* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral 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 judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

-2-

Before PORFILIO, BARRETT, and KELLY , 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.

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 his 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 alleged 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 Mexico.
-3-

The district court dismissed Mr. Frischenmeyer’s claims 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 violations of the IADA was dismissal

of the charges which had already occurred. The district 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 stated that he could not identify

the ten defendants who beat him without further investigation. The court then

dismissed the physical brutality claim holding that, as the defendants had not been

identified, they could not be served. On appeal, Mr. 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 discretion, see

Schlicher v. Thomas, 111 F.3d 777, 779 (10th Cir. 1997), and discern no such

abuse by the district court in dismissing those claims.

When reviewing the sufficiency of a complaint dismissed 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 uphold the dismissal only if “it

appears that the plaintiff can prove no set of facts in support of the claims that
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would entitle him to relief.” Id. We accept all well-pleaded allegations as true

and construe them in the light most favorable to the plaintiff. See id. 

Mr. Frischenmeyer brought several claims alleging violations of the IADA. 

Presuming these allegations are true, the only remedy 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 dismissed and 

he can obtain no further relief, dismissal 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 responsible for the

attack. “Individual liability under § 1983 must be based on personal involvement

in the alleged constitutional violation.” Foote v. Spiegel, 118 F.3d 1416, 1423

(10th Cir. 1997). While a plaintiff can sue unnamed 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 court, Mr. Frischenmeyer provided

no description.

Mr. Frischenmeyer alleged that a habeas action he had pending in federal

court in Texas was dismissed for failure to prosecute because the New Mexico

authorities did not permit him access to legal materials. Mr. Frischenmeyer did
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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 for the District of New

Mexico is AFFIRMED. This appeal is frivolous, malicious, or fails to state a

claim upon which relief can be granted for the purpose 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