                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                February 2, 2010
                 UNITED STATES COURT OF APPEALS A. Shumaker
                                            Elisabeth
                                                                   Clerk of Court
                                 TENTH CIRCUIT



 DAVID ANTHONY McKINNEY,

          Plaintiff-Appellant,

 v.                                                     No. 09-1357
                                              (D.C. No. 1:09-CV-00811-ZLW)
 SARA M. REVELL; SECURITY                                (D. Colo.)
 GUARD APOSTOLOV; SECURITY
 GUARD TRAP,

          Defendants-Appellees.




                          ORDER AND JUDGMENT *

Before HARTZ, SEYMOUR and ANDERSON, Circuit Judges.


      Mr. David A. McKinney appeals the district court’s July 31, 2009 Order

denying his motion to compel and dismissing his civil rights complaint filed

pursuant to Bivens v. Six Unknown Named Agents of Fed. Bur. of Narcotics, 403

U.S. 1988 (1971). The district court dismissed the complaint on the basis that it

      *
       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). This 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not binding precedent, except under the doctrines of law of the case, res judicata,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 10th Cir. R. 32.1 and 10th Cir. R. 32.1.
was legally frivolous. See July 31, 2009 Order at 5. We affirm.

      Mr. McKinney is a prisoner in the custody of the United States Federal

Penitentiary in Florence, Colorado. On April 9, 2009, he filed a pro se complaint

naming as defendants Sarah Revell, Prison Warden at the Florence facility; and

“Apostolov” and “Trap,” both Florence security guards. Mr. McKinney alleged

that on February 18, 2008, he was sent to a special housing unit (“SHU”) and Mr.

Apostolov took his personal property (prescription eye glasses and some legal

papers, see Rec. vol. I, at 19-20), but did not remit the items to Mr. Trap, the

SHU property officer. He also filed a pro se motion seeking leave to proceed in

forma pauperis pursuant to 28 U.S.C. § 1915.

      In an order filed on April 9, the magistrate judge instructed Mr. McKinney

to submit a certified copy of his inmate trust fund account statement to support

his motion to proceed in forma pauperis, and to file his complaint on the proper

form. On May 6, the magistrate judge granted Mr. McKinney’s request to extend

time to cure the deficiencies. On May 15 and June 10, Mr. McKinney filed

motions seeking an order directing the prison warden to return his property,

allegedly so he could cure the deficiencies. The magistrate judge denied the

motions on the basis that Mr. McKinney had failed to demonstrate that he needed

access to the property in order to comply with its April 9 order. The magistrate

judge again ordered Mr. McKinney to cure the deficiencies within thirty days.

      On June 30, Mr. McKinney filed a “Motion to Compel Warden to Return

                                          -2-
Plaintiff’s Legal Property, Eye Ware [sic], etc. . . ,” alleging that without glasses

he could not read the fine print, including the words on the requisite forms for his

case. The district court denied the motion on the basis that Mr. McKinney failed

to explain why he needed his glasses in order to cure the deficiencies, how his

vision, which was sufficient to enable him to file the several prior motions,

prevented him from submitting his complaint on the proper form, 1 or how the

absence of his legal property otherwise impeded his ability to cure the

deficiencies in this case. Accordingly, the court held the complaint was subject to

dismissal for failure to cure the deficiencies.

      The district court nevertheless granted Mr. McKinney’s motion to proceed

in forma pauperis. Interpreting his pro se complaint liberally, the court construed

it to assert a due process claim for deprivation of property. The district court

denied the assertion as legally frivolous under 28 U.S.C. § 1915(e)(2)(B)(I),

reasoning: “Because Mr. McKinney does not allege, and there is no indication in

the complaint, that the loss of his personal property was the result of anything

other than mere negligence, there is no constitutional violation.” See July 31,

2009 Order at 5 (citing Daniels v. Williams, 474 U.S. 327, 328 (1986)).

      In Mr. McKinney’s appeal to us from the district court’s dismissal, he filed

an affidavit challenging the prison institution’s use of the law library as an inmate


      1
        We note that Mr. McKinney has apparently had no difficulty in filling out
the forms for this appeal.

                                          -3-
housing facility, thereby preventing his access to legal materials pertaining to his

case. See McKinney Oct. 9, 2009 Aff. at 1. Although Mr. McKinney may have a

colorable argument on this claim, we decline to reach the issue because it was not

raised before the district court, nor is there any indication in the record that it was

exhausted administratively. See, e.g., Yousef v. Reno, 254 F.3d 1214, 1216 n.1

(10th Cir. 2001) (Bivens action subject to dismissal for failure to exhaust

administrative remedies).

      Having considered the brief and record in this case, we conclude that the

district court was correct to dismiss Mr. McKinney’s complaint as frivolous.

According to the Supreme Court’s decision in Daniels, the due process clause “is

simply not implicated by a negligent act of an official causing unintended loss of

or injury to life, liberty, or property.” 474 U.S. at 328. Mr. McKinney does not

assert an intentional loss or destruction of his property, thus his allegations fall

short of supporting a due process claim. 2 Nor has he explained on appeal what

the missing legal papers are comprised of and why he needs them to file this

lawsuit, the basis for which arose after he was separated from his legal papers.

Accordingly, substantially for the reasons set forth in the district court’s order of




      2
         Even if the conduct was intentional, no due process violation occurs if
there is an adequate alternative state remedy, e.g., a state law conversion claim,
for the loss of property. See Hudson v. Palmer, 468 U.S. 517, 533 (1984).

                                          -4-
July 31, 2009, we AFFIRM the court’s dismissal of Mr. McKinney’s complaint

as legally frivolous under 29 U.S.C. § 1915(e)(2)(B)(i). 3


                                       ENTERED FOR THE COURT


                                       Stephanie K. Seymour
                                       Circuit Judge




      3
        We grant Mr. McKinney’s motion to pay the filing fee in partial payments
and remind him of his continuing obligation to make such payments until the
entire fee has been paid.

                                         -5-
