Harold Graham, Plaintiff-appellant, v. Katie Baxter, Law Librarian Ccf; Annette Porter, Lawlibrarian Ccf; Brad Rockwell, Staff Attorney,director of Legal Services Cdoc; Markmickinna, Warden, Ctcf,defendants-appellees, 103 F.3d 144 (10th Cir. 1996)

ORDER AND JUDGMENT^* 

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.

Harold Graham filed this civil rights action claiming that defendants violated his constitutional rights by refusing to copy a 38-page transcript which he allegedly needed to file as evidence in his pending habeas action. The district court dismissed the action as legally frivolous. It then denied Mr. Graham informa pauperis status on appeal on the ground that he failed to submit a certified copy of his prison trust fund account as required by 28 U.S.C. § 1915(a) (2).¹ 

On appeal, Mr. Graham renewed his motion to proceed informa pauperis and filed a certified copy of his prison trust account. That account shows that he has had an average monthly balance of a negative $880.95 for the previous six months period. He has therefore shown a financial inability to pay a filing fee. See § 1915(b) (4). However, in order to succeed on his motion, Mr. Graham must show both an inability to pay the fee and the existence of a nonfrivolous issue that states a claim on which relief can be granted. § 1915(e) (2).

In a careful and thorough opinion, the district court analyzed Mr. Graham's contention that he was being denied access to the courts because of defendants' refusal to copy a transcript Mr. Graham allegedly needs as evidence in his habeas case. The district court correctly concluded that Mr. Graham has recourse in his habeas action for procuring the transcript if he can establish its necessity. Mr. Graham has thus failed to show actual injury from the alleged deprivation, which is required to establish a constitutional claim for denial of access to the courts. Lewis v. Casey, 116 S. Ct. 2174, 2180 (1996). Because Mr. Graham has failed to state a claim on which relief may be granted, we deny his motion for leave to proceed on appeal without prepayment of costs or fees. Appeal dismissed.