Filed: Patrick Fisher
Uploaded by
Scribd Government DocsFiled: Patrick Fisher
Uploaded by
Scribd Government DocsF I L E D
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
United States Court of Appeals
Tenth Circuit
September 16, 2005
PATRICK FISHER
Clerk
LEROY BUHL,
Plaintiff-Appellant,
v.
MARY SOSA, Assistant Inmate
Systems Manager,
No. 03-1501
(D.C. No. 02-CV-992 (OES))
(D. Colo.)
Defendant-Appellee.
ORDER AND JUDGMENT
Before McCONNELL , HOLLOWAY , and PORFILIO , Circuit Judges.
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)(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This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Plaintiff Leroy Buhl, a federal prisoner proceeding pro se, appeals the
district courts dismissal of his civil rights
Bivens 1 action alleging his rights were
violated when his personal property, including items he claims were necessary to
his religious practices, was confiscated when he was transferred to the United
States PenitentiaryAdministrative Maximum in Florence, Colorado. In a
thorough order, the magistrate judge recommended entering judgment in favor of
defendant, and the district court adopted the recommendation after a de novo
review. We affirm.
Standards of Review
The district courts judgment was entered pursuant to Rule 56 of the
Federal Rules of Civil Procedure (summary judgment), and 28 U.S.C.
1915(e)(2)(B)(ii) (dismissal for failure to state a claim upon which relief may
be granted). We review de novo either type of order.
Gaines v. Stenseng ,
292 F.3d 1222, 1224 (10th Cir. 2002) (dismissal under 1915(e)(2)(B)(ii));
McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir. 1998)
(summary judgment). In doing so, we construe the complaint in the light most
favorable to the plaintiff.
Curley v. Perry , 246 F.3d 1278, 1281 (10th Cir. 2001);
McKnight , 149 F.3d at 1128. Dismissal of a pro se complaint for failure to state
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics
403 U.S. 388 (1971).
-2-
a claim is proper only where it is obvious that the plaintiff cannot prevail on the
facts he has alleged and it would be futile to give him an opportunity to amend.
Perkins v. Kan. Dept of Corr. , 165 F.3d 803, 806 (10th Cir. 1999).
Summary
judgment is appropriate if there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56(c). Because Mr. Buhl is
representing himself on appeal, his pleadings will be liberally construed. See
Haines v. Kerner, 404 U.S. 519, 520 (1972).
Merits
On appeal, Mr. Buhl challenges the district courts rulings on his claims
that, (1) he was denied his personal property necessary to practice his religion,
(2) various other items of his personal property were also improperly denied him,
(3) his right to equal protection was abridged, (4) he was denied his due process
rights, and (5) defendant retaliated against him for exposing the theft of his
property. He maintains that the United States Constitution, federal statutes, and
prison regulations require that his personal property be returned to him or that he
be compensated for the property that was not returned, and that he be
compensated for defendants retaliation.
We have carefully reviewed the record on appeal, as well as the briefs
submitted by the parties. Applying the standards set out above, we affirm the
-3-
judgment for substantially the same reasons stated in the magistrate judges
August 6, 2003 recommendation, as adopted by the district court.
Motion for Reconsideration
Mr. Buhl also appeals the district courts order denying reconsideration of
the judgment. We review the district courts denial of a motion to reconsider for
an abuse of discretion.
Wright ex rel. Trust Co. of Kan. v. Abbot Labs., Inc.
259 F.3d 1226, 1235 (10th Cir. 2001).
Under this standard, we will affirm the
decision to deny reconsideration unless it was arbitrary, capricious, whimsical,
or manifestly unreasonable.
Id. at 1236.
In addition to adopting the magistrate judges recommendation to enter
judgment in defendants favor, the district courts judgment denied Mr. Buhls
post-recommendation motion to supplement jurisdiction, which sought to invoke
the Federal Tort Claims Act (FTCA). In his motion to reconsider the judgment,
Mr. Buhl argued that he had exhausted his FTCA administrative remedies, and
that the judgment was not warranted. Mr. Buhl did not include the FTCA claim in
his complaint; therefore, it was not properly before the court. Moreover,
Mr. Buhl did not demonstrate any error in the judgment. Therefore, the district
court did not abuse its discretion in denying the motion to reconsider.
-4-
Conclusion
To the extent Mr. Buhl rests his appellate argument on evidence not
presented to the district court,
see Aplt. Reply Br. at 4 (referring to alleged
remark of prison official on March 25, 2004), we decline to consider it.
Wilburn v. Mid-South Health Dev., Inc.
See
, 343 F.3d 1274, 1280 (10th Cir. 2003)
(holding issue not raised in district court waived).
Mr. Buhl has renewed in this court his motion to proceed without
prepayment of costs and fees. The motion is GRANTED. Mr. Buhl is reminded
that he is obligated to continue making partial payments until the entire fee has
been paid. Mr. Buhls motion for sanctions is DENIED.
The judgment of the district court is AFFIRMED. The mandate shall issue
forthwith.
Entered for the Court
William J. Holloway, Jr.
Circuit Judge
-5-
