* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** After examining the briefs and appellate record, this panel has determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2)(c); 10th Cir. R. 34.1(G). The case is therefore ordered submitted wi thout oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 14 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ALEJANDRO RODRIGUEZRODRIGUEZ,

Plaintiff-Appellant, No. 00-3064

v. D. Kansas UNITED STATES OF AMERICA, MIKE ADAMS, Warden,

Defendants-Appellees. (D.C. No. 98-CV-3352-JWL)

ORDER AND JUDGMENT *

Before HENRY, BALDOCK , and LUCERO , Circuit Judges. **

I. BACKGROUND Mr. Rodriguez-Rodriguez, appearing pro se, is a fed eral prisoner who appeals the district court’s grant of summary judgm ent to defendants on his-2-

Federal Tort Claims Act (“FTCA”) action. At the ti me of the challenged acts, Mr. Rodriguez-Rodriguez was housed at the United States Penitentiary in Leavenworth, Kansas. Before the district court, Mr . Rodriguez-Rodriguez raised several claims under the FTCA; on appeal, he raises challenges involving one instance of seized belongings. Specifically, Mr. Rodriguez-Rodriguez seeks damages of $400.00 for the allegedly wrongful seizure and subsequent loss of his set of platinum false teeth during an allegedly ill egal search of his cell by Bureau of Prisons (“BOP”) agents. In response, the BOP as serts the false teeth had been altered for use as a weapon and were seized as contraband, pursuant to 28 C.F.R. § 533.13(a). The district court agreed with the BO P and dismissed Mr. Rodriguez-Rodriguez’s claims. For the reasons set forth below, we affirm.

II. DISCUSSION A. Standard of Review We review the grant of summary judgment de novo, ap plying the same legal standard used by the district court pursuant to Fe d. R. Civ. P. 56(c). Summary judgment should be granted where, taking the facts in the light most favorable to the non-moving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Simms v. State of Oklahoma , 165 F.3d 1321, 1326 (10th Cir. 1999).-3-

B. Unreasonable Search and Seizure As to Mr. Rodriguez-Rodriguez’s argument that BOP o fficials illegally searched his cell, prisoners are not protected unde r the Fourth Amendment from unreasonable searches of their prison cells or fromthe wrongful seizure of property contained in their cells because “the Fourth Amendment does not establish a right to privacy in prisoners’ cells.” Hayes v. Marriott , 70 F.3d 1144, 1146 (10th Cir. 1995) (citing Hudson v. Palmer , 468 U.S. 517, 522- 30 (1984)). Therefore, Mr. Rodriguez-Rodriguez’s Fourth Amendme nt claim based on his contention that the BOP officials violated his right against unreasonable searches and seizures in his prison cell necessarily fails.

3. Federal Tort Claims Act Kansas law recognizes an action in conversion for “an unauthorized assumption and exercise of the right of ownership o ver goods or personal chattels belonging to another, to the alteration of their co ndition or the exclusion of the owner's rights.” Watkins v. Layton , 324 P.2d 130, 134 (Kan. 1958). The FTCA permits the United States to be held liable fo r certain tort claims “in the same manner and to the same extent as a private ind ividual under like circumstances.” 28 U.S.C. § 2674. Conversion clai ms are permitted under the
FTCA. See 28 U.S.C. § 2680(h).-4-

As the district court noted, pursuant to 28 C.F.R. § 533.13(a), BOP officials may “seize any item in the institution which has be en identified as contraband whether the whether the item is found in the physic al possession of an inmate, in an inmate's living quarters, or in common areas of the institution.” The record indicates that a few months before the challenged s eizure, Mr. RodriguezRodriguez received an incident report for possessio n of a dangerous weapon for possessing an “ice pick-type shank,” and a sharpene d tablespoon. Rec. doc. 22, Ex. A (Declaration of M.E. Doucette-Lunstrum). We must “accord deference to a prison’s choice of r egulations employed to implement valid penological goals.” Shabazz v. Parsons , 127 F.3d 1246, 1249 (10th Cir. 1997); Werner v. McCotter , 49 F.3d 1476, 1479-80 (10th Cir. 1995). Courts should continue to give “due deference to th e experience and expertise of prison and jail administrators in establishing nece ssary regulations and procedures to maintain good order, security and discipline, co nsistent with consideration of costs and limited resources.” (quoting S. Rep. No. 111, at 1900, reprinted in 1993 U.S.C.C.A.N. 1892, 1898-1901). Here, Mr. Rodriguez-Rodriguez suggests no “alternat ive that [would] fully accommodate” his rights at de minimis cost to the v alid penological interests of order and security. Shabazz , 127 F.3d at 1249. Upon discovery of the altered-5-

platinum teeth with sharpened metal edges, the BOP agents were well within their authority to seize the item. After seizing the dentures, the BOP agents sent the item to Staff Dental Officer Dr. Dan Price, D.D.S., for a determination of whether the dentures were functional dental prosthetics. Dr. Price concludedthat the owner of the dentures was attempting to make a crude pair of knives or sh anks. Upon this determination, the BOP officials were authorized to retain the dentures for disciplinary action or prosecution, or both. The B OP was then authorized to destroy or otherwise dispose of the seized item. See 28 C.F.R. §§ 553.13(b)(2)(v), 553.12(b)(1) (“Staff shall consid er as hard contraband any item which poses a serious threat to the security of an institution and which ordinarily is not approved for possession by an inmate or for admission into the institution. Examples of hard contraband include weapons, intoxi cants, and currency (where prohibited).”). We hold that the BOP’s actions wer e not an “unauthorized assumption” or “alteration” of the condition of personal chattels, see Watkins , 324 P.2d at 134, but rather an authorized seizure o f hard contraband. We note that Mr. Rodriguez-Rodriguez is proceeding pro se, and is entitled to a liberal construction of his pleadings. See Haines v. Kerner , 404 U.S. 519, 520-21 (1972). This means that if the court can re asonably read the pleadings to state a valid claim on which the plaintiff could pr evail, it should do so despite the-6-

plaintiff’s failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction , or his unfamiliarity with pleading requirements. At the same time, we do notbelieve it is the proper function of the district court to assume the role o f advocate for the pro se litigant.
See Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir.1991). A court “wi ll not supply additional facts, [or] construct a legal the ory for plaintiff that assumes facts that have not been pleaded.” Dunn v. White , 880 F.2d 1188, 1197 (10th Cir. 1989). Under this liberal construction of Mr. Rodriguez-Ro driguez’s pleadings, we hold that defendants were entitled to summary judgm ent on his FTCA claim and we AFFIRM the district court’s order. Entered for the Court,

Robert H. Henry Circuit Judge