                                                                          FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                     UNITED STATES COURT OF APPEALS                 January 20, 2011
                                                                   Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                      Clerk of Court




    MARCO A. ROCHA,

                Plaintiff-Appellant,

    v.                                                   No. 10-1158
                                            (D.C. No. 1:09-CV-01432-CMA-MEH)
    CCCF ADMINISTRATION;                                  (D. Colo.)
    CCCF WARDEN D. SMELSER;
    CCCF PERSONNEL R. GARCIA;
    C. ANDERSON; B. BONNER;
    J. MORA; J. SANCHEZ,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before TACHA, ANDERSON, and KELLY, Circuit Judges.


         In this pro se civil rights appeal, Marco A. Rocha, a Colorado inmate,

contends the district court erroneously dismissed his conspiracy and Eighth

Amendment claims. He also contends the court failed to compel discovery,



*
       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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
prematurely ruled on his motion to amend the judgment, and improperly entered

dismissal with prejudice. For the reasons that follow, we reject Mr. Rocha’s

contentions and affirm the judgment of the district court.

                                          I

      This case was triggered by an incident that occurred when Mr. Rocha was

transferred to the Crowley County Correctional Facility (CCCF). As he arrived at

the prison, Mr. Rocha was instructed to sign a property inventory form that he

believed was inaccurate. He thought the form commingled his assets with

property that was the subject of a state replevin action he was then prosecuting,

and thus he refused to sign the form. His refusal prompted defendants Garcia,

Anderson, Mora, and Sanchez to confine Mr. Rocha in the “unbearabl[y] cold”

segregation unit. R. Vol. 1 at 16. Apparently the air conditioning had been

turned up to create an “extremely cold environment,” but Mr. Rocha was given

only a prison jumpsuit to wear. Id. Sanchez told Mr. Rocha he could come out of

segregation if he signed the inventory form, but Mr. Rocha insisted the form was

inaccurate, and he therefore refused to sign it. Consequently, he remained in

those conditions for more than thirty hours, until he reported to medical staff an

“[acute] nervous disorder” and “sharp back pain” resulting from the cold. Id. At

that point, he was given bed linens and two blankets.

      Following this incident, Mr. Rocha filed a complaint in state court, alleging

defendants had conspired to force him to abandon his replevin action. He also

                                         -2-
alleged, among other federal constitutional claims, that defendants had exposed

him to a potential risk of serious harm in violation of the Eighth Amendment. 1

Defendants removed the case to federal court and moved to dismiss for failure to

state a claim under Federal Rule of Civil Procedure 12(b)(6). A magistrate judge

recommended that the motion to dismiss be granted, and over Mr. Rocha’s

objections, the district court adopted that recommendation. Later, the court

issued an amended order to comport with CCCF’s status as a privately run

facility, and afterwards, Mr. Rocha appealed to this court.

      As we distill his appellate materials, Mr. Rocha challenges the district

court’s decision on five grounds. He first contends it was error to dismiss his

conspiracy claim because the magistrate judge recognized that his allegations

could show a predicate agreement among the defendants. Next, Mr. Rocha

maintains that the “inhumane and sadistic” conditions of his confinement violated

the Eighth Amendment. Aplt. Br. at 3. Third, Mr. Rocha claims the district court

failed to compel defendants to produce discoverable evidence. Fourth, he argues

that the court prematurely ruled on his motion to amend the judgment without

considering his reply brief. And lastly, Mr. Rocha says it was error to dismiss his

claims with prejudice because it barred him from amending his complaint.


1
       Mr. Rocha also alleged First Amendment, equal protection, and due process
violations, but these claims are not the subject of this appeal. See Bronson v.
Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (explaining that issues omitted
from an appellant’s opening brief are deemed forfeited).

                                        -3-
                                            II

      We review dismissals for failure to state a claim under Rule 12(b)(6)

de novo. Gee v. Pacheco, ___ F.3d ___, 2010 WL 4909644, at *2 (10th Cir. Oct.

26, 2010). “To survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Gallagher v.

Shelton, 587 F.3d 1063, 1068 (10th Cir. 2009) (quotation omitted). Conclusory

allegations will not survive a motion to dismiss. Id. Nevertheless, we are

mindful that Mr. Rocha’s pro se status obliges us to afford his materials a

“solicitous construction.” See Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1

(10th Cir. 2007).

      A. Conspiracy

      We begin with the dismissal of Mr. Rocha’s conspiracy claim, which the

district court determined was deficient under state law. 2 As best we can discern

from Mr. Rocha’s opening brief, he contends the district court failed to credit the

2
       The magistrate judge determined the conspiracy allegations were also
deficient under 42 U.S.C. § 1985. Finding that Mr. Rocha did not object to this
determination, the district court reviewed the ruling only for clear error and found
none. We do not consider the issue. See Morales-Fernandez v. I.N.S., 418 F.3d
1116, 1119 (10th Cir. 2005) (explaining firm waiver rule).

                                           -4-
magistrate judge’s finding that the allegations could show a meeting of the minds

between defendants. See Nelson v. Elway, 908 P.2d 102, 106 (Colo. 1995) (“To

establish a civil conspiracy in Colorado, a plaintiff must show: (1) two or more

persons; (2) an object to be accomplished; (3) a meeting of the minds on the

object or course of action; (4) an unlawful overt act; and (5) damages as to the

proximate result.”). Notwithstanding the magistrate judge’s observation,

however, both the magistrate judge and district court explained that Mr. Rocha

also had to show the supposed agreement entailed an unlawful act or means. See

id. (“[T]he purpose of the conspiracy must involve an unlawful act or unlawful

means.”). Because Mr. Rocha failed to make that showing, dismissal was proper.

To the extent Mr. Rocha asserts other errors regarding this claim, we affirm for

substantially the same reasons provided by the district court in its amended order

dated April 2, 2010.

      B. Eighth Amendment

      Mr. Rocha next contends the district court wrongly dismissed his Eighth

Amendment claim, which was based on the cold conditions of his confinement.

“The Eighth Amendment does not mandate comfortable prisons, and conditions

imposed may be restrictive and even harsh.” Barney v. Pulsipher, 143 F.3d 1299,

1311 (10th Cir. 1998) (quotations omitted). To plead a valid conditions-of-

confinement claim, Mr. Rocha was required to make two showings. First, he was

required to make an objective showing that the deprivation was “sufficiently

                                         -5-
serious,” that is, that he was “incarcerated under conditions posing a substantial

risk of serious harm.” See Farmer v. Brennan, 511 U.S. 825, 834 (1994)

(quotations omitted). Second, he was required to make a subjective showing that

defendants had a “sufficiently culpable state of mind,” which in this context “is

one of deliberate indifference.” Id. (quotations omitted). In assessing

Mr. Rocha’s claim, we evaluate such factors as “the severity of the cold, its

duration; whether [he had] alternative means to protect himself from the cold;

[and] the adequacy of such alternatives.” See Dixon v. Godinez, 114 F.3d 640,

644 (7th Cir. 1997); see also DeSpain v. Uphoff, 264 F.3d 965, 974 (10th Cir.

2001) (noting the “circumstances, nature, and duration of the challenged

conditions must be carefully considered” (quotations omitted)).

      Here, Mr. Rocha alleged that in August 2008, the prison air conditioning

had been turned up, exposing him to “unbearable cold” and an “extremely cold

environment.” R. Vol. 1 at 16. He claimed he was subjected to these conditions

for more than thirty hours with only a jumpsuit to wear, until staff gave him bed

linens and two blankets. He also alleged other inmates complained of the cold.

These allegations are deficient because there is no objective indication that the

cold was so severe as to pose a substantial risk of serious harm. Instead,

Mr. Rocha has provided only conclusory allegations and subjective impressions of

the cold, which tells us nothing about its actual severity. Cf. Erickson v. Pardus,

551 U.S. 89, 94 (2007) (concluding that allegations of denied medical treatment

                                         -6-
for life threatening disease satisfied Fed. R. Civ. P. 8(a)(2)). Moreover, without

knowing the severity of the cold, we cannot evaluate whether the duration of

Mr. Rocha’s exposure—more than thirty hours—was sufficiently serious to

implicate constitutional protections. Cf. Mitchell v. Maynard, 80 F.3d 1433, 1442

(10th Cir. 1996) (finding viable claim where deprivations “lasted for a period of

days, weeks and months”). Under these circumstances, Mr. Rocha has failed to

plead enough factual matter to state a plausible claim to relief. 3 See Iqbal,

129 S. Ct. at 1949.

      C. Motion to Compel

      Mr. Rocha also contends the district court erred in failing to compel

defendants to produce discoverable evidence, apparently a list of other inmates

who entered segregation in August of 2008. This argument is meritless, however,

because where, as here, a defendant moves for dismissal under Rule 12(b)(6), the

district court “test[s] the sufficiency of the allegations within the four corners of

the complaint after taking those allegations as true.” Issa v. Comp USA, 354 F.3d

1174, 1178 (10th Cir. 2003) (quotation omitted). At this stage of the proceedings,




3
       Mr. Rocha asserts the district court showed bias in favor of defendants by
applying White v. Whetsel, 17 F. App’x 839, 841 (10th Cir. 2001). In Whetsel,
this court affirmed in an unpublished decision the dismissal of a claim alleging
that prison air conditioning was too cold and caused inmates to develop head
colds. Id. at 840-41. Given the similar factual allegations, we perceive neither
bias nor error in the district court’s reference to Whetsel.

                                          -7-
the district court was under no obligation to compel discovery and consider

potential evidence. 4

      D. Amended Judgment

      Next, Mr. Rocha claims it was error for the district court to rule on his

motion to amend the judgment without considering his reply brief. He contends

doing so enabled defendants to “abscond[]” without disclosing the identities of

other inmates confined under allegedly similar conditions. Aplt. Br. at 6. As

defendants correctly observe, however, the district court’s local rules authorize

the court to rule on a motion “any time after it is filed.” See D.C. COLO. L Civ.

R 7.1(c). There was no error.

      E. Nature of Dismissal

      Finally, Mr. Rocha claims the nature of the district court’s dismissal—with

prejudice—was inappropriate. He seems to suggest the court should have


4
       In his “fifth issue” for review, Mr. Rocha contends that discoverable
evidence precluded the court’s dismissal. This contention confuses the legal
standard applicable to Rule 12(b)(6) motions with the standard applicable to
summary judgment motions. The correct standard applicable to Rule 12(b)(6)
motions, again, is whether the complaint alone contains sufficient factual
allegations to state a plausible claim for relief, not, as Mr. Rocha contends,
whether there are genuine issues of material fact. If he means to suggest the
district court should have converted the motion to dismiss to a motion for
summary judgment, his argument fails because the court considered nothing
outside the pleadings and thus was not obligated to convert the motion to one for
summary judgment. See David v. City & Cnty. of Denver, 101 F.3d 1344, 1352
(10th Cir. 1996) (explaining that a Rule 12(b)(6) motion should be converted to
summary judgment motion when the court considers matters outside the
pleadings).

                                        -8-
afforded him an opportunity to amend the complaint if it found the allegations

deficient. Under our precedent, “[a] dismissal with prejudice is appropriate where

a complaint fails to state a claim under Rule 12(b)(6) and granting leave to amend

would be futile.” Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219

(10th Cir. 2006). As we have explained, “dismissal of a pro se complaint for

failure to state a claim is proper only where it is obvious that the plaintiff could

not prevail on the facts alleged and it would be futile to give him an opportunity

to amend.” Gee, ___ F.3d ___, 2010 WL 4909644, at *14 (quotation omitted).

      Here, Mr. Rocha did not allege sufficient facts to state a facially plausible

claim to relief. Nor did he attempt to cure his deficient allegations by amending

his complaint, despite repeated alerts by the district court and magistrate judge

that he could amend once as a matter of course. And, nothing in the facts he did

allege suggests he would have satisfied our standards, even if he had amended his

complaint. Thus, the district court properly dismissed this action with prejudice.

                                          III

      The judgment of the district court is AFFIRMED. Mr. Rocha’s motion to

proceed on appeal in forma pauperis is GRANTED, and he is reminded to

continue making partial payments until his entire filing fee is paid in full.

                                                      Entered for the Court


                                                      Stephen H. Anderson
                                                      Circuit Judge

                                          -9-
