* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 9 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

RICHARD R. GARCIA,

Plaintiff-Appellant,

v. DON HOOVER, of the Corrections Department, Defendant, and
ATTORNEY GENERAL STATE OF NEW MEXICO,

Defendant-Appellee. No. 97-2375 (D.C. No. CIV-96-449-MV) (D. N.M.)

ORDER AND JUDGMENT *

Before ANDERSON, BARRETT, and TACHA , Circuit Judges.-2-

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiff-appellant Richard R. Garcia appeals from the district court’s order dismissing with prejudice his civil rights complaint. The district court construed his complaint, filed as a habeas petition, as a 42 U.S.C. § 1983 complaint for violation of his civil rights. It adopted the reco mmendation of the magistrate judge assigned to the case and dismissed the compla int with prejudice. We affirm the order of dismissal. Appellant is a New Mexico prisoner currently housedin the California prison system under the provisions of the Interstat e Corrections Compact. He brought this complaint alleging denial of access to the courts. He asserted that he needed physical access to New Mexico legal material s to pursue various proceedings in the New Mexico state and federal cou rts. The district court initially found that appellant h ad failed to exhaust his administrative remedies. It suspended proceedings to allow appellant to pursue a grievance through the prison grievance system, whic h he did. As the result of his grievance, the prison authorities reiterated their policy of allowing appellant to obtain photocopies of identifiable New Mexico legal materials upon request from-3-

the head librarian at the New Mexico Penitentiary. They further granted his request for paralegal assistance with general research and with drafting of pleadings. Appellant was instructed that he could receive paralegal assistance with New Mexico law issues by requesting such assis tance through the head librarian. The authorities denied appellant’s requ est for retransfer to a New Mexico prison, however. Appellant argued thereafter that the relief he had obtained through the grievance process was insufficient to vindicate his constitutional right of access to the New Mexico courts. The magistrate judge rej ected this argument and recommended that appellant’s complaint be dismissed . He found that New Mexico had provided appellant with sufficient acces s to New Mexico legal resources. He further found that appellant had fai led to allege a relevant, actual injury from the alleged denial of access to the cou rts. On appeal, appellant continues to argue that he req uires physical access to a library containing New Mexico materials. He claims that the New Mexico Penitentiary will only send him photocopies of case s and other materials if he provides an exact citation to the material he wants copied. Without physical access to a law library, he says, it is not possibl e for him to develop the exact citations which the prison librarian requires.-4-

Prisoners maintain a fundamental constitutional rig ht of meaningful access to the courts. See Bounds v. Smith , 430 U.S. 817, 821-22 (1977). This right is not diminished when a prisoner is transferred out o f state. The sending state bears the burden of providing the required state legal materials. See Clayton v. Tansy , 26 F.3d 980, 982 (10th Cir. 1993). In order for appellant to prove a violation of the constitutional right of access to the courts, he must show: (1) the failur e of prison officials to assist him “in the preparation and filing of meaningful legal papers by providing [him] with [an] adequate law librar[y] or adequate assistance from persons trained in the law;” and (2) some quantum of prejudice or detriment caused by the challenged conduct of state officials resulting in the interruption and/or delay of his pending or contemplated litigation. See Lewis v. Casey , 518 U.S. 343, 346, 351 (1996). As we agree with the district court that appellant has failed to establish the first of these two elements, we need not consider whetherhe has made an adequate showing of prejudice. Providing prisoners with direct, physical access to a law library is merely one constitutionally-acceptable method of assuring their right of meaningful access to the courts. See id. , 518 U.S. at 351. Prison authorities may also ful fill this responsibility by providing inmates with “adeq uate assistance from persons trained in the law.” Bounds , 430 U.S. at 828. Legal assistance is constitutio nally1 Appellant complains that the prison librarian did n ot answer a letter which

he wrote to her on June 13, 1997. In that letter, he asked her how he was “suppose go [sic] about Inquiring for some Law Case s. When I don’t have access to Law Books to Give You specific citations.” R. d oc. 31, ex. B. Appellant had already received an answer to that question: he wa s to request paralegal assistance with his legal research. -5- sufficient when provided by nonattorneys trained inthe law such as inmate law clerks, paralegals, or law students. See Carper v. DeLand , 54 F.3d 613, 616 (10th Cir. 1995). As the result of appellant’s administrative grievan ce, he has been granted the opportunity to receive assistance from a parale gal with research and the preparation of pleadings. He fails to show that th is assistance has been withheld or is insufficient in any way. 1 Given the availability of this assistance, he has failed to show that he is being denied his constitu tional right of access to the
courts. Appellant also argues that he was denied a fair hea ring on his claim in the district court because the State of New Mexico mist akenly provided the court with documents and records pertaining to a different Ric hard Garcia. Appellant fails to explain how this mistake could have had any effe ct on the court’s ultimate decision pertaining to the legal issues in this cas e. Our review of the record and the law convinces us that even disregarding these m aterials, the district court acted properly in dismissing appellant’s complaint.-6-

The judgment of the United States District Court fo r the District of New Mexico is AFFIRMED. The mandate shall issue forthw ith.

Entered for the Court

James E. Barrett Senior Circuit Judge