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

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UNITED

STATES COURT OF APPEALS

TENTH CIRCUIT

EDDIE MARTINEZ,

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. 01-2194

(D.C. No. CIV-01-462-JP/WWD)

(D. N.M.)

ORDER AND JUDGMENT
name="txt*">(*)

Before EBEL,
name="9">KELLY, and
name="10">LUCERO, Circuit Judges.
name="txt2">(2)

Mr. Eddie Martinez, a state prisoner proceeding pro se and in forma

pauperis, appeals the district court's dismissal of his 28 U.S.C. § 1983 action.

We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

Mr. Martinez's § 1983 claim seeks damages and equitable relief, alleging,

first, that defendants violated certain state statutes and contract requirements by

housing state prisoners in privately-owned county correctional facilities. He

further alleges that the law libraries in these facilities have been closed and that

his mail is being censored, thereby depriving him of access to the courts. These

actions, Martinez claims, violated his rights under the First, Fifth, and Fourteenth

Amendments. The district court dismissed all claims under 28 U.S.C. 1915(e)(2)(B) and Fed. R. Civ. Pro. 12(b)(6).

Mr. Martinez has no constitutional right to placement in a particular penal

institution, private or public. Rael v. Williams, 223 F.3d 1153, 1154 (10th Cir.

2000); Prows v. Federal Bureau of Prisons, 981 F.2d 466, 468 n.3 (10th Cir.

1992). Further, Martinez's allegations that defendants violated state laws and

contract provisions do not include an allegation of a violation of a federally

protected right, and therefore, this portion of the complaint was rightfully

dismissed. Baker v. McCollan, 443 U.S. 137, 140 (1979).

Further, Martinez's failure to "establish relevant actual injury," Lewis v.

Casey, 518 U.S. 343, 351 (1996), or otherwise allege active interference with his

preparation and filing of legal documents, id. at 350, warrants dismissal of his

claim that defendants' failure to provide a library denied him access to the courts.

Martinez's claim that his mail is being censored also was rightly dismissed for

failing to show "relevant actual injury." Lewis, 518 U.S. at 351.

Finally, Martinez's allegations of retaliation are insufficient. He alleges no

"specific facts showing retaliation because of the exercise of [his] constitutional

rights," Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998) (quotation

omitted).

For substantially those reasons set forth in the district court's order dated

May 22, 2001, I R. Doc. 6, we AFFIRM the judgment of the district court.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge

FOOTNOTES

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*. This order and judgment is not binding

precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. This 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.

2. 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.

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