86 F. 3d 1162 - Hernandez v. H Gomez

MEMORANDUM**

California state prisoner Jesse Dale Hernandez appeals pro se the district court's summary judgment in favor of prison officials in Hernandez's 42 U.S.C. § 1983 action alleging he was denied access to the courts. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Johnson v. Moore, 948 F.2d 517, 519 (9th Cir.1991), and affirm.

Prison authorities must provide inmates with meaningful access to the courts. Bounds v. Smith, 430 U.S. 817, 822 (1977). If an inmate's claims do not involve the denial of access to adequate law libraries or legal assistance, the inmate must allege an actual injury consisting of some specific instance in which conduct by prison officials denied him access to the courts. Sands v. Lewis, 886 F.2d 1166, 1171 (9th Cir.1989).

Here, Hernandez alleged that he was denied access to the courts because he was charged for photocopying documents pursuant to the prison's indigency policy which forced him to choose between purchasing essential hygienic supplies and legal supplies. Because he is not challenging the adequacy of the legal material or assistance, Hernandez was required to show actual injury. See Johnson, 948 F.2d at 521 (violation based on photocopying practices requires a showing of actual injury). He has failed to do so. Accordingly, the district court properly granted summary judgment for the prison officials. See id.

Hernandez also contends that the district court erred by granting defendants' cross-motion for summary judgment before he completed discovery. Hernandez did not ask for a continuance to conduct discovery, nor did he file an affidavit showing the particular facts he expected to find through discovery. See Fed.R.Civ.P. 56(f). Accordingly, the district court did not abuse its discretion by granting summary judgment before Hernandez completed discovery. See Brae Transp., Inc. v. Coopers & Lybrand, 790 F.2d 1439, 1443 (9th Cir.1986).