*

 This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th

Cir. R. 32.1.

** After examining the briefs and the appellate record, this three-judge

panel has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th

Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.

FILED

United States Court of Appeals

Tenth Circuit

January 12, 2011

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RICHARD LEE MARTINEZ,

Petitioner-Appellant,

No. 10-1447

(D.C. No. 1:10-CV-01627-ZLW)

(D. of Colo.)

v.

KEVIN MILYARD, Warden of the

Sterling Correctional Facility,

Respondent-Appellee.

ORDER AND JUDGMENT*

Before HARTZ, BRORBY, and TYMKOVICH, Circuit Judges.** 

Richard Martinez, a Colorado state prisoner proceeding pro se, appeals the

district court’s dismissal of his 42 U.S.C. § 1983 civil rights complaint. Having

jurisdiction under 28 U.S.C. § 1291, we AFFIRM the district court’s decision.
1

 In his brief, Martinez presents this claim as a “Due Process: Fourth

Amendment right violation.” Aplt.’s Br. at 3 (emphasis added). However,

because Martinez proceeds pro se, we construe his pleadings liberally and

consider his claim to be a due process violation under the Fourteenth Amendment. 

See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (“A pro se litigant’s

pleadings are to be construed liberally and held to a less stringent standard than

formal pleadings drafted by lawyers.”).

-2-

I. Background

In his amended complaint, Martinez asserted the conditions of confinement

in administrative segregation and the confiscation of items of his personal

property subjected him to cruel and unusual punishment in violation of the Eighth

Amendment. Martinez named the prison warden Kevin Milyard as a defendant.

Finding the claims legally frivolous, the district court dismissed the

amended complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). The court held

Martinez’s allegations failed to demonstrate (1) an injury sufficiently serious to

support a cognizable claim under the Eighth Amendment or (2) that Milyard acted

with deliberate indifference in executing prison procedures. In a subsequent

order, the district court denied Martinez’s motion to appeal in forma pauperis.

Martinez appeals the district court’s dismissal of his amended complaint

and renews his motion to continue in forma pauperis. For the first time on

appeal, Martinez asserts his placement in administrative segregation violated his

due process rights under the Fourteenth Amendment.1
-3-

II. Discussion

Martinez proceeded in forma pauperis below and is subject to the strictures

of § 1915. Under § 1915(e)(2)(B)(i), the district court shall dismiss an in forma

pauperis complaint if its claims are “frivolous or malicious.” A claim is frivolous

“where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams,

490 U.S. 319, 325 (1989). Dismissal is only appropriate “for a claim based on an

indisputably meritless legal theory.” Fogle v. Pierson, 435 F.3d 1252, 1259 (10th

Cir. 2006) (quotations omitted). We review a district court’s dismissal on this

basis for an abuse of discretion. Id. 

After careful review of the record, we conclude the district court did not

abuse its discretion in dismissing Martinez’s complaint as frivolous. To assert a

cognizable claim under the Eighth Amendment a plaintiff must demonstrate both

that the injury he suffered was sufficiently serious and that the defendant acted

with deliberate indifference. See Tafoya v. Salazar, 516 F.3d 912, 916 (10th Cir.

2008). As the district court noted, Martinez failed to demonstrate an injury

sufficiently serious to constitute cruel and unusual punishment under the Eighth

Amendment. Martinez simply made the conclusory statements that the conditions

of his administrative segregation and the confiscation of his personal property

constitute cruel and unusual punishment. Also, Martinez failed to allege facts

indicating Milyard acted with deliberate indifference in executing prison

procedures related to Martinez’s administrative segregation and the confiscation
-4-

of his personal property. In fact, nowhere does Martinez allege any specific link

between actions taken by Milyard and his claims of cruel and unusual

punishment. Because Martinez failed to allege facts that would support an Eighth

Amendment claim the district court properly dismissed his complaint as frivolous.

Martinez did not raise his due process claim before the district court and

thus we do not consider it on appeal. See Fairchild v. Workman, 579 F.3d 1134,

1144 (10th Cir. 2009) (“[W]e ordinarily do not decide issues raised for the first

time on appeal.”).

III. Conclusion

For the foregoing reasons we AFFIRM the dismissal of Martinez’s § 1983

claims. We also DENY Martinez’s motion to proceed in forma pauperis on

appeal and order him to pay the full amount of the filing fee. We remind him of

his obligation to pay the filing fee even on an appeal that has been dismissed. See

Kinnell v. Graves, 265 F.3d 1125, 1129 (10th Cir. 2001).

Entered for the Court,

Timothy M. Tymkovich

Circuit Judge