* The case is unanimously ordered submitted without o ral argument pursuant

to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G ). This order and judgment is not binding precedent, except under the doctrines o f law of the case, res judicata, and collateral estoppel.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 

### MAR 15 2002 

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

JOHNNY DAVID ESTRADA,

Plaintiff - Appellant,

v. CAPTAIN KRUSE,

Defendant - Appellee. No. 01-1381 (D.C. No. 00-B-1896) (D. Colorado)

ORDER AND JUDGMENT *

Before KELLY , BRISCOE , and LUCERO , Circuit Judges.

Plaintiff Johnny D. Estrada, a prisoner of the Stat e of Colorado appearing pro se, appeals from the district court’s dismissal under Fed. R. Civ. P. 12(b)(6) of his civil rights suit brought under 42 U.S.C. § 1983. He also moves for leave to proceed on appeal in forma pauperis. We have ju risdiction under 28 U.S.C. § 1291.-2-

Plaintiff asserted five claims, four of which were dismissed sua sponte by the district court. Plaintiff asserted in his rema ining claim that he was subjected to cruel and unusual punishment when he was held fo r four nights and five days in a stripped basement intake cell in September 199 8 with minimal clothing and bedding, no personal hygiene items, and no cleaning supplies for the cell. He later moved to add another plaintiff and other defe ndants, and also moved to amend his complaint to add an allegation that he co uld not sleep well while confined in his basement cell because it was cold. Defendant moved to dismiss under Fed. R. Civ. P. 12 (b)(6). The magistrate judge considered plaintiff’s claim on the merits, r ecommending that his motions be denied and the complaint dismissed. The magistr ate judge reasoned that plaintiff failed to allege or demonstrate, even in his tendered amended complaint, that he suffered physical injury as a result of his confinement, as required by 42 U.S.C. § 1997e(e). The magistrate judge further de termined that plaintiff’s claim for punitive damages failed because he did not showthat defendant’s actions were motivated by evil motive or intent, or involved rec kless or callous indifference to plaintiff’s federally protected rights. See Smith v. Wade , 461 U.S. 30, 56 (1983). Finally, the magistrate judge concluded that plaint iff’s claims of inhumane treatment did not rise to the level of a constituti onal violation in any event.-3-

The district court reviewed plaintiff’s objections de novo, adopted the magistrate judge’s recommendation, denied plaintiff’s motions, and dismissed the complaint. “We review the sufficiency of a complai nt de novo . . . and will uphold a dismissal [under Fed. R. Civ. P. 12(b)(6)] only when it appears that the plaintiff can prove no set of facts in support of the claims that would entitle the plaintiff to relief.” Roman v. Cessna Aircraft Co. , 55 F.3d 542, 543 (10th Cir. 1995) (quotation omitted). Plaintiff argues on appeal that: (1) the magistrat e judge and the district court improperly used a life-threatening standard f or physical injury; (2) he was improperly denied leave to amend his complaint befo re it was dismissed; (3) the district court’s dismissal was contrary to law; (4) he was improperly denied leave to add parties under Fed. R. Civ. P. 19(a); and (5) counsel should be appointed. We have carefully reviewed the parties’ materials and the record on appeal. We agree with the reasoning of the magistrate judge , as adopted by the district court, that plaintiff’s allegations of cruel and un usual punishment do not rise to the level of a constitutional violation. We also a gree that amendment would have been futile, and his motion to amend was appropriat ely denied. We need not address plaintiff’s other claims of error.-4-

The motion to proceed on appeal in forma pauperis is GRANTED . We remind plaintiff that he is obligated to continue m aking partial payments until the entire fee has been paid. The judgment is AFFIRMED . The mandate shall issue forthwith.

Entered for the Court

Carlos F. Lucero Circuit Judge