* This order and judgment is not binding precedent, except under the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. 

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.
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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); 10th Cir. R. 34.1.9. The case 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 recommendation of the magistrate

judge assigned to the case and dismissed the complaint with prejudice. We affirm

the order of dismissal.

Appellant is a New Mexico prisoner currently housed in the California

prison system under the provisions of the Interstate Corrections Compact. He

brought this complaint alleging denial of access to the courts. He asserted that he

needed physical access to New Mexico legal materials to pursue various

proceedings in the New Mexico state and federal courts.

The district court initially found that appellant had failed to exhaust his

administrative remedies. It suspended proceedings to allow appellant to pursue a

grievance through the prison grievance system, which 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
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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 assistance through the head

librarian. The authorities denied appellant’s request 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 rejected this argument and

recommended that appellant’s complaint be dismissed. He found that New

Mexico had provided appellant with sufficient access to New Mexico legal

resources. He further found that appellant had failed to allege a relevant, actual

injury from the alleged denial of access to the courts. 

On appeal, appellant continues to argue that he requires physical access to a

library containing New Mexico materials. He claims that the New Mexico

Penitentiary will only send him photocopies of cases 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 possible for him to develop the exact

citations which the prison librarian requires. 
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Prisoners maintain a fundamental constitutional right 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 of 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 failure 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 whether he 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 fulfill

this responsibility by providing inmates with “adequate assistance from persons

trained in the law.” Bounds , 430 U.S. at 828. Legal assistance is constitutionally
1 Appellant complains that the prison librarian did not 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 Cases. When I don’t have access

to Law Books to Give You specific citations.” R. doc. 31, ex. B. Appellant had

already received an answer to that question: he was to request paralegal

assistance with his legal research. 

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sufficient when provided by nonattorneys trained in the 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 grievance, he has been granted

the opportunity to receive assistance from a paralegal with research and the

preparation of pleadings. He fails to show that this 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 constitutional right of access to the

courts. 

Appellant also argues that he was denied a fair hearing on his claim in the

district court because the State of New Mexico mistakenly provided the court with

documents and records pertaining to a different Richard Garcia. Appellant fails

to explain how this mistake could have had any effect on the court’s ultimate

decision pertaining to the legal issues in this case. Our review of the record and

the law convinces us that even disregarding these materials, the district court

acted properly in dismissing appellant’s complaint. 
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The judgment of the United States District Court for the District of New

Mexico is AFFIRMED. The mandate shall issue forthwith. 

Entered for the Court

James E. Barrett 

Senior Circuit Judge