Edwards v. Johnson, (10th Cir. 2002)

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UNITED

STATES COURT OF APPEALS

TENTH CIRCUIT

CHARLES L. EDWARDS,

Plaintiff - Appellant,

v.

GARY JOHNSON, Governor, State of

New Mexico; ROBERT J. PERRY,

Secretary of Corrections; STATE OF

NEW MEXICO; NEW MEXICO

DEPARTMENT OF CORRECTIONS,

Defendants - Appellees.

No. 01-2235

(D.C. No. CIV-01-422-MV)

(D. New Mexico)

ORDER AND JUDGMENT
href="#N_*_" name="txt*">(*)

Before EBEL,
name="9">KELLY, and LUCERO, Circuit

Judges.

Plaintiff-Appellant Charlie Louis Edwards, a New Mexico state inmate,

brought this suit under 42 U.S.C. § 1983. His primary allegation is that his

incarceration in a privately run correctional facility violates state law. The

district court dismissed the complaint sua sponte, and we affirm.

Edwards, who has at all times in this litigation proceeded pro se and in

forma pauperis, alleges that various state officials violated N.M. Stat. Ann.

§ 31-20-2 by housing state prisoners in privately run county correctional

facilities. According to the complaint, § 31-20-2 creates a liberty interest subject

to due process protection under the Fourteenth Amendment. Edwards further

alleges that the State retaliated against his litigation "by taking all the law

libraries in the State." (R. Doc. 1 Attach. at 3.) Specifically, he claims:

The State no longer provides case law forms or typewriters for the

petitioners to research and prepare his responses. The State has not

provided anyone to advise petitioners, such as a lawyer or paralegal.

[The correctional facility], by order of the State, is now censoring all

mail, which is a violation of the first amendment of the Constitution

of the United States.

(Id.) The district court dismissed all of Edwards's claims sua sponte pursuant to

28 U.S.C. 1915(e)(2) and Fed. R. Civ. P. 12(b)(6). On appeal, Edwards does

not take issue with the district court's dismissal of his retaliation claim.

Regarding the remainder of the complaint, Edwards argues that dismissal without

allowing him to amend was in error.

We review the district court's dismissal under the standards stated in

Curley v. Perry, 246 F.3d 1278 (10th Cir.), cert. denied, 122 S. Ct. 274 (2001):

We review de novo the district court's decision to dismiss a

complaint under § 1915(e)(2) for failure to state a claim. We must

accept the allegations of the complaint as true and view them in the

light most favorable to the plaintiff. We further construe a pro se

complaint liberally. Dismissal of a pro se complaint for failure to

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

cannot prevail on the facts he has alleged and it would be futile to

give him an opportunity to amend. Similarly, dismissal under Rule

12(b)(6) without affording the plaintiff notice or an opportunity to

amend is proper only when 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.

Id. at 1281­82 (quotations and citations omitted).

Title 42 U.S.C. § 1983 provides a remedy for deprivations of

federal

constitutional or statutory rights. Incarceration in a privately run county

correctional facility does not ipso facto violate federal constitutional or statutory

law. See Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000) ("Moreover,

there is no federal constitutional right to incarceration in any particular prison or

portion of a prison."). Edwards does allege, however, that a state statute, N.M.

Stat. Ann. § 31-20-2, creates a liberty interest that has been taken in violation of

the Due Process Clause of the Fourteenth Amendment. The Supreme Court has

recognized that "States may under certain circumstances create liberty interests

which are protected by the Due Process Clause." Sandin v. Conner, 515 U.S.

472, 483 (1995).

But these interests will be generally limited to freedom from restraint

which, while not exceeding the sentence in such an unexpected

manner as to give rise to protection by the Due Process Clause of its

own force, nonetheless imposes atypical and significant hardship on

the inmate in relation to the ordinary incidents of prison life.

Id. at 484 (citations omitted). Edwards' incarceration in a privately run county

correctional facility is not an "atypical and significant hardship" on him and thus

does not rise to the level of a federal due process violation.

We therefore conclude that the district court did not err in dismissing

Edwards' complaint. We also conclude that affording Edwards an opportunity to

amend his complaint would have been futile.

The judgment is AFFIRMED.
name="txt1a">(1) The mandate shall issue forthwith.

ENTERED FOR THE COURT

Carlos F. Lucero

Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. The case is unanimously ordered submitted

without oral argument

pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and

judgment is not binding precedent, except under the doctrines of law of the case,

res judicata, and 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.

1. Appellant is reminded of his obligation to

continue making partial

payments until the entire filing fee has been paid.

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