UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CARLOS GARCIA,

Plaintiff - Appellant,

v.

FRED LAWRENCE, Warden of Corrections Corporation of America; (FNU) FORD, Chief of Security; (FNU) HUMPHRIES, Corrections Officer; JOHN DOE, Correction Officer,

Defendants - Appellees.

No. 04-3212

(D. Kansas)

(D.Ct. No. 04-CV-3122-GTV)

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 therefore ordered submitted without oral argument.

Carlos Garcia,1 appearing pro se2 and in forma pauperis,3 appeals the district court's dismissal of his Bivens complaint4 under 28 U.S.C. § 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 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 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