                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                           MAR 6 2003
                                TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 MARCOS LUCERO,

              Plaintiff - Appellant,

 v.

 TIM LEMASTER, Warden,                                  No. 02-2179
 Penitentiary of New Mexico; TOM               (D.C. No. CIV-02-430 BB/LFG)
 HAMMERTREE, Case Manager,                            (D. New Mexico)
 Penitentiary of New Mexico; JAMES
 LOPEZ, Unit Manager, Penitentiary
 of New Mexico; and NEW MEXICO
 DEPARTMENT OF CORRECTIONS,

              Defendants - Appellees.


                           ORDER AND JUDGMENT


Before EBEL , HENRY , and HARTZ , Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore

submitted without oral argument. This order and judgment is not binding

precedent, except under the doctrines of law of the case, res judicata, or collateral

estoppel. The court 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.

      Plaintiff Marcos Lucero, a New Mexico state inmate appearing pro se,

brought this 42 U.S.C. § 1983 civil rights action against prison officials Tim

LeMaster, Tom Hammertree, and James Lopez, and against the New Mexico

Department of Corrections. The district court considered Plaintiff’s complaint

sua sponte under 28 U.S.C. § 1915(e)(2) and Fed. R. Civ. P. 12(b)(6), and

dismissed all claims. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

      Plaintiff’s complaint alleges that the prison officials denied his requests for

furloughs to visit his gravely ill mother before she died and to attend her funeral.

He claims that these denials violated (1) his Eighth Amendment right to be free

from cruel and unusual punishment, (2) his right to equal protection under the

Fourteenth Amendment, and (3) his right to due process under the Fourteenth

Amendment. As explained in the district court’s Memorandum Opinion and

Order, however, the allegations in his complaint do not support these claims.

Although a pro se litigant's pleadings are to be construed liberally, Whitney v.

New Mexico, 113 F.3d 1170, 1172 (10th Cir.1997), this court "will not supply

additional factual allegations . . . or construct a legal theory on [the litigant's]

behalf." Id. at 1173-74.




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       Plaintiff also asserts that the district court (1) abused its discretion by

refusing to appoint him counsel and (2) improperly denied him an evidentiary

hearing. The magistrate rejected Plaintiff’s request for appointment of counsel,

concluding that Plaintiff was able to represent himself in an intelligent and

capable manner. See Lucero v. LeMaster, Civ. No. 02-430 (magistrate’s order,

May 14, 2002) (citing Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995)).

Plaintiff has provided nothing here to indicate otherwise.

       Plaintiff’s claim that he was improperly denied an evidentiary hearing is

similarly without merit. By its very nature, Fed. R. Civ. P. 12(b)(6) contemplates

a dismissal on the pleadings. See also 28 U.S.C. § 1915(e)(2) (in considering a

prisoner’s in forma pauperis action, “the court shall dismiss the case at any time

if the court determines that . . . the action . . . fails to state a claim upon which

relief can be granted”). Thus, if a plaintiff fails to allege sufficient facts to state

a claim upon which relief can be granted, he has no right to present his claims at

an evidentiary hearing.




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      We have carefully reviewed Plaintiff’s brief, the district court’s order, the

magistrate’s order, and the record on appeal. For the reasons stated above, and

for substantially the same reasons set forth in the district court’s June 11, 2002,

order, and the magistrate’s May 14, 2002, order, we AFFIRM the judgment of the

district court. Plaintiff’s motion for leave to proceed without prepayment of fees

is granted. Plaintiff is reminded that he is obligated to continue making payments

on this appeal until the filing fee is paid in full.



                                         ENTERED FOR THE COURT


                                         Harris L Hartz
                                         Circuit Judge




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