                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            JAN 31 2002
                                    TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk

 MICHAEL SANCHEZ,
          Plaintiff - Counter-Defendant -               No. 01-2239
          Appellant,
 v.                                           (D.C. No. CIV-00-1747-M/LFG)
 BEATRICE SANCHEZ; MARK                              (D. New Mexico)
 GARCIA; LUANNA GARCIA; ROSS
 CHAVEZ, doing business as Hog
 Heaven; CLIFF MCINTYRE;
 SAMUEL BEHAR; YVETTE
 GARDUNO-RODARTE; and RAY
 DURAN,
          Defendants - Appellees,

 TOM GORDON,

          Defendant - Counter-Claimant -
          Appellee.


                            ORDER AND JUDGMENT *


Before SEYMOUR and McKAY, Circuit Judges, and BRORBY, Senior Circuit
Judge.



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


      *
       This order and judgment is not binding precedent, except under the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.
determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

The case is therefore ordered submitted without oral argument.

      Mr. Sanchez filed state law tort claims against Defendants in federal

district court asserting diversity jurisdiction. When Mr. Sanchez filed his

complaint, all Defendants were residents of New Mexico. Mr. Sanchez was a

resident of New Mexico prior to his incarceration. Mr. Sanchez is currently

incarcerated at La Tuna Federal Prison which is located partially in New Mexico

and partially in Texas. Because of this, Mr. Sanchez claimed that he was a citizen

of Texas when he filed his complaint. The district court concluded that Mr.

Sanchez was a citizen of New Mexico because he resided in New Mexico prior to

his incarceration and dismissed Mr. Sanchez’s action without prejudice for lack of

subject matter jurisdiction.

      We agree with the district court that Mr. Sanchez is a citizen of New

Mexico. His current incarceration at La Tuna and his assertion that he intends to

stay in Texas after his incarceration are not enough to change Mr. Sanchez’s legal

residency. Additionally, we cannot find error in the district court’s denial of Mr.

Sanchez’s Motion to Reconsider and Amend Judgment and Motion for Leave to

File Amendment.

      After a thorough review of the briefs and the record, and for substantially


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the same reasons set forth in the district court’s well-reasoned June 29, 2001

Order, we hold that no relief is available to Mr. Sanchez.

      Appellant’s complaint is DISMISSED.

                                               Entered for the Court:



                                               Monroe G. McKay
                                               Circuit Judge




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