*This order and judgment is not binding precedent, except under the doctrines of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

UNITED STATES COURT OF APPEALS

Filed 4/11/96

TENTH CIRCUIT

DAVID ZUCCASELLINI,

Plaintiff - Appellant, No. 95-4168

v. D. Utah

JOHN P. STONE, caseworker, Lone Peak

prison facility; KEVIN BROWN, social

worker, Wasatch prison facility,

Defendants - Appellees.

(D.C. No. 95-CV-677) 

ORDER AND JUDGMENT*

Before ANDERSON, BARRETT, and LOGAN, 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.
1The amended complaint omits the details, but Zuccasellini clarifies in later

pleadings that the nightmares “are about him committing suicide in a Kamikaze fashion

that has periodically waken[ed] the plaintiff up in a cold sweat.” Opp’n to the

Recommendations for Dismissal at 1 ¶ 2, R. Vol. I.

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Appellant David Zuccasellini, a prisoner incarcerated at the Central Utah

Correctional Facility in Gunnison, Utah, filed a pro se, in forma pauperis civil rights

complaint under 42 U.S.C. § 1983, alleging violations of the Fifth and Fourteenth

Amendments against two Utah Department of Corrections employees. He later amended

his complaint, making substantially the same allegations with additional details. The case

was referred to a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B), who

recommended dismissing the amended complaint as frivolous under 28 U.S.C. § 1915(d). 

The district court adopted the recommendation and dismissed the case, and Zuccasellini

filed this appeal. We affirm.

Zuccasellini’s amended complaint alleges the following: On April 26, 1994,

Zuccasellini told defendant John P. Stone, a caseworker at the Lone Peak prison facility,

about nightmares Zuccasellini had been having.1

 See Am. Compl. at 2 ¶ 1, R. Vol. I. 

Stone offered to help Zuccasellini through defendant Kevin Brown, a social worker at the

Wasatch/Timpanogos prison facilities, provided Zuccasellini wrote down the details of

the nightmares. Id. ¶ 2. Stone subsequently asked Zuccasellini on two occasions if he

had written down the details yet, expressing concern about helping Zuccasellini before he
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was paroled to a halfway house and about helping Zuccasellini “so that he would not

re-offend.” Id. ¶¶ 3-4.

After Zuccasellini submitted a written statement about his dreams, Stone and

Brown submitted documents about his nightmares to the Board of Pardons, without first

confronting him. Id. ¶¶ 5-6. After an interview with Zuccasellini, Brown submitted

another document to the Board, stating that Zuccasellini was a threat to the community

because of his “recurring nightmares.” Id. at 3 ¶¶ 7-8. Stone then submitted to

Zuccasellini a “prison level reassessment form” in an attempt to “rescind his prison level

6 to a level three (3).” Id. ¶ 9. Stone also “threatened” Zuccasellini, “stating that he and

his friend (defendant #2) Kevin Brown will do their best to bury the plaintiff deep in the

prison system.” Id. ¶ 10.

On May 25, 1994, Zuccasellini was transferred to the Gunnison facility without

any disciplinary sanctions, on the recommendation of defendants Stone and Brown. Id.

¶ 11. As a result of the defendants’ alleged conspiracy, Zuccasellini lost his “prison level

six,” was “transferred to a level two facility,” and had his parole date revoked, allegedly

denying him a liberty interest and causing him to suffer mental and physical anguish. Id.

¶ 12; id. at 4.

The magistrate judge determined that Zuccasellini “appears to be claiming that his

parole date was revoked as a result of the information Brown and Stone gave the Board of

Pardons, and that he was transferred from a minimum level facility to the medium level
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CUCF.” Report & Recommendation at 3, R. Vol. I. He then found that Zuccasellini

“appears to be claiming that his due process rights were violated when Brown and Stone

submitted information to the Board of Pardons about his recurring nightmares.” Id. The

magistrate judge relied on case law establishing that Utah’s parole statutes do not create a

liberty interest in a specific parole date, see, e.g., Malek v. Haun, 26 F.3d 1013, 1015-16

(10th Cir. 1994), and concluded that Zuccasellini has no right to be conditionally released

on parole before the expiration of his valid sentence. See Greenholtz v. Inmates, 442

U.S. 1, 7 (1979). Finding no arguable legal basis for a protected liberty interest and

insufficient factual allegations to indicate a conspiracy to revoke Zuccasellini’s parole,

the magistrate judge recommended dismissing the complaint as frivolous under

§ 1915(d). See Abbott v. McCotter, 13 F.3d 1439, 1440 (10th Cir. 1994). The district

court agreed and adopted the magistrate judge’s recommendation. See Mem. Decision &

Order, R. Vol. I.

We review dismissal of a complaint under § 1915(d) for abuse of discretion,

liberally construing a plaintiff’s pro se pleadings. Abbot, 13 F.3d at 1440. Dismissal is

proper if the claims lack an arguable basis in law or fact. Id. On appeal, Zuccasellini

does not take issue with the cases cited by the magistrate judge establishing that Utah’s

parole statutes do not create a liberty interest. Instead he argues that he “knows that

parole is a privilege, and he believes that his liberty interest in that privilege has been

violated.” Appellant’s Opening Br. at 3 ¶ 4. As the magistrate judge noted, nothing in
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that argument or in the rest of Zuccasellini’s amended complaint, including his

allegations relating to revocation of his parole date or of a conspiracy to bring about that

revocation, identifies a liberty interest that would provide an arguable basis for a claim

under the Due Process Clause. Accordingly, we affirm the decision of the district court

on this issue for substantially the reasons stated in the Report and Recommendation.

Zuccasellini’s amended complaint also alleges that the defendants caused him to

lose his “level six” classification and to be transferred from a lower to a higher level

security facility, in violation of a protected liberty interest. See Am. Compl. at 3 ¶ 12. 

The magistrate judge acknowledged this allegation but did not address it. See Report &

Recommendation at 3, R. Vol. I. Zuccasellini raised the issue again in his objection to the

Report and Recommendation, citing case law in support. See Opp’n to

Recommendations for Dismissal at 1-2, R. Vol. I. The district court likewise recognized

the allegation but did not address it. See Mem. Decision & Order at 2, R. Vol. I. 

Zuccasellini now raises it again on appeal. See Appellant’s Opening Br. at 3 ¶ 3.B.

While “[i]t is the general rule . . . that a federal appellate court does not consider

an issue not passed upon below,” Singleton v. Wulff, 428 U.S. 106, 120 (1976), there are

circumstances in which doing so is appropriate, “as where the proper resolution is beyond

any doubt.” Id. at 121. Such is the case here. The Constitution confers no right to a

particular prison classification or to placement in a particular prison. See, e.g., Olim v.

Wakinekona, 461 U.S. 238, 244-46 (1983); Bailey v. Shillinger, 828 F.2d 651, 652 (10th
2All other causes of action that may be construed from the complaint have been

waived because they were not pressed in the district court or this court. See Moore v.

United States, 950 F.2d 656, 659 (10th Cir. 1991) (failure to object to magistrate judge’s

findings or recommendation waives challenge to those issues); Bledsoe v. Garcia, 742

F.2d 1237, 1244 (10th Cir. 1984) (issues not raised on appeal deemed waived).

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Cir. 1987). A liberty interest in this context may only arise from mandatory language in

state law and may still be subject to interference by the state if the procedures attendant

upon the deprivation are constitutionally sufficient. Kentucky Dep’t of Corrections v.

Thompson, 490 U.S. 454, 460-63 (1989). Moreover, the deprivation must result in a

restraint that “imposes atypical and significant hardship on the inmate in relation to the

ordinary incidents of prison life.” Sandin v. Conner, 115 S. Ct. 2293, 2300 (1995). 

Given those standards, Zuccasellini’s amended complaint fails to allege facts relating to

his reclassification and transfer from which a due process claim -- or, for that matter, any

other claim -- may properly be inferred. Although we liberally construe a pro se

plaintiff’s pleadings, “we will not supply additional facts, nor will we 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), cert. denied, 493 U.S. 1059 (1990). Because

Zuccasellini’s reclassification and transfer allegation fails to raise an arguable legal claim

against the defendants, it was properly dismissed as frivolous under § 1915(d).2
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AFFIRMED.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge