127 F. 3d 1104 - Canell v. Ficken

MEMORANDUM*

Alvin Howard Canell, a former Oregon state prisoner, appeals pro se the district court's grant of summary judgment for defendants in his 42 U.S.C. § 1983 action alleging interference with his right of access to the courts. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the district court's grant of summary judgment, see Barnett v. Centoni, 31 F.3d 813, 815 (9th Cir.1994) (per curiam), and we may affirm on any ground supported by the record, see United States v. Washington, 969 F.2d 752, 755 (9th Cir.1992).

Prisoners' right of access to the courts "requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law." Bounds v. Smith, 430 U.S. 817, 828 (1977). To establish a violation of this right, prisoners must show an "actual injury," Lewis v. Casey, 116 S.Ct. 2174, 2179-81 (1996), i.e., "that a nonfrivolous legal claim had been frustrated or was being impeded," id. at 2179.

Here, Canell complained about various policies concerning the adequacy of the law library and access to legal materials. His only evidence that these policies impeded him from presenting a legal claim was his statement that he "was precluded from filing a Due Process and equal protection clause action over matters that occurred at OSP due to no Federal case law available to plaintiff at OSH law library." This cursory description of the claim which was allegedly precluded by inadequacies in the law library was insufficient to create a genuine issue of material fact that Canell suffered an "actual. injury." See id. at 2180-81; Leer v. Murphy, 844 F.2d 628, 631 (9th Cir.1988) (stating that party opposing summary judgment motion may not rest on conclusory statements but must set forth specific facts).1

Canell also complained that his counselor at the drug treatment program stayed in the room when Canell spoke on the telephone with his attorney. Because Canell did not name the counselor as a defendant, and neither alleged nor submitted evidence that any named defendant monitored these conversations or knew about his counselor's conduct, Canell failed to establish that any of the defendants personally participated in the alleged violation of his right to confer with counsel. Accordingly, the district court did not err by granting summary judgment for defendants on this claim. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989).

Because there were no exceptional circumstances meriting appointment of counsel, we conclude that the district court did not abuse of discretion by denying Canell's motion for appointment of counsel. See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.1991).

AFFIRMED.