UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BRIAN C. FORISSO,

Plaintiff-Appellant,

v.

GARY JOHNSON; DONNA WILPOT; TIM LEMASTER; EILENE WOODS; PHILIP MORES,

Defendants-Appellees.

Case No. 97-2228

(D.C. CIV-97-289-MV)

(District of New Mexico)

ORDER AND JUDGMENT*

Before PORFILIO, KELLY, and HENRY, 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.

Brain C. Forisso was, at the time he brought this action, a prisoner in New Mexico state prison, and he alleged violations of his rights under several constitutional amendments because of: (1) an alleged conspiracy by corrections officials; (2) "freezing" his prison account; (3) threat of retaliation because of this lawsuit; and (4) conditions during a "lock down" of his prison, including (a) no evacuation during a fire, (b) inadequate food rations, (c) cold temperatures without adequate clothing, and, somewhat paradoxically, (d) "no ventilation" and (e) "no windows" in the cells to keep out the cold, see Rec. vol. I, doc. 8, at 3.1 Mr. Forisso appeals2 from the district court's sua sponte order dismissing his pro se 28 U.S.C. § 1983 complaint with prejudice under 28 U.S.C. § 1915(e)(2) and Fed. R. Civ. P. 12(b)(6).

We review a 12(b)(6) dismissal de novo, see Chemical Weapons Working Group, Inc. v. United States Dep't of the Army, 111 F.3d 1485, 1490 (10th Cir. 1997), and a § 1915(e)(2) dismissal for abuse of discretion, see Schlicher v. Thomas, 111 F.3d 777, 779 (10th Cir. 1997) (applying abuse of discretion standard to review a dismissal under § 1915(d), the precursor to § 1915(e)(2)). Because the district court did not make clear whether its ultimate decision to dismiss the case was under Rule 12(b)(6) or § 1915(e)(2), we will apply the de novo standard more favorable to Mr. Forisso.

After a de novo review of the record, we conclude that the district court thoroughly deciphered and enumerated Mr. Forisso's claims, appropriately construed Mr. Forisso's complaint liberally, applied the relevant law, and correctly concluded that Mr. Forisso's claims are "utterly unsupported" by factual allegations or legal precedent and should be dismissed. Therefore, we affirm for substantially the same reasons stated in the district court's memorandum opinion. As the district court noted, "The Constitution . . . 'does not mandate comfortable prisons,' and only those deprivations denying 'the minimal civilized measure of life's necessities' are sufficiently grave to form the basis of an Eighth Amendment violation." See Rec. vol. I, doc. 21, at 3 (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991) and Rhodes v. Chapman, 452 U.S. 337, 349, 347 (1981)).

The mandate shall issue forthwith.

Entered for the Court,

Robert H. Henry

Circuit Judge