                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                             DEC 10 2004
                                    TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 CARLOS GARCIA,

          Plaintiff - Appellant,

 v.                                                       No. 04-3212
                                                          (D. Kansas)
 FRED LAWRENCE, Warden of                         (D.Ct. No. 04-CV-3122-GTV)
 Corrections Corporation of America;
 (FNU) FORD, Chief of Security;
 (FNU) HUMPHRIES, Corrections
 Officer; JOHN DOE, Correction
 Officer,

          Defendants - Appellees.


                             ORDER AND JUDGMENT *


Before SEYMOUR, LUCERO, and O’BRIEN, 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. 34.1.9(G). The case is



      *
          This order and judgment is not binding precedent except under the doctrines of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.
therefore ordered submitted without oral argument.

       Carlos Garcia, 1 appearing pro se 2 and in forma pauperis, 3 appeals the

district court’s dismissal of his Bivens complaint 4 under 28 U.S.C. §


       1
         In the district court, Appellant alternately referred to himself as Carlos Gasca
Garcia and Carlos Garcia Gasca. The district court alternately captioned the case in the
name of “Carlos Garcia” and “Carlos Garcia aka Carlos Gasca.” On appeal, Appellant
refers to himself as Carlos Garcia Gasca. We have captioned the case in the name of
Carlos Garcia and will refer to Appellant by this name.
       2
        We liberally construe pro se pleadings and appellate briefs. Ledbetter v. City of
Topeka, Kan., 318 F.3d 1183, 1187 (10th Cir. 2003). We note Garcia applied for court-
appointed counsel in the district court and repeats his request on appeal. See 28 U.S.C. §
1915(e)(1) (permitting appointment of counsel for indigent plaintiff). The district court
did not rule on the motion. We deem it denied. The Sixth Amendment does not
guarantee the right to counsel in a civil case. MacCuish v. United States, 844 F.2d 733,
735 (10th Cir. 1988). We review denial of counsel in a civil case for abuse of discretion.
Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995). This exists where the denial
of counsel results in fundamental unfairness implicating due process. Williams v. Meese,
926 F.2d 994, 996 (10th Cir. 1991). We consider “the merits of the litigant's claims, the
nature of the factual issues raised in the claims, the litigant's ability to present his claims,
and the complexity of the legal issues raised by the claims.” Id. Because Garcia’s claims
are frivolous, the district court did not err in denying appointment of counsel. For the
same reason, we also decline to appoint counsel.
       3
         The district court authorized Garcia to proceed in forma pauperis in both the
district court and on appeal. Garcia is reminded of his obligation to continue to make
payment until all of his fees are paid in full. He shall satisfy his obligation to the district
court first, followed by payment of his appellate fees.
       4
        Although Garcia filed his complaint under 42 U.S.C. § 1983 (proscribing
unconstitutional action by state agent), the district court properly recharacterized it as a
complaint under Bivens v. Six Unknown Named Agents, 403 U.S. 388, 389 (1971)
(authorizing cause of action for violation of constitutional rights by federal agent)
inasmuch as all named defendants are federal agents. See also Smith v. Kitchen, 156 F.3d
1025, 1028 (10th Cir. 1997) (distinguishing between § 1983 action for alleged
constitutional violation by state agent and Bivens action for same violation by federal
agent).

                                              -2-
1915(e)(2)(B)(ii) for failure to state a claim for relief. Exercising jurisdiction

under 28 U.S.C. § 1291, we dismiss the appeal as frivolous. See §

1915(e)(2)(B)(i).

       Garcia is a federal prisoner. While incarcerated at a federal facility in

Leavenworth, Kansas, 5 correctional officers (acting on a request by the

Immigration and Naturalization Service but without a warrant) searched his cell

and confiscated his legal materials. Within several hours, the materials were

returned to him intact. Garcia then filed a Bivens suit alleging the defendants (the

warden, chief of security and two corrections officers) violated his Fourth

Amendment right to be free from unreasonable search and seizure and his Fifth

Amendment right to due process (access to the courts). 6 Exercising its

responsibility under 28 U.S.C. § 1915A, the district court screened the complaint

and ordered Garcia to show cause why the complaint should not be dismissed for

failure to state a claim. After considering Garcia’s response, the court dismissed

the complaint. Timely appeal followed.

       We review de novo a dismissal pursuant to § 1915(e)(2)(B)(ii). Perkins v.

Kan. Dep’t of Corr., 165 F.3d 803, 806 (10th Cir. 1999). We accept the


       The federal facility in which Garcia was incarcerated was operated by the
       5

Corrections Corporation of America at the time of filing this appeal.
       6
        On appeal, Garcia characterizes his right of access to the courts as being grounded
in the 5th, 6th and 14th Amendments. The due process clause protects the right of access
to the courts. Logan v. Zimmerman Brush Co., 455 U.S. 422, 429-30 (1982).

                                            -3-
allegations in the complaint as true and construe them in a light most favorable to

the plaintiff. This does not mean, however, that we will “supply additional

factual allegations to round out a plaintiff's complaint or construct a legal theory

on a plaintiff's behalf.” Whitney v. N.M., 113 F.3d 1170, 1173-74 (10th Cir.

1997). Nor are we “bound by conclusory allegations, unwarranted inferences, or

legal conclusions.” Hackford v. Babbitt, 14 F.3d 1457, 1465 (10th Cir. 1994).

Dismissal is appropriate “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, 165 F.3d at 806.

      We turn now to Garcia’s complaint. He alleges the defendants violated the

Fourth Amendment in confiscating his legal materials. We easily dispose of this

claim. A prisoner enjoys no Fourth Amendment right in his prison cell. Hudson

v. Palmer, 468 U.S. 517, 526 (1984). This is so even when the search is

instigated by the false accusations of another inmate, as Garcia has alleged. See

id. at 528-30. Next, Garcia complains the defendants, by means of the

confiscation, interfered with his right of access to the courts guaranteed by the

due process clause of the Fifth Amendment. At the time his legal materials were

confiscated, he stood indicted by a federal grand jury for several drug felonies.

This claim also fails. While Garcia certainly enjoys the fundamental right of

access to the courts even as a prisoner to state a claim for deprivation of this right


                                          -4-
he must demonstrate an actual injury that “hindered his efforts to pursue a legal

claim.” Lewis v. Casey, 518 U.S. 343, 346, 351 (1996). This he has failed to do

in other than a conclusory fashion. A single instance of removal of his legal

materials for a few hours does not constitute a deprivation of Garcia’s right of

access to the courts.

       Accordingly, we DISMISS the appeal as frivolous. 7

                                          Entered by the Court:

                                          Terrence L. O’Brien
                                          United States Circuit Judge




       7
        Garcia accumulates two strikes as a result of this appeal, one due to the district
court dismissal for failure to state a claim and one due to our dismissal of the appeal as
frivolous. See 28 U.S.C. § 1915(g); Jennings v. Natrona County Det. Ctr. Med. Facility,
175 F.3d 775, 780-81 (10th Cir. 1999).

                                            -5-
