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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

F I LED

United States Court of Appeals

Tenth Circuit

April 18, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

RONNIE BRUSCINO,

Plaintiff - Appellant,

v.

MICHAEL V. PUGH; E.J.

GALLEGOS; JENNIFER GRUNDY;

RANDY WATSON; DAN SCHOFF;

JOHN DOE COLLINS; JOHN DOE

DERR; JOHN DOE GURDIAN; JOHN

DOE GRISBY; UNITED STATES OF

AMERICA; and Unknown Federal

Employees,

Defendants - Appellees.

No. 06-1182

(D.C. No. 02-CV-2362-LTB-PAC)

(D. Colo.)

ORDER AND JUDGMENT

*

Before LUCERO, Circuit Judge, BRORBY, Senior Circuit Judge, and

McCONNELL, Circuit Judge.
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Ronnie Bruscino, a federal prisoner proceeding pro se, appeals the district

court’s grant of summary judgment dismissing his claims under Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),

and the Federal Tort Claims Act (“FTCA”). We AFFIRM.

Bruscino is an inmate of the United States Penitentiary Administrative

Maximum (“ADX”) in Florence, Colorado. He claims that ADX employees have

taken his mail and personal property, and allowed inmate informants to examine

his mail as part of a scheme to manufacture charges against him. In support of

his First Amendment Bivens claims, Bruscino alleges the following: (1) In July

2000, Randy Watson opened a piece of Bruscino’s legal mail and gave it to

inmate informants to read, delaying its delivery until August 1, 2000;

(2) Sometime after August 2000, Watson, Dan Schoff, E.J. Gallegos, and Michael

Pugh allowed inmate informants to read Bruscino’s mail; (3) Schoff improperly

rejected Bruscino’s outgoing mail in September 2001; (4) “John Doe” Collins and

Gallegos refused to allow Bruscino to correspond with other ADX inmates,

preventing him from obtaining affidavits; (5) In November 2000 “John Doe”

Grisby did not allow Bruscino to receive a news article from his attorney, and

opened a letter from his attorney outside Bruscino’s presence; and (6) Pugh and

Jennifer Grundy knew of and acquiesced in the allegedly unconstitutional conduct

described above. Bruscino also seeks damages under the FTCA for prison

officials’ alleged destruction and confiscation of his personal property. 
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A magistrate judge recommended Bruscino’s FTCA claim be dismissed for

lack of subject matter jurisdiction. The FTCA’s limited waiver of sovereign

immunity does not extend to claims “arising in respect of the . . . detention of any

goods, merchandise, or other property by any officer of customs or excise or any

other law enforcement officer.” 28 U.S.C. § 2680(c). Concluding that prison

officials constitute “other law enforcement officer[s],” the magistrate judge

recommended holding that sovereign immunity robbed the court of jurisdiction. 

The magistrate judge also recommended that summary judgment be granted

against Bruscino on his Bivens claims. She noted that Bruscino’s primary

evidence suggesting that defendants had opened his mail was inadmissible

hearsay. Although it appeared that the August 2000 letter had been opened prior

to Bruscino’s receipt of it, there was no evidence of an improper motive behind

the opening. She concluded that a three-week delay in mail delivery, without any

indication of improper motive, did not rise to the level of a constitutional

violation. See Smith v. Maschner, 899 F.2d 940, 943-44 (10th Cir. 1990).

Regarding Bruscino’s claim that Schoff improperly refused to send his

September 2001 mail, the magistrate judge recommended a finding that the letter

contained information intended for another inmate. She recommended dismissing

this claim because regulating inmate-to-inmate communication is “reasonably

related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89

(1987). 
-4-

The magistrate judge also recommended ruling that Bruscino had no right

to procure statements from other inmates because he was not (at that point)

involved in any pending legal proceedings. See 28 C.F.R. § 540.17. Finally, as

to the claims regarding Grisby, the magistrate judge recommended finding that

the restriction of the newspaper article in question was also “reasonably related to

legitimate penological interests.” Turner, 482 U.S. at 89. 

Over Bruscino’s objections, the district court adopted the magistrate

judge’s recommendation in full and dismissed Bruscino’s case. Bruscino now

appeals. 

“We review the district court’s grant of summary judgment de novo,

applying the same legal standard that should have been used by the district court.”

Rivera v. City & County of Denver, 365 F.3d 912, 920 (10th Cir. 2004)

(quotation and alteration omitted). Summary judgment is appropriate “if the

pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c). Having carefully reviewed the parties’ briefs, the

record on appeal, and the pertinent law, we AFFIRM the judgment of the district 
-5-

court for substantially the reasons stated in the February 21, 2006,

recommendation of the magistrate judge.

Entered for the Court

Carlos F. Lucero

Circuit Judge