                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                          July 18, 2016
                         _________________________________
                                                                        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.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HARTZ, HOLMES, and McHUGH, Circuit Judges.
                  _________________________________

      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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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

                                             3
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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