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Farrar v. Hall

*fn* submitted: March 10, 1993.

STEPHEN LEWIS FARRAR, AND ALL INMATES IN THE STATE OF OREGON DEPARTMENT OF CORRECTIONS PRISONS AND JAILS SIMILARLY SITUATED, PLAINTIFF-APPELLANT,
v.
FRANK LESLIE HALL, DIRECTOR, DEPARTMENT OF CORRECTIONS, AND ALL UNKNOWN DEFENDANTS, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the District of Oregon. D.C. No. CV-92-788-GEJ. George E. Juba, District Judge, Presiding

Before: Wallace, Chief Judge, Farris and Brunetti, Circuit Judges.

MEMORANDUM

Stephen Lewis Farrar, an Oregon state prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 action*fn1 as frivolous pursuant to 28 U.S.C. § 1915(d). We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion, Denton v. Hernandez, 112 S. Ct. 1728, 1734 (1992), and affirm.

Farrar filed a complaint alleging a violation of his constitutional rights arising from the defendants' practice of debiting funds from inmate trust accounts to recoup the costs of postage and photocopying incurred in prisoner litigation. The district court construed the complaint as alleging a denial of access to the courts. The district court did not err in dismissing the complaint and action as frivolous.

Frivolous in forma pauperis complaints may be dismissed sua sponte under 28 U.S.C. § 1915(d). Neitzke v. Williams, 490 U.S. 319, 324 (1989). A complaint is frivolous "where it lacks an arguable basis either in law or fact." Id. A district court must afford a pro se plaintiff notice of the deficiencies of the complaint and an opportunity to amend prior to dismissal unless it is absolutely clear that the deficiencies of the complaint cannot be cured. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

Indigent inmates have a constitutional right of access to the courts. Bounds v. Smith, 430 U.S. 817, 821 (1977). "It is indisputable that indigent inmates must be provided at state expense with paper and pen to draft legal documents, with notarial services to authenticate them, and with stamps to mail them." Id. at 824-25. These rights, however, are not unlimited. For instance, a state may adopt reasonable postage stamp regulations. See King v. Atiyeh, 814 F.2d 565, 568 (9th Cir. 1987). Further, this court and several other courts have rejected any constitutional right to unlimited free photocopying. See Johnson v. Moore, 926 F.2d 921, 923 (9th Cir. 1991), superseded on other grounds by Johnson v. Moore, 948 F.2d 517 (9th Cir. 1991); Sands v. Lewis, 886 F.2d 1166, 1169 (9th Cir. 1989). A right of access claim other that does not allege inadequate law libraries or alternative sources of legal knowledge must be based on an actual injury. Sands, 886 F.2d at 1171. "An actual injury consists of some specific instance in which an inmate was actually denied access to the courts." Id.

As the district court explained: "Plaintiff does not contend that the recoupment of costs has interfered with his ability to proceed with litigation or that costs have been recouped while a prisoner remains indigent." Because Farrar has not therefore alleged a specific instance in which he was actually denied access to the courts, the district court did not err in finding that the complaint did not present an arguable claim. See Neitzke, 490 U.S. at 324; Sands, 886 F.2d at 1171. Further, although Farrar was given notice of the deficiencies of his complaint and an opportunity to amend, he failed to amend. Cf. Noll, 809 F.2d at 1448. Accordingly, the district court did not abuse its discretion in dismissing this action. See Denton, 112 S. Ct. at 1734.

AFFIRMED.

Disposition

AFFIRME ...


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