* This order and judgment is not binding precedent, except under the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

F I L E D

United States Court of Appeals

Tenth Circuit

JAN 7 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

 

BRIAN C. FORISSO,

Plaintiff-Appellant,

v.

GARY JOHNSON; DONNA WILPOT;

TIM LEMASTER; EILENE WOODS;

PHILIP MORES,

Defendants-Appellees.

Case No. 97-2228

(D.C. CIV-97-289-MV)

(District of New Mexico)

 

ORDER AND JUDGMENT*

 

Before PORFILIO, KELLY, and HENRY, 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); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.
1 Mr. Forisso also makes the following claim, not addressed by the district

court: “In January of 97 I arrived at PNM-M . . . [and] I was given 8 pts. and was

suppose [sic.] to go to a minimum security, but P. Mares lied about jurisdiction and kept

me in a Level 4 PNM-M.” Rec. vol. I, doc. 8, at 3. While we could hazard a guess at

what Mr. Forisso means by this language, the rule of liberal construction regarding pro se

pleadings does not require us to engage in speculation or conjecture, see Whitney v. New

Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (“This court . . . will not supply

additional factual allegations to round out a plaintiff’s complaint or construct a legal

theory on a plaintiff’s behalf.”), and we decline to do so.

2 We note that Mr. Forisso has been assessed fees in accordance with 28

U.S.C. § 1915(b) but has yet to make any payments. Although our normal procedure

would be to issue a show cause order, in late September we received notice that Mr.

Forisso had a balance of zero in his prison account. Because Mr. Forisso has a history of

a zero account balance, we will not issue the show cause order but simply note that Mr.

Forisso remains obligated to pay the filing fee in full if and when he receives any money

in his prison account.

2

Brain C. Forisso was, at the time he brought this action, a prisoner in New

Mexico state prison, and he alleged violations of his rights under several

constitutional amendments because of: (1) an alleged conspiracy by corrections

officials; (2) “freezing” his prison account; (3) threat of retaliation because of this

lawsuit; and (4) conditions during a “lock down” of his prison, including (a) no

evacuation during a fire, (b) inadequate food rations, (c) cold temperatures

without adequate clothing, and, somewhat paradoxically, (d) “no ventilation” and

(e) “no windows” in the cells to keep out the cold, see Rec. vol. I, doc. 8, at 3.1

Mr. Forisso appeals2 from the district court’s sua sponte order dismissing his pro

se 28 U.S.C. § 1983 complaint with prejudice under 28 U.S.C. § 1915(e)(2) and

Fed. R. Civ. P. 12(b)(6).
3

We review a 12(b)(6) dismissal de novo, see Chemical Weapons Working

Group, Inc. v. United States Dep’t of the Army, 111 F.3d 1485, 1490 (10th Cir.

1997), and a § 1915(e)(2) dismissal for abuse of discretion, see Schlicher v.

Thomas, 111 F.3d 777, 779 (10th Cir. 1997) (applying abuse of discretion

standard to review a dismissal under § 1915(d), the precursor to § 1915(e)(2)). 

Because the district court did not make clear whether its ultimate decision to

dismiss the case was under Rule 12(b)(6) or § 1915(e)(2), we will apply the de

novo standard more favorable to Mr. Forisso.

After a de novo review of the record, we conclude that the district court

thoroughly deciphered and enumerated Mr. Forisso’s claims, appropriately

construed Mr. Forisso’s complaint liberally, applied the relevant law, and

correctly concluded that Mr. Forisso’s claims are “utterly unsupported” by factual

allegations or legal precedent and should be dismissed. Therefore, we affirm for

substantially the same reasons stated in the district court’s memorandum opinion. 

As the district court noted, “The Constitution . . . ‘does not mandate comfortable

prisons,’ and only those deprivations denying ‘the minimal civilized measure of

life’s necessities’ are sufficiently grave to form the basis of an Eighth

Amendment violation.” See Rec. vol. I, doc. 21, at 3 (quoting Wilson v. Seiter,

501 U.S. 294, 298 (1991) and Rhodes v. Chapman, 452 U.S. 337, 349, 347

(1981)). 
4

The mandate shall issue forthwith.

Entered for the Court,

Robert H. Henry

Circuit Judge