008 report and recommendation, the judgment of the district court is

affirmed.

AFFIRMED.