FILED
                                                                        United States Court of Appeals
                       UNITED STATES COURT OF APPEALS                           Tenth Circuit

                                    TENTH CIRCUIT                             March 23, 2011

                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
    ERNEST J. GUTIERREZ,

        Plaintiff - Appellant,

v.                                                          No. 10-2183
                                                 (D.C. No. 1:09-CV-00664-BB-RLP)
RON TORRES, Director of Bernalillo                            (D. N.M.)
County Metropolitan Detention Center;
MAIL ROOM,

        Defendants - Appellees.




                                 ORDER AND JUDGMENT*


Before BRISCOE, Chief Circuit Judge, TACHA, and O'BRIEN, Circuit Judges.




*
 Oral argument would not materially assist the determination of this appeal. See Fed. R.
App. P. 34(a)(2); 10th Cir. R. 34.1(G). We have decided this case on the briefs.

        This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). 

brings a pro se1 appeal from the district court’s order dismissing

his 42 U.S.C. § 1983 action with prejudice. He argues the district court erred in

concluding he did not state a claim for which relief could be granted or, in the alternative,

abused its discretion in denying him permission to amend his complaint. We affirm.28

U.S.C. § 1915

       In an action in which the plaintiff is permitted to proceed in forma pauperis (ifp):

       [n]otwithstanding any filing fee, or any portion thereof, that may have been
       paid, the court shall dismiss the case at any time if the court determines
       that--

              (A) the allegation of poverty is untrue; or

              (B) the action or appeal--

                     (i) is frivolous or malicious;

                     (ii) fails to state a claim on which relief may be granted; or

       (iii) seeks monetary relief against a defendant who is immune from such
       relief.

28 U.S.C. § 1915(e)(2). The district court dismissed Gutierrez’s complaint for failure to

state a claim on which relief could be granted.

                                   I.      BACKGROUND

       Gutierrez filed a § 1983 action alleging his constitutional due process rights were

violated when personnel at the Bernalillo County Metropolitan Detention Center (MDC)

interfered with his mail. He alleged the staff lost or kept from him important legal

documents he required for his defense to probation violation charges in an unrelated

1
 We construe pro se pleadings liberally. See Ledbetter v. City of Topeka Kan., 

, 1187 (10th Cir. 2003).


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criminal case.2 The district court referred the case to a magistrate judge for a report and

recommendation (R&R). See 28 U.S.C. § 636(b)(1)(B). The magistrate granted

Gutierrez leave to proceed ifp and waived the initial payment under 28 U.S.C. §

1915(b)(1). The complaint was conclusory, wholly bereft of necessary detail; on its face

it could not withstand the sua sponte review required by 28 U.S.C. § 1915(e)(2). In spite

of those deficiencies, the magistrate ordered defendants (the director and mail room staff

of MDC) to file a Martinez3 report in response to the allegations.

          Defendants filed a lengthy report attaching, inter alia, MDC’s grievance and mail

policies, as well as Gutierrez’s grievance history. It also set forth the facts relating to the

criminal proceedings in which Gutierrez was involved during his incarceration and

attached related court documents.4 Based on his review of the Martinez report and the


2
    Gutierrez was represented by counsel in his probation violation case through appeal.
3
  In a pro se prisoner proceeding, the court may order prison officials to submit a special
report on the matter so it has an adequate record on which to conduct a review under 28
U.S.C. § 1915. See Martinez v. Aaron, 

, 319 (10th Cir. 1978).
4
  “In determining whether a plaintiff has stated a claim, the district court may not look to
the Martinez report, or any other pleading outside the complaint itself, to refute facts
specifically pled by a plaintiff, or to resolve factual disputes.” Swoboda v. Dubach, 

, 290 (10th Cir. 1993). Here the complaint contains only general statements that
mail and legal documents were mishandled and Gutierrez’s legal defense suffered as a
result. The magistrate looked to the Martinez report, particularly the grievance history, to
understand the deficient pleading. The R&R references materials in the Martinez report
in the context of parsing out identifiable claims. Although the magistrate spoke in terms
of exhaustion in reviewing the grievances, it is clear he used them to try to understand
Gutierrez’s generic statements in his complaint and ultimately determined the allegations
were insufficient to state any claim for relief. This is appropriate use of a Martinez
report. See Hall v. Bellmon, 

, 1112 (10th Cir. 1991) (“The purpose of the
Martinez report is to identify and clarify the issues plaintiff raises in his complaint.”) The
magistrate did not improperly use the Martinez report to refute any facts specifically pled

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response, the magistrate was able to construe the complaint as raising two issues: 1) the

opening of Gutierrez’s legal mail and 2) the return to senders of mail addressed to him at

the facility. The magistrate analyzed each of those claims and concluded Gutierrez had

not alleged facts sufficient to support a constitutional violation on either one. With

respect to the first issue, Gutierrez failed to allege facts showing the improper opening of

his mail prejudiced his legal defense. As to the second, he failed to allege the mail was

returned in violation of prison regulations5 or the regulations themselves were

unconstitutional. The magistrate recommended the case be dismissed with prejudice.

       Gutierrez objected to the R&R and moved to amend his complaint. The district

court, after a de novo review, denied the motion to amend as futile because nothing

alleged in the motion would have cured the deficiencies identified in the R&R.6 The

court adopted the R&R, dismissing the case with prejudice. Gutierrez appealed and filed

a motion to proceed ifp on appeal with this Court.7



by the plaintiff because Gutierrez did not plead specific facts. Our review under §
1915(e)(2)(B)(ii) is appropriate.
5
  The only pieces of mail the magistrate specifically identified were money orders
referenced in some of the grievances. However, Gutierrez fails to identify even the
money order about which he filed a grievance in his complaint and does not allege the
returned money order or any other piece of mail complied with prison mail regulations.
6
 The magistrate identified specific deficiencies in Gutierrez’s allegations of fact. The
objections did not address any of those deficiencies but instead only provided a list of
witnesses, identifying the subject matter of their testimony with such unhelpful
designations as “person that witnessed damaged mail and that was aware of plaintiff’s
complaints.” An amended complaint containing the additional information Gutierrez
provided would not pass muster.
       7
           A motion to proceed ifp on appeal, supported by required documents,

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                                     II.   DISCUSSION

       “We apply the same standard of review for dismissals under § 1915(e)(2)(B)(ii)

that we employ for Federal Rule of Civil Procedure 12(b)(6) motions to dismiss for

failure to state a claim.” Kay v. Bemis, 

, 1217 (10th Cir. 2007). We review

a dismissal under 12(b)(6) de novo. See Bixler v. Foster, 

, 756 (10th Cir.

2010). We also review de novo a district court’s denial of a motion to amend when the

district court has determined amendment would be futile. Watson v. Beckel, 

, 1239 (10th Cir. 2001).

       To survive a motion to dismiss, a complaint must contain sufficient factual
       matter, accepted as true, to ‘state a claim for relief that is plausible on its
       face. We assume the factual allegations are true and ask whether it is
       plausible that the plaintiff is entitled to relief. The tenet that a court must
       accept as true all of the allegations contained in a complaint is inapplicable
       to legal conclusions. Threadbare recitals of the elements of a cause of
       action, supported by mere conclusory statements, do not suffice.

(citation and quotations omitted). “A proposed amendment is

futile if the complaint, as amended, would be subject to dismissal for any reason . . . .”

.

       Gutierrez lists three issues on appeal: 1) his incoming mail was being opened and


       must be made in the first instance to the district court. Fed. R. App. P.
       24(a)(1). Only if that motion is denied is there occasion to file an ifp
       motion with this court. The filing must be made within 30 days after notice
       of a district court’s denial. See Fed. R. App. P. 24(a)(5). Our consideration
       of an appropriate and timely motion is not a review of the district court’s
       denial, but an original consideration.

Boling-Bey v. U.S. Parole Comm’n, 

, 1154 (10th Cir. 2009). Although
Gutierrez failed to request to proceed ifp on appeal in the district court, in the interest of
expeditious processing of appeals, we will nevertheless consider his ifp motion.


                                             -5-
resealed in different envelopes and his outgoing mail sent to the wrong place; 2) he was

denied access to the courts because his legal documents were misplaced or destroyed and

3) the Martinez report contained perjured statements.8 However, his brief, like his

pleadings, is sparse and conclusory. It contains nary a legal citation and does not address

the deficiencies in his complaint, which were identified for him by the district court.

Gutierrez was required to include in his brief “the argument, which must contain: . . .

appellant’s contentions and the reasons for them, with citations to the authorities and

parts of the record on which the appellant relies.” Fed. R. App. P. 28(a)(9)(A). While we

construe pro se pleadings liberally, we “will not supply additional factual allegations to

round out a plaintiff’s complaint or construct a legal theory on a plaintiff’s behalf.”

Whitney v. New Mexico, 

, 1173-74 (10th Cir. 1997). Gutierrez’s briefs and

other submissions provide no basis on which we could overturn the reasoned and careful

decision of the district court.

       We have reviewed the record and it is clear that the magistrate judge and the

district court treated Gutierrez’s claims with great care. Although the complaint

contained only general allegations and included no citation to law, the magistrate judge

8
  Gutierrez filed a “Motion Responding to Defendants Supplement,” which is captioned
for the district court and contains additional but still insufficient factual allegations as
well as attachments related to his previous state court convictions. We construe it as a
reply brief and his subsequently filed “Petition for Subpo[e]na” we construe as a motion
to supplement the reply brief and deny. In the motion to supplement the reply brief,
Gutierrez asks this Court to subpoena documents from the National Inmate Advocacy
Program and attaches a report from that entity analyzing some of his claims for relief
from his state court conviction. The contents of the motion and the attached documents
are irrelevant to this appeal. In any event our role is to review matters on the record, not
take evidence.


                                            -6-
ordered a Martinez report to assist in understanding Gutierrez’s claims. The Martinez

report, which addresses every concern raised by the magistrate, is nearly 200 pages.

Gutierrez responded to the report. The magistrate identified potential claims despite the

abysmal pleading, set forth the appropriate law for each possible claim, and determined

Gutierrez had not alleged sufficient facts to state a claim for relief. Even a cursory

review of the complaint shows it was deficient in all respects. Despite the fact that

Gutierrez’s objections to the R&R did not address the deficiencies in the complaint, the

district court nevertheless conducted a de novo review of the record before disposing of

his claims. Gutierrez provides no argument on appeal to disturb the district court’s order.

       We DISMISS the appeal as frivolous and thereby impose a strike for the purposes

of 28 U.S.C. § 1915(g) against Gutierrez for filing it. See Jennings v. Natrona Cnty. Det.

Ctr. Med. Facility, 

, 780 (10th Cir. 1999) (“If we dismiss as frivolous the

appeal of an action the district court dismissed under 28 U.S.C. § 1915(e)(2)(B), both

dismissals count as strikes”). We deny the request to proceed ifp and order him to pay

the filing and docketing fees associated with the appeal. We also construe his Motion

Responding to Defendants Supplement as a reply brief and deny his Petition for

Subpoena.



                                           Entered by the Court:

                                           Terrence L. O’Brien
                                           United States Circuit Judge




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