Proch v. United States Bureau of Prisons , 667 F. App'x 708 ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 18, 2016
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Elisabeth A. Shumaker
Clerk of Court
TAUREAN XAVIER PROCH,
Plaintiff - Appellant,
v. No. 16-3005
(D.C. No. 5:14-CV-03147-SAC-DJW)
UNITED STATES BUREAU OF (D. Kan.)
PRISONS; CLAUDE MAYE, Warden,
USP-Leavenworth,
Defendants - Appellees.
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ORDER AND JUDGMENT*
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Before HARTZ, HOLMES, and McHUGH, Circuit Judges.
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Taurean Proch appeals the district court’s summary dismissal of his Bivens
action to obtain meaningful access to the courts. In 2009, Mr. Proch was indicted on
charges of solicitation to commit an armed bank robbery and being a felon in
possession of a firearm. He pleaded guilty to the possession charge and, through a
plea agreement, the solicitation charge was dismissed. After finding that he had three
prior violent-felony convictions under the Armed Career Criminal Act (ACCA), the
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
court calculated a guidelines range of 188 to 235 months. It sentenced him to 190
months’ imprisonment and the Eleventh Circuit affirmed on direct appeal. See
United States v. Proch, 637 F.3d 1262, 1265, 1269 (11th Cir. 2011).
Mr. Proch filed a motion under 28 U.S.C. § 2255 to vacate his sentence in June
2012. While the motion was pending,1 Mr. Proch filed the complaint in this case in
the District of Kansas, as he is imprisoned in Leavenworth. He sought a writ of
mandamus and a declaratory judgment, alleging that he is being deprived of access to
legal materials pertaining to state-court convictions that formed the basis for his
ACCA sentencing enhancement in federal court. He wants the materials so that he
can collaterally attack those convictions and undermine his ACCA enhancement.
Attachments to the complaint reveal that prison officials (1) denied Mr. Proch’s
request for access to state-law materials because the “Bureau is not mandated to
provide state case law and other state legal materials,” and (2) suggested that
Mr. Proch use outside resources to obtain such materials, including purchasing state
publications, pursuing private counsel, utilizing legal services provided by the
University of Kansas (KU) School of Law, or contacting “the specific state to see if
such materials may be provided to you.” R. Vol. 1 at 13, 15.
The district court ordered Mr. Proch to show cause why the complaint should
not be dismissed as deficient. It said that his pleadings had not shown that “the
denial of legal resources hindered his efforts to pursue a nonfrivolous claim.” R.
1
The § 2255 motion was ultimately denied and it is currently before the
Eleventh Circuit on appeal.
2
Vol. 1 at 33. In response, Mr. Proch argued that the prison officials’ suggestion that
he solicit legal materials from outside the institution and hope that someone provides
them falls short of the officials’ constitutional obligation. He also alleged that he
contacted the KU law school but was told that it was unable to assist him in
challenging Florida convictions. The district court dismissed Mr. Proch’s complaint
for lack of a showing of actual injury because he “identifies no specific claim he is
unable to bring to the state court’s attention . . . and he has no constitutionally
protected right to be provided state legal materials sufficient to research the
possibility of any such claim that might still be available.” R. Vol. 1 at 59.
On appeal Mr. Proch renews his arguments and petitions us for a writ of
mandamus. He asserts that he has no access to the materials he needs via LexisNexis
at the prison law library or at the KU law library and that the Bureau of Prisons has
provided no materials, leaving him “access to the courts in word, but not deed.”
Opening Br. at 2. Because Mr. Proch is proceeding without the assistance of counsel,
we construe his filings liberally “but we do not act as his advocate.” Ford v. Pryor,
552 F.3d 1174, 1178 (10th Cir. 2008).
Prisoners have a “fundamental constitutional right of access to the courts,”
which requires prison officials to provide inmates “adequate law libraries or adequate
assistance from persons trained in the law.” Bounds v. Smith, 430 U.S. 817, 828
(1977), overruled in part on other grounds by Lewis v. Casey, 518 U.S. 343, 354
(1996). But the prisoner must show an actual injury, see Lewis, 518 U.S. at 349, and
that requirement “is not satisfied by just any type of frustrated legal claim,” id. at
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354. Rather, the tools Bounds requires “are those that the inmates need in order to
attack their sentences, directly or collaterally, and in order to challenge the conditions
of their confinement.” Id. at 355. Prisons are under no obligation to enable prisoners
to discover grievances. See id. at 354. Moreover, “an inmate cannot establish
relevant actual injury simply by establishing that his prison’s law library or legal
assistance program is subpar”; “the inmate . . . must go one step further and
demonstrate that the alleged shortcomings in the library or legal assistance program
hindered his efforts to pursue a legal claim.” Id. at 351. And the legal claim must be
nonfrivolous. Id. at 353 n.3.
We agree with the district court. Mr. Proch has not established any injury or
prejudice. He has provided no facts indicating the basis for overturning any state
conviction. He appears to want only the tools to discover a grievance, a venture the
Bureau is under no obligation to support. See Lewis, 518 U.S. at 354; Cunningham v.
Dist. Attorney’s Office, 592 F.3d 1237, 1271 (11th Cir. 2010) (plaintiff must show
“more than hope” of obtaining relief on the underlying claim (internal quotation
marks omitted)). Mr. Proch’s motion to proceed without prepayment of fees is
granted and the judgment of the district court is affirmed.
Entered for the Court
Harris L Hartz
Circuit Judge
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