762 F. 2d 1007 - Derek Farmer v. Ronald C Marshall

BEFORE: KEITH and KRUPANSKY, Circuit Judges, and COHN, District Judge.

This matter is before the Court upon appellant's motion to proceed in forma pauperis. The appeal has been referred to this panel pursuant to Rule 9(a), Rules of the Sixth Circuit. After examination of the record, the appellant's informal brief, and his motion, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

The appellant appeals the dismissal of his civil rights complaint pursuant to 28 U.S.C. Sec. 1915(d). He is incarcerated in the maximum security block at the Southern Ohio Correctional Facility. Staplers are not provided in that part of the prison. The facility has a regulation which requires that cash slips be attached to legal correspondence requiring more than twenty cents postage. The appellant alleges that he cannot send legal correspondence because he does not have access to a stapler to attach the cash slips. Thus, he contends he is being denied access to the courts.

In liberally construing the appellant's complaint, it is apparent this action is frivolous. See Malone v. Colyer, 710 F.2d 258 (6th Cir. 1983). An inmate must have an adequate opportunity to present claimed violations of a fundamental right in the courts. Bounds v. Smith, 430 U.S. 817, 824 (1977). There are many other ways to attach the cash slips to the legal correspondence. Therefore, the lack of access to a stapler has not unduly infringed upon the appellant's rights. The present action is evidence that the appellant has adequate access to the courts.

The appellant's motion to proceed in forma pauperis is without consequence. He has been granted in forma pauperis status in district court and need not apply again on appeal. Rule 24(a), Federal Rules of Appellate Procedure.

Accordingly, it is ORDERED that the judgment of the district court is affirmed pursuant to Rule 9(d)(3), Rules of the Sixth Circuit.

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