* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court (continued...) 

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 4 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

MICHAEL J. FRISCHENMEYER,

Plaintiff-Appellant,

v. FORREST G. BUFFINGTON, in his official and individual capacity; JAMES A. JULIAN, Assistant Criminal District Attorney; FRANK GONZALES, McKinley County Sheriff; DANNY ROSS, Gallup Chief of Police; ROBERT ARAGON, Attorney at Law; JOE NICHOLS, Investigator for District Attorney; GARY L. JOHNSON, Director, Texas Department of Criminal Justice; S.O. WOODS, JR., Agreement Officer; JOHN DOE, FBI Agent; GREG DOE, FBI Agent; H. DEAN MCWILLIAMS; JOHN DOES, Unknown Gallup Police Officer and McKinley County Sheriff Deputies; JOHNNY GREEN; BILL SILVA and TIM HANNAH, Gallup City Jailors, Defendants-Appellees. No. 98-2109 (D.C. No. CIV-96-1076-LH)

(D. N.M.)

ORDER AND JUDGMENT ** (...continued)

generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. -2- Before PORFILIO, BARRETT, and KELLY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiff Michael J. Frischenmeyer, proceeding pro se, appeals from an order of the district court dismissing his complaint. We affirm. Mr. Frischenmeyer brought this action pursuant to 42 U.S.C. § 1983 . In his complaint, he asserted several issues concerning hi s transfer from Texas to New Mexico pursuant to the provisions of the Interstate Agreement on Detainers Act (IADA). See 18 U.S.C. App. II; N.M. Stat. Ann. § 31-5-12. In addition to various other claims, Mr. Frischenmeyer also allege d he was attacked in his jail cell after the New Mexico charges were dropped and his petition for a writ of habeas corpus, which was pending in Texas, was dismissed due to his inability to prosecute the case while he was detained in New Mex ico.-3-

The district court dismissed Mr. Frischenmeyer’s cl aims relating to the IADA on the grounds that the Act does not apply to pretrial detainees. The court also noted that the only possible remedy for violat ions of the IADA was dismissal of the charges which had already occurred. The dis trict court dismissed all of his other claims except the physical brutality claims. The court ordered Mr. Frischenmeyer to amend his complaint to name the defendants responsible for beating him. In his response, Mr. Frischenmeyer st ated that he could not identify the ten defendants who beat him without further investigation. The c ourt then dismissed the physical brutality claim holding that, as the defendants had not been identified, they could not be served. On appeal, M r. Frischenmeyer asserts that the district court erred in its rulings. The district court dismissed the complaint prior to service of process on any of the defendants pursuant to both 28 U.S.C. § 1915(e)(2)( B)(i) and Fed. R. Civ. Proc. 12(b)(6)

. We review the § 1915(e) dismissals for abuse of di scretion, see Schlicher v. Thomas , 111 F.3d 777, 779 (10th Cir. 1997), and discern n o such abuse by the district court in dismissing those cla ims. When reviewing the sufficiency of a complaint dismi ssed under Rule 12(b)(6), we examine the complaint de novo. See Coosewoon v. Meridian Oil
Co. , 25 F.3d 920, 924 (10th Cir. 1994). We will uphol d the dismissal only if “it appears that the plaintiff can prove no set of fact s in support of the claims that-4-

would entitle him to relief.” Id. We accept all well-pleaded allegations as true and construe them in the light most favorable to th e plaintiff. See id. Mr. Frischenmeyer brought several claims alleging v iolations of the IADA. Presuming these allegations are true, the only reme dy Mr. Frischenmeyer could obtain would be dismissal of the New Mexico charges. See Nelson v. Carlson , 904 F.2d 560, 561 (10th Cir. 1990). As those charges have been dismi ssed and he can obtain no further relief, d ismissal of the IADA claims was proper. Mr. Frischenmeyer alleged he had been beaten in his cell. However, he did not name the responsible parties in his complaint. His complaint appears to charge defendants Gonzales and Ross as supervisors of those responsi ble for the attack. “Individual liability under § 1983 must be based onpersonal involvement in the alleged constitutional violation.” Foote v. Spiegel , 118 F.3d 1416, 1423 (10th Cir. 1997). While a plaintiff can sue unname d defendants, the plaintiff must provide a description sufficient to identify those involved so process can eventually be served. See Roper v. Grayson , 81 F.3d 124, 126 (10th Cir. 1996). Despite an order directing such by the district cou rt, Mr. Frischenmeyer provided no description. Mr. Frischenmeyer alleged that a habeas action he h ad pending in federal court in Texas was dismissed for failure to prosecute becau se the New Mexico authorities did not permit him access to legal mate rials. Mr. Frischenmeyer did-5-

not identify how any of the named defendants denied him his right to access legal materials necessary to prosecute his Texas action. The judgment of the United States District Court fo r the District of New Mexico is AFFIRMED. This appeal is frivolous, malicious, or fails to st ate a claim upon which relief can be granted for the purp ose of counting "prior occasions" under 28 U.S.C. 1915(g). Mr. Frischenmeyer’s motion to submit newly discovered evidence is DENIED. See Reid v. Oklahoma , 101 F.3d 628, 630-31 (10th Cir. 1996) (On review of district court’s decision, “we may not enlarge the evidentiary record to include material unavailable to the district court.”) , cert. denied , 117 S. Ct. 1707 (1997). The mandate shall issue forthwith.

Entered for the Court

James E. Barrett Senior Circuit Judge