                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            MAR 26 2002
                                    TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                  Clerk

 RONNIE TUCKER,

          Plaintiff - Appellant,
 v.
                                                          No. 01-2273
 GARY JOHNSON, Governor, State of
                                               (D.C. No. CIV-01-544-MV/WWD)
 New Mexico; ROBERT J. PERRY,
                                                       (D. New Mexico)
 Secretary of Corrections; STATE OF
 NEW MEXICO; NEW MEXICO
 DEPARTMENT OF CORRECTIONS,

          Defendants - Appellees.


                             ORDER AND JUDGMENT *


Before EBEL, KELLY, and LUCERO, Circuit Judges.



      Plaintiff-Appellant Ronnie Tucker, 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.


      *
         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judgment is not binding precedent, except under the doctrines of law of the case,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.
      Tucker, 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. Tucker further alleges that the State

retaliated against his litigation “by taking all law libraries in the State.” (R. Doc.

1 Attach. at 2.) Specifically, he claims:

      The State no longer provides case law forms or typewriters for the
      petitioner to research and prepare his responses. The state has not
      provided anyone to advise petitioner, 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 Tucker’s claims sua sponte pursuant to 28

U.S.C. § 1915(e)(2) and Fed. R. Civ. P. 12(b)(6). On appeal, Tucker does not

take issue with the district court’s dismissal of his retaliation claim. Regarding

the remainder of the complaint, Tucker 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

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      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 1281–82 (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.”). Tucker 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,

483–84 (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.




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Id. at 484 (citations omitted). Tucker’s 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

Tucker’s complaint. We also conclude that affording Tucker an opportunity to

amend his complaint would have been futile.

      The judgment is AFFIRMED. The mandate shall issue forthwith.



                                               ENTERED FOR THE COURT



                                               Carlos F. Lucero
                                               Circuit Judge




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