IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT



                             No. 95-40858



HUBERT D. GALLIEN,
                                             Plaintiff-Appellant,

                                versus

CORRECTION CORPORATION OF AMERICA;
JOE HINOJOSA
                                             Defendants-Appellees.




          Appeal from the United States District Court
               for the Southern District of Texas
                            L-95-CV-4


                             June 18, 1996

Before GARWOOD, HIGGINBOTHAM, and BENAVIDES, Circuit Judges.

PER CURIAM*:

     Texas prisoner Hubert Gallien, proceeding pro se, sued the

Correction Corporation of America and CCA Warden Joe Hinojosa under

42 U.S.C. § 1983, alleging that they had denied him his right of

access to the courts.    The district court granted summary judgment

for the defendants.     We affirm.

     Texas prisoner Hubert Gallien was incarcerated from September

1993 until August 1994 by the Correction Corporation of America in

     *
      Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
Cuero, Texas.1   Gallien arrived at CCA in September 1993 following

his conviction in Texas state court. After the Fourteenth Court of

Appeals affirmed his conviction in November 1993, Gallien sought

legal assistance at CCA because he wanted to file a Petition for

Discretionary Review with the Texas Court of Criminal Appeals to

challenge the admission of his post-arrest, voluntary statement,

which was used to impeach his trial testimony. The filing deadline

for Gallien's PDR was December 30, 1993.    According to Gallien, he

was unable to file his PDR in time because neither a law library

nor legal assistance was available.

     Gallien contacted Diaz, a man he believed was a CCA attorney,

but Diaz could not give him any information.   Gallien also sent CCA

Warden Joe Hinojosa several requests for a transfer to the Texas

Department of Criminal Justice, but received no response.    Gallien

then gave a letter for Warden Hinojosa to a kitchen worker who saw

Warden Hinojosa daily.   The kitchen worker later relayed a verbal

message from the warden that Gallien would be in the next transfer

to TDCJ.   Gallien followed up by filing a formal grievance seeking

a transfer to TDCJ or another facility with a law library.   A month

later, Gallien was transferred to TDCJ.    He then filed a motion for

an extension of time to file his PDR, but his motion was denied.

      1
       Though CCA is a private corporation, state action exists
because CCA has contracted with the State of Texas to operate and
manage state prison facilities. See West v. Atkins, 

,
55-56 (1988) (holding that private doctor who contracted with state
prison to provide medical care to prisoners was state actor because
his actions were fairly attributable to state).

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     Gallien, pro se, sued CCA and Warden Hinojosa under 42 U.S.C.

§ 1983, alleging that they denied him his constitutional right of

access to the courts by failing to provide him with adequate legal

assistance or a law library.   Gallien seeks money damages, an order

that CCA install a law library or some other adequate system, and

an order that CCA relieve Warden Hinojosa of his position.

     The district court referred Gallien's action to a magistrate

judge, who conducted a Spears hearing.     The defendants moved for

summary judgment, arguing that Gallien received written notice that

a CCA attorney, Oliver Canales, was available to help him, and that

Gallien did not contact Mr. Canales.   The defendants also asserted

that another inmate informed Gallien of the PDR procedure, and that

Gallien declined to pursue it.   Gallien responded by urging, inter

alia, that he could not ask for specific legal materials because he

did not know what to request without consulting a law library.

     The magistrate judge ruled that Gallien could not prove that

he was legally prejudiced because there was no merit to the claim

he sought to raise in the PDR.    The magistrate judge recommended

that the district court grant summary judgment for the defendants.

     Gallien filed objections to the magistrate judge's report and

recommendation.   He argued that CCA had no law library, and that

there was a genuine fact issue as to whether there was a meaningful

alternative to a law library.    Gallien asserted that there was no

attorney at CCA, and that it was impossible to research his case by

requesting law books because each request took six or seven days to

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fill. Gallien argued that he was legally prejudiced because he was

unable to file a timely PDR; he insists that the magistrate judge

could not forecast what the Texas Court of Criminal Appeals would

do about his claim.

     The district court overruled Gallien's objections and granted

summary judgment for the defendants, dismissing Gallien's claims

with prejudice.   It issued a memorandum stating that the summary

judgment evidence showed that CCA provided legal assistance upon

request, and that Gallien knew how to request such assistance.   The

court stated further that Gallien was not prevented from preparing

his PDR without a law library, noting Gallien's ability to prepare

this § 1983 action.

     Though we agree with Gallien that the magistrate judge erred

in analyzing his claim of legal prejudice in terms of the weakness

of the merits of his proposed PDR claim, we nevertheless conclude

that the summary judgment evidence is insufficient as a matter of

law to establish that Gallien was legally prejudiced.     "While the

precise contours of a prisoner's right of access to the courts

remain somewhat obscure, the Supreme Court has not extended this

right to encompass more than the ability of an inmate to prepare

and transmit a necessary legal document to the court."     Brewer v.

Wilkinson, 

, 821 (5th Cir. 1993), (footnote omitted),

cert. denied   

(1993).2   Further, the prisoner "must

    2
     The Supreme Court recently heard argument in a case involving
the scope of a prisoner's right of access to the courts. Casey v.

                                  4
have demonstrated that his position as a litigant was prejudiced by

his denial of access to the courts."     Eason v. Thaler, 

, 1328 (5th Cir. 1996); see also Henthorn v. Swenson, 

, 354 (5th Cir.), cert. denied, 

(1992) ("A denial-

of-access-to-the-courts claim is not valid if a litigant's position

is not prejudiced by the alleged violation.").

     Here, Gallien claims that he was legally prejudiced because

the denial of access to the courts left him unable to file a timely

PDR, or to seek an extension to do so.      There is no evidence,

however, that CCA's action or inaction precluded Gallien from

ascertaining the limitations period for filing his PDR or from

timely contacting the Fourteenth Court of Appeals to explain his

position or to seek an extension.   Hence, even assuming that CCA

did not provide Gallien with adequate legal services or a law

library, there is insufficient summary judgment evidence to raise

a fact issue as to whether Gallien was legally prejudiced by CCA's

shortcomings.   The evidence establishes as a matter of law that

Gallien's legal position was prejudiced by his own failure to take

the necessary action to file a timely appeal, not by CCA's denial

of legal assistance.



Lewis, 43 F.32 1261 (9th Cir. 1994), cert. granted, Lewis v. Casey,

(1995) (argued November 1995). The issue in Lewis
was whether access to an adequate law library but without trained
legal counsel satisfies a prisoner's right of access to the courts.
Since we conclude that Gallien suffered no legal prejudice, his
claim fails even if the defendants otherwise denied him adequate
access to the courts.

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