                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                       September 16, 2005
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk


    LEROY BUHL,

                Plaintiff-Appellant,

    v.                                                  No. 03-1501
                                                 (D.C. No. 02-CV-992 (OES))
    MARY SOSA, Assistant Inmate                           (D. Colo.)
    Systems Manager,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before McCONNELL , HOLLOWAY , and PORFILIO , 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(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      This order and judgment is not binding precedent, except under the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. 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.
       Plaintiff Leroy Buhl, a federal prisoner proceeding pro se, appeals the

district court’s dismissal of his civil rights     Bivens 1 action alleging his rights were

violated when his personal property, including items he claims were necessary to

his religious practices, was confiscated when he was transferred to the United

States Penitentiary–Administrative Maximum in Florence, Colorado. In a

thorough order, the magistrate judge recommended entering judgment in favor of

defendant, and the district court adopted the recommendation after a de novo

review. We affirm.

                                     Standards of Review

       The district court’s judgment was entered pursuant to Rule 56 of the

Federal Rules of Civil Procedure (summary judgment), and 28 U.S.C.

§ 1915(e)(2)(B)(ii) (dismissal for failure to state a claim upon which relief may

be granted). We review de novo either type of order.           Gaines v. Stenseng ,

292 F.3d 1222, 1224 (10th Cir. 2002) (dismissal under § 1915(e)(2)(B)(ii));

McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir. 1998)

(summary judgment). In doing so, we construe the complaint in the light most

favorable to the plaintiff.    Curley v. Perry , 246 F.3d 1278, 1281 (10th Cir. 2001);

McKnight , 149 F.3d at 1128. “Dismissal of a pro se complaint for failure to state



1
     Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics               ,
403 U.S. 388 (1971).

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a claim is proper only 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 v. Kan. Dep’t of Corr. , 165 F.3d 803, 806 (10th Cir. 1999).   Summary

judgment is appropriate if there is no genuine issue of material fact and the

moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56(c). Because Mr. Buhl is

representing himself on appeal, his pleadings will be liberally construed. See

Haines v. Kerner, 404 U.S. 519, 520 (1972).

                                        Merits

      On appeal, Mr. Buhl challenges the district court’s rulings on his claims

that, (1) he was denied his personal property necessary to practice his religion,

(2) various other items of his personal property were also improperly denied him,

(3) his right to equal protection was abridged, (4) he was denied his due process

rights, and (5) defendant retaliated against him for exposing the theft of his

property. He maintains that the United States Constitution, federal statutes, and

prison regulations require that his personal property be returned to him or that he

be compensated for the property that was not returned, and that he be

compensated for defendant’s retaliation.

      We have carefully reviewed the record on appeal, as well as the briefs

submitted by the parties. Applying the standards set out above, we affirm the


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judgment for substantially the same reasons stated in the magistrate judge’s

August 6, 2003 recommendation, as adopted by the district court.

                               Motion for Reconsideration

       Mr. Buhl also appeals the district court’s order denying reconsideration of

the judgment. We review the district court’s denial of a motion to reconsider for

an abuse of discretion.   Wright ex rel. Trust Co. of Kan. v. Abbot Labs., Inc.   ,

259 F.3d 1226, 1235 (10th Cir. 2001).      Under this standard, we will affirm the

decision to deny reconsideration unless it was “arbitrary, capricious, whimsical,

or manifestly unreasonable.”     Id. at 1236.

       In addition to adopting the magistrate judge’s recommendation to enter

judgment in defendant’s favor, the district court’s judgment denied Mr. Buhl’s

post-recommendation motion to supplement jurisdiction, which sought to invoke

the Federal Tort Claims Act (FTCA). In his motion to reconsider the judgment,

Mr. Buhl argued that he had exhausted his FTCA administrative remedies, and

that the judgment was not warranted. Mr. Buhl did not include the FTCA claim in

his complaint; therefore, it was not properly before the court. Moreover,

Mr. Buhl did not demonstrate any error in the judgment. Therefore, the district

court did not abuse its discretion in denying the motion to reconsider.




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                                        Conclusion

       To the extent Mr. Buhl rests his appellate argument on evidence not

presented to the district court,   see Aplt. Reply Br. at 4 (referring to alleged

remark of prison official on March 25, 2004), we decline to consider it.      See

Wilburn v. Mid-South Health Dev., Inc.      , 343 F.3d 1274, 1280 (10th Cir. 2003)

(holding issue not raised in district court waived).

       Mr. Buhl has renewed in this court his motion to proceed without

prepayment of costs and fees. The motion is GRANTED. Mr. Buhl is reminded

that he is obligated to continue making partial payments until the entire fee has

been paid. Mr. Buhl’s motion for sanctions is DENIED.

       The judgment of the district court is AFFIRMED. The mandate shall issue

forthwith.



                                                        Entered for the Court



                                                        William J. Holloway, Jr.
                                                        Circuit Judge




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