* This order and judgment is not binding precedent, e xcept under the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. 

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

### JAN 11 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

MARCUS P. DUNLAP,

Plaintiff-Appellant,

v. STEVE HARGETT; MICHAEL DAVID; CAPTAIN CROSS; CARL B, medical assistant; KARL GHELARDUCCI,

Defendants-Appellees. No. 99-6114 (D.C. No. 98-CV-184) (W.D. Okla.)

ORDER AND JUDGMENT *

Before EBEL , KELLY , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral1 Dunlap later retained counsel, who also represents him on appeal. -2- argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Plaintiff Marcus P. Dunlap appeals from an order o f the district court granting defendants’ motion for summary judgment inthis case brought pursuant to 42 U.S.C. § 1983 . We affirm. Dunlap brought this action pro se, 1 contending that defendants violated his First and Fourth Amendment rights by subjecting himto a body cavity search for contraband. A magistrate judge issued findings anda recommendation. Dunlap filed objections to the magistrate judge’s report; the district court reviewed these objections, and granted summary judgment for defend ants. On appeal, Dunlap argues that defendants’ evidence did not conform to the requirements of Fed. R. Civ. P. 56 and that the dis trict court erred when it concluded no reasonable person could find for plaintiff. Dunlap contends that incident reports cannot be considered on summary ju dgment motions because they contain hearsay and would not be admissible at tria l. He also asserts that one affidavit is invalid because it is not based on per sonal knowledge. “We review the entry of summary judgment de novo, d rawing all reasonable inferences in favor of the nonmovants.” Hulsey v. Kmart, Inc. , 43 F.3d 555, 557 (10th Cir. 1994). The moving party must show there is no-3-

genuine issue as to any material fact and it is ent itled to judgment as a matter of law. See id. The nonmovant must “go beyond the pleadings” and submit materials which designate “‘specific facts showing that there is a genuine issue for trial.’” Celotex Corp. v. Catrett , 477 U.S. 317, 324 (1986) (quoting Fed. R. Civ. P. 56(e)). If the nonmovant “does not so resp ond, summary judgment, if appropriate, shall be entered against” the nonmovan t. Rule 56(e). The appendix submitted to this court contains no in dication that plaintiff attempted to meet his burden as required. The spec ial report, ordered by the court pursuant to Martinez v. Aaron , 570 F.2d 317 (10th Cir. 1978), “is treated like a n affidavit.” Hall v. Bellmon , 935 F.2d 1106, 1111 (10th Cir.1991). The report is intended “to aid in determining which facts alleged in the complaint [a]re relevant, accurate, and subject to bona fide dispute . . . .” Martinez v. Chavez , 574 F.2d 1043, 1046 (10th Cir. 1978). The court cannot “accept the factual findings of the prison investigation when the plain tiff has presented conflicting evidence.” Hall , 935 F.2d at 1111. Dunlap has not presented any evidence to contest th e special report. He merely states that the incident reports “possibly c ontain hearsay,” appellant’s br. at 3, and would not be admissible at trial. Dunlap appears to concede that the only evidence before the district court was the spe cial report, but contends that he-4-

need not dispute it because the report is insuffici ent to justify the grant of summary judgment. Absent such evidence, the reportstands. Prisoners “retain a limited constitutional right to bodily privacy . . . .” Hayes v. Marriott , 70 F.3d 1144, 1146 (10th Cir. 19 95). However, that right is constrained by the requirements of prison administration. See id. The materials submitted to this court show a rational relationshi p between the strip search and the legitimate governmental interest in not permitting contraband in the prison. Dunlap has not shown, on the record submitted here, that the prison officials’ suspicions and the resulting search were not justif ied. The judgment of the United States District Court fo r the Western District of Oklahoma is AFFIRMED.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge