                                                                           F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                            FEB 14 2001
                                 TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                 Clerk

 ALEJANDRO RODRIGUEZ-
 RODRIGUEZ,
                                                        No. 00-3064
               Plaintiff-Appellant,
          v.                                                D. Kansas
 UNITED STATES OF AMERICA,                     (D.C. No. 98-CV-3352-JWL)
 MIKE ADAMS, Warden,

               Defendants-Appellees.


                           ORDER AND JUDGMENT           *




Before HENRY, BALDOCK , and LUCERO , Circuit Judges.            **




                                 I. BACKGROUND

      Mr. Rodriguez-Rodriguez, appearing pro se, is a federal prisoner who

appeals the district court’s grant of summary judgment to defendants on his



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        This order and judgment is not binding precedent, except under the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

      **
        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)(c); 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument.
Federal Tort Claims Act (“FTCA”) action. At the time of the challenged acts, Mr.

Rodriguez-Rodriguez was housed at the United States Penitentiary in

Leavenworth, Kansas. Before the district court, Mr. Rodriguez-Rodriguez raised

several claims under the FTCA; on appeal, he raises challenges involving one

instance of seized belongings. Specifically, Mr. Rodriguez-Rodriguez seeks

damages of $400.00 for the allegedly wrongful seizure and subsequent loss of his

set of platinum false teeth during an allegedly illegal search of his cell by Bureau

of Prisons (“BOP”) agents. In response, the BOP asserts the false teeth had been

altered for use as a weapon and were seized as contraband, pursuant to 28 C.F.R.

§ 533.13(a). The district court agreed with the BOP and dismissed Mr.

Rodriguez-Rodriguez’s claims. For the reasons set forth below, we affirm.



                                     II. DISCUSSION

       A. Standard of Review

       We review the grant of summary judgment de novo, applying the same legal

standard used by the district court pursuant to Fed. R. Civ. P. 56(c). Summary

judgment should be granted where, taking the facts in the light most favorable to

the non-moving party, there is no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law.   See Simms v. State of Oklahoma ,

165 F.3d 1321, 1326 (10th Cir. 1999).


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       B. Unreasonable Search and Seizure

       As to Mr. Rodriguez-Rodriguez’s argument that BOP officials illegally

searched his cell, prisoners are not protected under the Fourth Amendment from

unreasonable searches of their prison cells or from the wrongful seizure of

property contained in their cells because “the Fourth Amendment does not

establish a right to privacy in prisoners’ cells.”   Hayes v. Marriott , 70 F.3d 1144,

1146 (10th Cir. 1995) (citing     Hudson v. Palmer , 468 U.S. 517, 522- 30 (1984)).

Therefore, Mr. Rodriguez-Rodriguez’s Fourth Amendment claim based on his

contention that the BOP officials violated his right against unreasonable searches

and seizures in his prison cell necessarily fails.



       3. Federal Tort Claims Act

        Kansas law recognizes an action in conversion for “an unauthorized

assumption and exercise of the right of ownership over goods or personal chattels

belonging to another, to the alteration of their condition or the exclusion of

the owner's rights.”    Watkins v. Layton , 324 P.2d 130, 134 (Kan. 1958). The

FTCA permits the United States to be held liable for certain tort claims “in the

same manner and to the same extent as a private individual under like

circumstances.” 28 U.S.C. § 2674. Conversion claims are permitted under the

FTCA. See 28 U.S.C. § 2680(h).


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       As the district court noted, pursuant to 28 C.F.R. § 533.13(a), BOP officials

may “seize any item in the institution which has been identified as contraband

whether the whether the item is found in the physical possession of an inmate, in

an inmate's living quarters, or in common areas of the institution.” The record

indicates that a few months before the challenged seizure, Mr. Rodriguez-

Rodriguez received an incident report for possession of a dangerous weapon for

possessing an “ice pick-type shank,” and a sharpened tablespoon. Rec. doc. 22,

Ex. A (Declaration of M.E. Doucette-Lunstrum).

       We must “accord deference to a prison’s choice of regulations employed to

implement valid penological goals.”     Shabazz v. Parsons , 127 F.3d 1246, 1249

(10th Cir. 1997); Werner v. McCotter , 49 F.3d 1476, 1479-80 (10th Cir. 1995).

Courts should continue to give “due deference to the experience and expertise of

prison and jail administrators in establishing necessary regulations and procedures

to maintain good order, security and discipline, consistent with consideration of

costs and limited resources.” (quoting S. Rep. No. 111, at 1900,   reprinted in 1993

U.S.C.C.A.N. 1892, 1898-1901).

       Here, Mr. Rodriguez-Rodriguez suggests no “alternative that [would] fully

accommodate” his rights at de minimis cost to the valid penological interests of

order and security.   Shabazz , 127 F.3d at 1249. Upon discovery of the altered




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platinum teeth with sharpened metal edges, the BOP agents were well within their

authority to seize the item.

       After seizing the dentures, the BOP agents sent the item to Staff Dental

Officer Dr. Dan Price, D.D.S., for a determination of whether the dentures were

functional dental prosthetics. Dr. Price concluded that the owner of the dentures

was attempting to make a crude pair of knives or shanks. Upon this

determination, the BOP officials were authorized to retain the dentures for

disciplinary action or prosecution, or both. The BOP was then authorized to

destroy or otherwise dispose of the seized item.      See 28 C.F.R. §§

553.13(b)(2)(v), 553.12(b)(1) (“Staff shall consider as hard contraband any item

which poses a serious threat to the security of an institution and which ordinarily

is not approved for possession by an inmate or for admission into the institution.

Examples of hard contraband include weapons, intoxicants, and currency (where

prohibited).”). We hold that the BOP’s actions were not an “unauthorized

assumption” or “alteration” of the condition of personal chattels,     see Watkins ,

324 P.2d at 134, but rather an authorized seizure of hard contraband.

       We note that Mr. Rodriguez-Rodriguez is proceeding pro se, and is entitled

to a liberal construction of his pleadings.     See Haines v. Kerner , 404 U.S. 519,

520-21 (1972). This means that if the court can reasonably read the pleadings to

state a valid claim on which the plaintiff could prevail, it should do so despite the


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plaintiff’s failure to cite proper legal authority, his confusion of various legal

theories, his poor syntax and sentence construction, or his unfamiliarity with

pleading requirements. At the same time, we do not believe it is the proper

function of the district court to assume the role of advocate for the pro se litigant.

See Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir.1991). A court “will not

supply additional facts, [or] construct a legal theory for plaintiff that assumes

facts that have not been pleaded.”   Dunn v. White , 880 F.2d 1188, 1197 (10th Cir.

1989).

         Under this liberal construction of Mr. Rodriguez-Rodriguez’s pleadings, we

hold that defendants were entitled to summary judgment on his FTCA claim and

we AFFIRM the district court’s order.

                                                Entered for the Court,



                                                Robert H. Henry
                                                Circuit Judge




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