                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                   UNITED STATES COURT OF APPEALS                    March 31, 2010
                                                                  Elisabeth A. Shumaker
                                TENTH CIRCUIT                         Clerk of Court


 FRANK M. MUNIZ,

              Plaintiff-Appellant,
 v.                                                     No. 09-2229
                                            (D.C. No.1:09-CV-00202-MCA-RLP)
 BILL RICHARDSON, Governor of the                       (D. of N.M.)
 State of New Mexico; JOE R.
 WILLIAMS, Secretary of The New
 Mexico Corrections Department; THE
 NEW MEXICO CORRECTIONS
 DEPARTMENT, et al.,

              Defendants-Appellees.


                           ORDER AND JUDGMENT *


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




      *
         This order and judgment is not binding precedent except under the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.
      Frank M. Muñiz, a New Mexico state prisoner proceeding in forma

pauperis and pro se, 1 appeals the dismissal of his civil rights complaint alleging

11 claims related to prison conditions.

      We exercise jurisdiction under 28 U.S.C. § 1291, and we AFFIRM the

district court’s rulings.

                                  I. Background

      Muñiz’s civil rights complaint alleges numerous unconstitutional conditions

in New Mexico state prisons, running the gamut from inadequate disciplinary and

grievance procedures to substandard food service. Muñiz groups his allegations

into 11 broad claims: (1) improper inmate classification, (2) violations of the

prison’s disciplinary policies, (3) deficient medical care, (4) denial of postage for

legal correspondence, (5) inadequate access to legal materials, (6) denial of

postage for international correspondence, (7) general concerns about living

conditions, (8) substandard food service, (9) insufficient recreational activities,

(10) inconsistently-applied grievance procedures, and (11) a discriminatory goods

purchasing service.

      The district court held that res judicata barred all but the food service

claim. The remaining claim was dismissed because it was not cognizable.

      1
         We construe Muñiz’s “pro se pleadings and other papers liberally, but we
do not assume the role of advocate, and his pro se status does not relieve him of
his obligation . . . to comply with the fundamental requirements of the Federal
Rules of Civil and Appellate Procedure.” Merryfield v. Jordan, 584 F.3d 923,
924 n.1 (10th Cir. 2009) (internal punctuation omitted).

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                                   II. Discussion

      We review the district court’s legal conclusion that res judicata bars all but

one of Muñiz’s claims de novo, viewing the facts in the light most favorable to

Muñiz. See Pelt v. Utah, 539 F.3d 1271, 1280 (10th Cir. 2008) (“[T]he question

of application of res judicata to the facts, viewed in the light most favorable to the

nonmoving party, is a pure question of law to be reviewed de novo.”) (internal

punctuation omitted). We also review de novo the district court’s dismissal of

Muñiz’s other claim under Federal Rules of Civil Procedure 12(b)(6). See Christy

Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1191 (10th Cir. 2009). In

reviewing the district court’s decision, “we can affirm on any ground adequately

supported by the record, so long as the parties have had a fair opportunity to

address that ground.” Thomas v. City of Blanchard, 548 F.3d 1317, 1327 n.2

(10th Cir. 2008) (internal punctuation omitted).

      A. Claims properly dismissed under res judicata

      The district court correctly dismissed several of Muñiz’s claims on res

judicata grounds. “Res judicata requires the satisfaction of four elements: (1) the

prior suit must have ended with a judgment on the merits; (2) the parties must be

identical or in privity; (3) the suit must be based on the same cause of action; and

(4) the plaintiff must have had a full and fair opportunity to litigate the claim in

the prior suit.” Nwosun v. Gen. Mills Rests., Inc., 124 F.3d 1255, 1257 (10th Cir.




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1997); but see Yapp v. Excel Corp., 186 F.3d 1222, 1226 n.4 (10th Cir. 1999)

(discussing whether the fourth prong is a “requirement” or an “exception”).

      Liberally construed, Muñiz disputes that his current claims are based on the

same causes of action as his prior claims. “[A] cause of action includes all claims

or legal theories of recovery that arise from the same transaction, event, or

occurrence. All claims arising out of the transaction must therefore be presented

in one suit or be barred from subsequent litigation.” Nwosun, 124 F.3d at 1257.

We have cautioned that “[d]etermining what constitutes a single cause of action

has long been a troublesome question.” Clark v. Haas Group, Inc., 953 F.2d

1235, 1238 (10th Cir. 1992). The Restatement of Judgments provides guidance:

“What factual grouping constitutes a ‘transaction’, and what groupings constitute

a ‘series’ [of transactions], are to be determined pragmatically, giving weight to

such considerations as to whether the facts are related in time, space, origin, or

motivation . . . .” R ESTATEMENT (S ECOND ) OF J UDGMENTS § 24 (1982).

      Muñiz’s claims relating to (1) improper inmate classification, (2) denial of

postage for legal correspondence, and (3) denial of postage for international

correspondence are part of the same series of transactions as his previous claims.

In Muñiz v. Moore, No. CIV 08-714 JB/ACT (D.N.M. July 30, 2009), Muñiz

alleged he was improperly classified based on false charges and fabricated

information, and in violation of the prison’s policies. The allegations in Muñiz v.

Moore are substantially identical to the improper inmate classification claim

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Muñiz brings now, and therefore res judicata bars this claim. Similarly, in Muñiz

v. Williams, No. CIV 08-1106 WJ/ACT (D.N.M. Aug. 11, 2009), Muñiz alleged

prison officials unconstitutionally denied him adequate postage for various

mailings. The allegations in Muñiz v. Williams are substantially identical to the

mail-related claims Muñiz brings now, and therefore res judicata bars these

claims as well.

      B. Other dismissed claims

      The remainder of Muñiz’s claims do not present grounds for relief and

therefore are dismissed. Federal courts must dismiss in forma pauperis

complaints if they “fail[] to state a claim on which relief may be granted . . . .”

28 U.S.C. § 1915(e)(2). Federal courts may dismiss complaints under Federal

Rules of Civil Procedure 12(b)(6) if “it is patently obvious that the plaintiff could

not prevail on the facts alleged, and allowing him an opportunity to amend his

complaint would be futile.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.

1991) (internal punctuation omitted).

             1. Eighth Amendment claims

      Muñiz attempts to state several Eighth Amendment claims. The Supreme

Court has held that “[n]o static ‘test’ can exist by which courts determine whether

conditions of confinement are cruel and unusual, for the Eighth Amendment must

draw its meaning from the evolving standards of decency that mark the progress

of a maturing society.” Rhodes v. Chapman, 452 U.S. 337, 346 (1981) (internal

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punctuation omitted). The Eighth Amendment’s prohibition encompasses

punishments that “involve the unnecessary and wanton infliction of pain or are

grossly disproportionate to the severity of the crime . . . .” Id. (internal

punctuation omitted). At the same time, “the Constitution does not mandate

comfortable prisons,” and penal “considerations properly are weighed by the

legislature and prison administration rather than a court.” Id. at 349.

      The district court properly dismissed Muñiz’s Eighth Amendment claim

relating to substandard food service for failure to state a legally cognizable claim.

For the same reason, we dismiss his claims relating to deficient medical care,

general concerns about living conditions, and insufficient recreational activities.

      In his substandard food service claim, Muñiz argues that New Mexico

prisons’ food is of such poor quality and so lacking nutrition that it violates the

Eighth Amendment. However, Muñiz’s specific allegations show—at most—that

prisoners do not enjoy the food that is served. This plainly does not rise to the

“serious deprivation of basic human needs” that offends the Eighth Amendment.

Id. at 347.

      Muñiz’s deficient medical care claim involves denials of referrals to

outside physicians and extended wait times for optometry and dental care. Again,

Muñiz’s specific allegations do not approach the “deliberate indifference to

serious medical needs” that constitutes an Eighth Amendment violation. Estelle

v. Gamble, 429 U.S. 97, 104 (1976).

                                           -6-
      Muñiz’s general concerns about living conditions center on excessive

heating and air conditioning, dirty mops, insufficiently sized showers, and

television programs played continuously in a loop. Even if the prison conditions

are as he describes them, they do not violate the Eighth Amendment. Muñiz

comes closest to stating a cognizable claim when he describes the repeated

television programs being used as a harassment tool. But even assuming prison

officials’ ill intent, Muñiz does not allege that he is required to sit near the

televisions as the programs are repeated. We find no plausible Eighth

Amendment violation arising from Muñiz’s living conditions claims.

      Finally, we dismiss Muñiz’s Eighth Amendment claim regarding

recreational activities. The gravamen of his complaint is that the prison’s

recreational facilities—which he acknowledges include a basketball hoop and

fitness equipment—are too small. It is unclear what, if any, constitutional

argument Muñiz makes on this count. Liberally construed as an Eighth

Amendment claim, it fails.

             2. Due process claims

      Muñiz attempts to state several due process claims. He claims that prison

officials violate their own disciplinary policies and are unfair to prisoners in

grievance hearings. He also claims the official in charge of the prison’s goods

purchasing service, the canteen, discriminates against him due to his filing of

grievances and legal actions. Prison officials must follow their own policies,

                                           -7-
Mitchell v. Maynard, 80 F.3d 1433, 1445 (10th Cir. 1996), and they may not

retaliate against prisoners for filing grievances or legal actions, Smith v.

Maschner, 899 F.2d 940, 947 (10th Cir. 1990). Muñiz makes only general, not

specific, allegations about the grievance hearings and the prison’s canteen.

“[C]onclusory allegations without supporting factual averments are insufficient to

state a claim on which relief can be based,” Hall, 935 F.2d at 1110, and therefore

those claims are dismissed.

      Muñiz makes an additional due process claim, which he states in more

detail. He claims that he has inadequate access to legal materials because the

prison staff is not legally trained and cannot provide federal or state case law. It

is well-settled that prisoners have a constitutional right to access the court system,

and that access must be “adequate, effective, and meaningful.” Bounds v. Smith,

430 U.S. 817, 822 (1977). Muñiz’s claim founders because he admits that he has

access to case law through a mail service. Indeed, his brief’s extensive case

citations belie a lack of legal access. Muñiz later vaguely asserts that his legal

correspondence is censored, but, much like his other due process claims, he does

not provide any specific details about that censorship.




                                          -8-
                                    III. Conclusion

      For the forgoing reasons, we AFFIRM the district court’s rulings. We

DENY Muñiz’s motion for leave to proceed without prepayment of costs and fees.

We remind Muñiz of his continuing obligation to make partial payments of his

filing fees until they are paid in full.


                                                      ENTERED FOR THE COURT


                                                      Timothy M. Tymkovich
                                                      Circuit Judge




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