117 F.3d 1428
97 CJ C.A.R. 1280
NOTICE:  Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties.  See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Steve DUNCAN, Plaintiff-Appellant,v.Karl SANNICKS, Secretary of Corrections;  John Shanks,Warden, Penitentiary of New Mexico;  Donald Hoover,Classification Bureau Chief/Interstate Compact;  ManuelRomero, Director of Adult Prisons;  Gary Meir, Warden, SouthUnit;  Gilbert Garcia, Program Director, in their individualand official capacities, Defendants-Appellees.
No. 97-2092.(D.C.No. CIV-96-1182)
United States Court of Appeals, Tenth Circuit.
July 18, 1997.

Before SEYMOUR, Chief Judge, PORFILIO, Circuit Judge, and MURPHY, Circuit Judge.


1
ORDER AND JUDGMENT*


2
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal.  See Fed.  R.App. P. 34(a);  10th Cir.  R. 34.1.9.  The case is therefore ordered submitted without oral argument.


3
Steve Duncan appeals the order of the district court dismissing his civil rights complaint under Fed.R.Civ.P. 12(b)(6) for failure to state a claim and under 28 U.S.C. § 1915(e)(2) on the ground of frivolousness.  We agree the complaint fails to state a claim for substantially the same reasons given by the district court.  Although Mr. Duncan believes the district court erred because it referred to him as a "New Mexico inmate" when in fact he is a transferee inmate from South Dakota, he merely indulges in semantics.  There is no doubt he is presently incarcerated in a penal facility of the State of New Mexico and is an inmate of that institution by definition.  Thus the district court's analysis is not erroneous.


4
AFFIRMED.



*
 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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


