James Nelson Blair, Plaintiff-appellant, v. Daniel Vasquez, Defendant-appellee, 9 F.3d 1550 (9th Cir. 1993)

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US Court of Appeals for the Ninth Circuit - 9 F.3d 1550 (9th Cir. 1993)

Submitted Aug. 5, 1993. *Decided Oct. 26, 1993


Before: CHOY, GOODWIN, and SKOPIL, Circuit Judges

MEMORANDUM** 

James Blair appeals the district court's dismissal of his second claim for relief in his amended complaint, which reads, "The actions of the defendants in denying plaintiff use of the inmate law library constitute denial of plaintiff's right to have access to the courts...."

The only facts alleged in either complaint regarding access to the law library are that the defendants failed to provide Blair with material from the law library for eleven days during a stay in the hospital. The district court correctly concluded that this brief lack of access to library materials did not amount to denial of access to the courts in the absence of an actual injury. See Sands v. Lewis, 886 F.2d 1166, 1169-71 (9th Cir. 1989).

The district court granted Blair leave to amend his complaint to allege an actual injury. In his amended complaint, Blair alleges neither an injury due to his lack of access to library books during his hospital stay, nor any actions on the part of the defendants after his release from the hospital that have blocked his access to the library. The district court correctly dismissed the aciton as frivolous under 28 U.S.C. § 1915(d) based on the absence of supporting facts. See Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984).

On appeal, Blair argues that strip searching inmates prior to allowing them access to the law library constitutes a denial of access to the courts. This claim was never raised in district court, and refers to a factual situation wholly distinct from any facts alleged in district court. "Issues not raised in the district court will not be heard on appeal absent a showing that review is necessary to prevent a miscarriage of justice, that a change in the law has created a new issue pending appeal, or that the issue is purely one of law." Ferris v. Santa Clara County, 891 F.2d 715, 719 (9th Cir. 1989), cert. denied, 498 U.S. 850 (1990). None of these exceptions apply here.

Blair also appeals the district court's denial of his motion to reconsider the dismissal of Vasquez as a defendant. Because Blair has failed to state a claim against the other defendants, he has no claim based on Vasquez's failure to supervise them.

AFFIRMED.

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The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a), Ninth Circuit Rule 34-4

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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3