                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                           NOV 4 1998
                           FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    MICHAEL J. FRISCHENMEYER,

               Plaintiff-Appellant,

    v.                                                  No. 98-2109
                                                 (D.C. No. CIV-96-1076-LH)
    FORREST G. BUFFINGTON, in his                        (D. N.M.)
    official and individual capacity;
    JAMES A. JULIAN, Assistant
    Criminal District Attorney; FRANK
    GONZALES, McKinley County
    Sheriff; DANNY ROSS, Gallup Chief
    of Police; ROBERT ARAGON,
    Attorney at Law; JOE NICHOLS,
    Investigator for District Attorney;
    GARY L. JOHNSON, Director, Texas
    Department of Criminal Justice; S.O.
    WOODS, JR., Agreement Officer;
    JOHN DOE, FBI Agent; GREG DOE,
    FBI Agent; H. DEAN MCWILLIAMS;
    JOHN DOES, Unknown Gallup Police
    Officer and McKinley County Sheriff
    Deputies; JOHNNY GREEN; BILL
    SILVA and TIM HANNAH, Gallup
    City Jailors,

               Defendants-Appellees.




                           ORDER AND JUDGMENT            *




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
                                                                       (continued...)
Before PORFILIO, BARRETT,           and KELLY , 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.

       Plaintiff Michael J. Frischenmeyer, proceeding pro se, appeals from an

order of the district court dismissing his complaint. We affirm.

       Mr. Frischenmeyer brought this action pursuant to 42 U.S.C.    § 1983 . In his

complaint, he asserted several issues concerning his transfer from Texas to New

Mexico pursuant to the provisions of the Interstate Agreement on Detainers Act

(IADA). See 18 U.S.C. App. II; N.M. Stat. Ann. § 31-5-12. In addition to

various other claims, Mr. Frischenmeyer also alleged he was attacked in his jail

cell after the New Mexico charges were dropped and his petition for a writ of

habeas corpus, which was pending in     Texas, was dismissed due to his inability to

prosecute the case while he was detained in New Mexico.



*
 (...continued)
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.

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       The district court dismissed Mr. Frischenmeyer’s claims relating to the

IADA on the grounds that the Act does not apply to pretrial detainees. The court

also noted that the only possible remedy for violations of the IADA was dismissal

of the charges which had already occurred. The district court dismissed all of his

other claims except the physical brutality claims. The court ordered

Mr. Frischenmeyer to amend his complaint to name the          defendants responsible for

beating him. In his response, Mr. Frischenmeyer stated that he could not identify

the ten defendants who beat him without further investigation. The court then

dismissed the physical brutality claim holding that, as the     defendants had not been

identified, they could not be served. On appeal, Mr. Frischenmeyer asserts that

the district court erred in its rulings.

       The district court dismissed the complaint prior to service of process on any

of the defendants pursuant to both 28 U.S.C. § 1915(e)(2)(B)(i) and Fed. R. Civ.

Proc. 12(b)(6) . We review the § 1915(e) dismissals for abuse of discretion, see

Schlicher v. Thomas, 111 F.3d 777, 779 (10th Cir. 1997), and discern no such

abuse by the district court in dismissing those claims.

       When reviewing the sufficiency of a complaint dismissed under Rule

12(b)(6), we examine the complaint de novo. See Coosewoon v. Meridian Oil

Co., 25 F.3d 920, 924 (10th Cir. 1994). We will uphold the dismissal only if “it

appears that the plaintiff can prove no set of facts in support of the claims that


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would entitle him to relief.” Id. We accept all well-pleaded allegations as true

and construe them in the light most favorable to the plaintiff. See id.

      Mr. Frischenmeyer brought several claims alleging violations of the IADA.

Presuming these allegations are true, the only remedy Mr. Frischenmeyer could

obtain would be dismissal of the   New Mexico charges. See Nelson v. Carlson ,

904 F.2d 560, 561 (10th Cir. 1990). As those charges have been dismissed and

he can obtain no further relief, d ismissal of the IADA claims was proper.

      Mr. Frischenmeyer alleged he had been beaten in his cell. However, he did

not name the responsible parties in his complaint. His complaint appears to

charge defendants Gonzales and Ross as supervisors of those responsible for the

attack. “Individual liability under § 1983 must be based on personal involvement

in the alleged constitutional violation.” Foote v. Spiegel, 118 F.3d 1416, 1423

(10th Cir. 1997). While a plaintiff can sue unnamed defendants, the plaintiff

must provide a description sufficient to identify those involved so process can

eventually be served. See Roper v. Grayson, 81 F.3d 124, 126 (10th Cir. 1996).

Despite an order directing such by the district court, Mr. Frischenmeyer provided

no description.

      Mr. Frischenmeyer alleged that a habeas action he had pending in federal

court in Texas was dismissed for failure to prosecute because the New Mexico

authorities did not permit him access to legal materials. Mr. Frischenmeyer did


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not identify how any of the named      defendants denied him his right to access legal

materials necessary to prosecute his    Texas action.

      The judgment of the United States District Court for the District of New

Mexico is AFFIRMED.       This appeal is frivolous, malicious, or fails to state a

claim upon which relief can be granted for the purpose of counting "prior

occasions" under 28 U.S.C. 1915(g).         Mr. Frischenmeyer’s motion to submit

newly discovered evidence is DENIED.         See Reid v. Oklahoma, 101 F.3d 628,

630-31 (10th Cir. 1996) (On review of district court’s decision, “we may not

enlarge the evidentiary record to include material unavailable to the district

court.”) , cert. denied, 117 S. Ct. 1707 (1997). The mandate shall issue forthwith.



                                                        Entered for the Court



                                                        James E. Barrett
                                                        Senior Circuit Judge




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