McCabe v. Mach ( 1993 )

USCA1 Opinion

          October 8, 1993
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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        No. 93-1341 

                                   JOHN R. MCCABE,

                                Plaintiff, Appellant,

                                          v.

                                  LEN MACH, ET AL.,

                                Defendants, Appellees.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. A. David Mazzone, U.S. District Judge]
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                                        Before

                                 Breyer, Chief Judge,
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                          Selya and Boudin, Circuit Judges.
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            John R. McCabe on brief pro se.
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            Mark P. Sutliff, Assistant Attorney General,  on Motion to Join in
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        the Brief of appellee Richard Grelotti, for appellee, Leonard Mach.
            Nancy  Ankers  White,  Special  Assistant  Attorney  General,  and
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        William D. Saltzman on brief for appellee, Richard Grelotti.
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                 Per Curiam.  John McCabe, a prisoner of the commonwealth
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            of  Massachusetts,  appeals  the  district  court   grant  of

            defendants'  motion  for  summary  judgment  on  his   claims

            pursuant  to 42 U.S.C.    1983.1  McCabe  alleges that, while

            incarcerated at the Treatment  Center for Sexually  Dangerous

            Persons  at   Bridgewater,  he  was  subject   to  mechanical

            restraints in  violation of the eighth  amendment prohibition

            of  cruel and unusual punishment.  He further alleges that he

            was  deprived of  his constitutional  right of access  to the

            courts because of restrictions placed upon  his access to the

            law library.

                 We believe  that the district court's opinion adequately

            sets  forth the  background of this  case, and  that McCabe's

            serious assault on a guard amply justified the restraints and

            disposes of the eighth amendment claim.

                 As  for the denial of  access to library facilities, the

            gravamen  of McCabe's  claim, as  set forth  in his  brief on

            appeal, is  that  the  restraints  interfered  with  McCabe's

            ability  to use the library.   Because McCabe  admits that he

            was not wholly denied  access, he has no claim  under section

            1983  without a  showing  of actual  prejudice,  such as  the

            forfeit of a case for failure  to meet filing deadlines.  See
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            1.     The   district   court   ordered   plaintiff's  claims
            "dismissed."   However, since the court  explicitly relied on
            defendant affidavits and on the record, we treat its decision
            as a summary judgment.  See Fed. R. Civ. P. 12(b)(6).
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            Sowell v. Vose, 941 F.2d 32, 35 (1st Cir. 1991).   But McCabe
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            fails  to make any such allegation of actual prejudice either

            in his complaint or in his brief on appeal.

                 Accordingly, we  affirm the district court  on the issue

            of  library access for lack of any claim of actual prejudice.

            We  note that McCabe is  now in another  institution, and has

            conducted extensive litigation under  new conditions, so that

            the  library  access  problem   of  which  he  complains  has

            apparently been resolved.

                 Affirmed.
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