Bruscino v. Pugh

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
April 18, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
R ON N IE B RU SC IN O ,
Plaintiff - Appellant,
v. No. 06-1182
(D.C. No. 02-CV-2362-LTB-PAC)
M ICHAEL V. PUGH; E.J. (D . Colo.)
G A LLEGO S; JEN N IFER GR UNDY;
RA NDY W ATSO N; DAN SCH OFF;
JO H N D OE C OLLIN S; JO H N DOE
D ERR; JO H N D OE G U RD IA N ; JOHN
D O E G RISB Y; U N ITED STA TES OF
AM ERICA; and Unknown Federal
Employees,
Defendants - Appellees.
OR D ER AND JUDGM ENT *
Before L UC ER O, Circuit Judge, BROR BY, Senior Circuit Judge, and
M cCO NNELL, Circuit Judge.
*
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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Ronnie Bruscino, a federal prisoner proceeding pro se, appeals the district
court’s grant of summary judgment dismissing his claims under Bivens v. Six
Unknown Named Agents of Federal Bureau of N arcotics, 403 U.S. 388 (1971),
and the Federal Tort Claims Act (“FTCA”). W e AFFIRM .
Bruscino is an inmate of the United States Penitentiary Administrative
M aximum (“ADX”) in Florence, Colorado. He claims that ADX employees have
taken his mail and personal property, and allowed inmate informants to examine
his mail as part of a scheme to manufacture charges against him. In support of
his First A mendment Bivens claims, Bruscino alleges the following: (1) In July
2000, Randy W atson opened a piece of Bruscino’s legal mail and gave it to
inmate informants to read, delaying its delivery until August 1, 2000;
(2) Sometime after August 2000, W atson, Dan Schoff, E.J. Gallegos, and M ichael
Pugh allowed inmate informants to read Bruscino’s m ail; (3) Schoff improperly
rejected Bruscino’s outgoing mail in September 2001; (4) “John Doe” Collins and
Gallegos refused to allow Bruscino to correspond w ith other ADX inmates,
preventing him from obtaining affidavits; (5) In November 2000 “John Doe”
Grisby did not allow Bruscino to receive a news article from his attorney, and
opened a letter from his attorney outside Bruscino’s presence; and (6) Pugh and
Jennifer Grundy knew of and acquiesced in the allegedly unconstitutional conduct
described above. Bruscino also seeks damages under the FTCA for prison
officials’ alleged destruction and confiscation of his personal property.
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A magistrate judge recommended Bruscino’s FTCA claim be dismissed for
lack of subject matter jurisdiction. The FTCA’s limited waiver of sovereign
immunity does not extend to claims “arising in respect of the . . . detention of any
goods, merchandise, or other property by any officer of customs or excise or any
other law enforcement officer.” 28 U.S.C. § 2680(c). Concluding that prison
officials constitute “other law enforcement officer[s],” the magistrate judge
recommended holding that sovereign immunity robbed the court of jurisdiction.
The magistrate judge also recommended that summary judgment be granted
against Bruscino on his Bivens claims. She noted that Bruscino’s primary
evidence suggesting that defendants had opened his mail was inadmissible
hearsay. Although it appeared that the August 2000 letter had been opened prior
to Bruscino’s receipt of it, there was no evidence of an improper motive behind
the opening. She concluded that a three-week delay in mail delivery, without any
indication of improper motive, did not rise to the level of a constitutional
violation. See Smith v. M aschner, 899 F.2d 940, 943-44 (10th Cir. 1990).
Regarding Bruscino’s claim that Schoff improperly refused to send his
September 2001 mail, the magistrate judge recommended a finding that the letter
contained information intended for another inmate. She recommended dismissing
this claim because regulating inmate-to-inmate communication is “reasonably
related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89
(1987).
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The magistrate judge also recommended ruling that Bruscino had no right
to procure statements from other inmates because he was not (at that point)
involved in any pending legal proceedings. See 28 C.F.R. § 540.17. Finally, as
to the claims regarding Grisby, the magistrate judge recommended finding that
the restriction of the newspaper article in question was also “reasonably related to
legitimate penological interests.” Turner, 482 U.S. at 89.
Over Bruscino’s objections, the district court adopted the magistrate
judge’s recommendation in full and dismissed Bruscino’s case. Bruscino now
appeals.
“W e review the district court’s grant of summary judgment de novo,
applying the same legal standard that should have been used by the district court.”
Rivera v. City & County of Denver, 365 F.3d 912, 920 (10th Cir. 2004)
(quotation and alteration omitted). Summary judgment is appropriate “if the
pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(c). Having carefully reviewed the parties’ briefs, the
record on appeal, and the pertinent law, we AFFIRM the judgment of the district
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court for substantially the reasons stated in the February 21, 2006,
recommendation of the magistrate judge.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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