                                                                          F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          MAR 28 2003
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 YSIDRO N. FLOREZ,

             Plaintiff - Appellant,

 v.                                                    No. 02-2131
                                             (D.C. No. CIV-02-0228 BB/DJS)
 GARY JOHNSON, Governor, State of                   (D. New Mexico)
 New Mexico; ROBERT PERRY,
 Secretary of Corrections; STATE OF
 NEW MEXICO; NEW MEXICO
 DEPARTMENT OF CORRECTIONS,

             Defendants - Appellees.


                          ORDER AND JUDGMENT            *




Before LUCERO , BALDOCK and McCONNELL , Circuit Judges.              **




      *
       This order and judgment is not binding precedent, except under the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.

      **
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore ordered submitted without oral argument.
      Ysidro Florez, a prisoner of the State of New Mexico, appearing pro se and

proceeding in forma pauperis, appeals the district court’s sua sponte dismissal of

his civil rights action brought pursuant to 42 U.S.C. § 1983. In his principal

brief, Appellant challenges the district court’s dismissal of his claim that

incarceration in a privately operated prison, the Lea County Correctional Facility,

violates both state and federal constitutional law. In a supplemental filing, 1

Appellant challenges the district court’s dismissal of three additional claims: that

he was denied access to a law library in retaliation for his litigation against the

State; that, independently of the retaliation claim, he was unconstitutionally

denied access to a law library or other legal resources; and that prison authorities

censored his mail. Acting sua sponte, and without calling for briefing from the

defendants, the district court dismissed all four claims for failure to state a claim

on which relief may be granted.

      The district court dismissed Appellant’s claim that his confinement in a

private facility is unlawful on the ground that prisoners have no constitutionally

protected interest in the nature of the institution in which they are confined. Op.

2. Appellant’s claim of retaliation was dismissed for want of specific factual

allegations. His claim of deprivation of a law library or legal assistance was



      1
        We grant Appellant’s motion to file a supplemental brief and treat it as
part of his opening brief.

                                          -2-
dismissed for lack of standing under Lewis v. Casey, 518 U.S. 343, 351 (1996),

because he did not allege any concrete injury as a result of the alleged violation.

Op. 2-3. Finally, the district court dismissed his mail censorship claim on the

ground that Appellant asserted no concrete injury, and that his claim “is squarely

contradicted by the fact that Plaintiff’s complaint was mailed to the Court.” Op. 3.

      For reasons stated below, we affirm the district court’s decision. The

district court’s dismissal of this action under 28 U.S.C. § 1915(e)(2)(B)(ii)

constitutes a prior occasion for purposes of § 1915(g) (counting in forma pauperis

actions by prisoners which are dismissed as failing to state claim for relief).

      The Prison Litigation Reform Act of 1995 (PLRA), Pub. L. No. 104-134 §§

801-810, added section 1915(e)(2)(B) to Title 28 of the United States Code

which, as amended, provides that when a plaintiff is proceeding in forma

pauperis, the court shall dismiss a case at any time if the court determines that the

action is frivolous or malicious, fails to state a claim on which relief may be

granted, or seeks monetary relief against a defendant who is immune from such

relief. 28 U.S.C. § 1915(e)(2)(B). Similarly, the PLRA added section 1997e to

title 42 of the United States Code which, as amended, directs a district court, on

its own motion, to dismiss any action filed by a prisoner under 42 U.S.C § 1983

with respect to prison conditions if the court is satisfied that the action is

frivolous or malicious, or if it fails to state a claim upon which relief can be


                                           -3-
granted. 42 U.S.C. § 1997e. We review de novo dismissals for failure to state a

claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Perkins v. Kansas Dept. of

Corrections, 165 F.3d 803, 806 (10th Cir. 1999). The district court correctly

recognized that allegations in a pro se complaint must be “liberally construed.”

Op. 1, citing Northington v. Jackson, 973 F.2d 1518, 1520-21 (10th Cir. 1992).

      Although it does not affect the ultimate outcome of this case, the district

court erred in failing to consider the question of jurisdiction before proceeding to

the merits. The defendants are the Governor, the Secretary of Corrections, and

the Department of Corrections, in their official capacities. In his Complaint,

Appellant seeks compensatory damages of $500,000 “to pay for his illegal

incarceration” and punitive damages of $100,000 “to keep the defendants from

repeating such an act.” Pl. Complaint, App. at tab 1, at 6. The Eleventh

Amendment bars suits in federal court against states, and against state officers in

their official capacities for money damages. See Edelman v. Jordan, 415 U.S.

651, 663 (1974). Moreover, the Supreme Court has held that neither states nor

state officers sued in their official capacities are “persons” within the meaning of

42 U.S.C. § 1983. Will v. Michigan Department of State Police, 491 U.S. 58, 71

(1989). “Because the State’s assertion of Eleventh Amendment immunity

challenges the subject matter jurisdiction of the district court, the issue must be

resolved before a court may address the merits of [a plaintiff’s] underlying . . .


                                         -4-
claim.” Martin v. Kansas, 190 F.3d 1120, 1126 (10th Cir. 1999); see also Harris

v. Owens, 264 F.3d 1282, 1288 (10th Cir. 2001) (appellate court must address

Eleventh Amendment issue before the merits, even if merits are more easily

resolved than Eleventh Amendment issues). Accordingly, the district court should

have dismissed these claims for want of jurisdiction under the Eleventh

Amendment and §1983.

       As the district court correctly noted, however, Appellant’s complaint can be

(liberally) construed as seeking equitable relief as well as money damages, at

least on the claim that incarceration in a privately operated prison is

unconstitutional. 2 The Eleventh Amendment does not prohibit suits against state

officials for prospective injunctive relief.         Ex Parte Young , 209 U.S.123, 159-60

(1908); Thompson v. Colorado , 278 F.3d 1020, 1024 (10th Cir. 2001). On this

claim, therefore, we reach the merits and affirm for substantially the reasons

stated by the district court.


       2
          Appellant’s prayer for relief reads as follows:
        Petitioner requests that the defendants be ordered to pay for his illegal
        incarceration: Punitive Damages in the amount of $100,000 (one-hundred
        thousand dollars), and Compensatory damages in the amount of $500,000
        (five-hundred thousand dollars) to keep the defendants from repeating such
        an act, plus an additional eight (8) days for each day of incarceration in the
        Lea County Correctional Facility under the illegal contract and whatever
        else the court deems just and proper.
Pl. Complaint, App. at tab 1, at 6. The district court evidently interpreted the final
words (“whatever else the court deems just and proper”) as a prayer for equitable
relief.

                                               -5-
       On several occasions, this Court has addressed the relationship between the

State of New Mexico and the privately operated Lea County Correctional Facility.

In each case we held that an inmate’s incarceration in a private prison does not

raise a federal constitutional claim.     See Rael v. Williams , 232 F.3d 1153 (10th

Cir. 2000) (denying inmates federal constitutional claim for being held in private

prison); Jordan v. Williams , 4 Fed. Appx. 544 (10th Cir. 2001) (unpublished

opinion) (same). A prisoner has a legally protected interest in the conduct of his

keeper, but not in the keeper’s identity.     Poulos v. McKinna , 210 F.3d 390 (10th

Cir. 2000) (unpublished opinion)        citing Pischke v. Litscher , 178 F.3d 497, 500

(7th Cir. 1999) . The issue is thus well settled, and the district court was correct

to dismiss this claim on the merits.

         The district court also properly dismissed Appellant’s allegations

concerning the Defendants’ supposed violation of various contractual provisions

and state laws, on the ground that § 1983 is reserved for allegations of federally

protected rights. Pitts v. Turner and Boisseau, Chartered, 850 F.2d 650, 653

(10th Cir. 1988) (plaintiff must allege violation of federally protected right).

       Appellant’s remaining claims are subject to the same Eleventh Amendment

bar already discussed. Moreover, it is not clear that he has raised a claim for

equitable relief with respect to his remaining claims. The sole mention of

“whatever [other relief] the court deems just and proper” was in connection with


                                              -6-
his private prison claim. Pl. Complaint, App. at tab 1, at 6. Moreover, even if he

had sought equitable relief on his other claims, he has not alleged any connection

between these defendants and the supposed constitutional violations. If he was

subjected to retaliation, deprived of access to a prison law library, or subject to

mail censorship, it presumably would have been done by the prison warden or his

staff – not by the Governor, the Secretary of Corrections, or the Department of

Corrections. Ledbetter v. City of Topeka, Kansas, 318 F.3d 1183, 1187 (10th Cir.

2003) (under § 1983, defendant may not be held liable under a theory of

respondeat superior; plaintiff must show affirmative link between constitutional

deprivation and either the defendant’s personal participation, his exercise of

control or direction, or his failure to supervise). The district court could have

dismissed these claims on these grounds. In the alternative, however, we affirm

the decision below for substantially the reasons set forth by the district court.

      To bring a successful retaliation claim, a plaintiff must “allege specific

facts showing retaliation because of the exercise of the prisoner’s constitutional

rights.” Frazier v. Dubois, 922 F.2d 560, 562 n.1 (10th Cir. 1990) (emphasis

added); Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998). Appellant’s

contention that the State of New Mexico retaliated against him personally for

filing litigation against the State, by closing all law libraries in the State (App. at




                                           -7-
tab 1, p. 3b), not only contains no specific allegations of fact, but is facially

absurd. Therefore, the district court properly dismissed the claim.

      Insofar as Appellant claims that his constitutional right (independent of the

retaliation claim) to access to the courts was impaired by denial of access to a law

library, we agree with the district court that this claim must be dismissed for want

of “actual injury.” See Lewis v. Casey, 518 U.S. 343, 351 (1996). In Lewis, the

Supreme Court held that an “inmate cannot establish relevant actual injury simply

by establishing that his prison’s law library or legal assistance program is subpar

in some theoretical sense.” Id. Rather, the inmate must “demonstrate that the

alleged shortcomings . . . hindered his efforts to pursue a legal claim. He might

show, for example, that a complaint he prepared was dismissed for failure to

satisfy some technical requirement which, because of deficiencies in the prison’s

legal assistance facilities, he could not have known.” Id. Appellant alleged no

facts in his complaint that would support such a showing. He identified no legal

proceeding in which he was involved, or how the supposed lack of legal research

materials might have affected it. 3


      3
        In his supplemental filings on appeal Florez asserts that he suffered actual
injury because “his petition for writ of habeas . . . was dismissed ‘with
prejudice’” (App. Supplemental Brief at p.3). This statement is conclusory and
does not reveal the factual basis on which he claims that denial of library access
impeded his otherwise successful prosecution of the habeas petition. Additionally,
we note that allegation was not made in district court. In reviewing judgments of
                                                                       (continued...)

                                           -8-
      The district court’s disposition of Appellant’s mail censorship claim gives

us somewhat more pause. “Correspondence between a prisoner and an outsider

implicates the guarantee of freedom of speech under the First Amendment and a

qualified liberty interest under the Fourteenth Amendment.” Treff v. Galetka, 74

F.3d 191, 194 (10th Cir, 1996) citing Procunier v. Martinez, 416 U.S. 396, 408

(1974). Under Martinez, limitations on a prisoner’s First Amendment rights in

his outgoing mail “must further an important or substantial governmental interest

unrelated to the suppression of expression [and] . . . must be no greater than is

necessary or essential to the protection of the particular governmental interest

involved.” Id. at 195.

      The district court dismissed the mail censorship claim on two grounds.

First, it held that “this allegation asserts no ‘relevant-actual injury.’” Op. 3,

quoting Lewis, 518 U.S. at 351. Second, it held that the claim “is squarely

contradicted by the fact that Plaintiff’s complaint was mailed to the Court.” Op. 3.

Neither of these is a sufficient reason to dismiss the complaint. Unlike the right

of access to a prison library asserted in Lewis, which is purely instrumental, the

First Amendment right to send and receive mail is a personal constitutional right.



      3
       (...continued)
dismissal, this Court examines only the allegations made in the complaint and
ignores allegations raised for the first time in appellate briefs. See Smith v. Plati,
258 F.3d 1167, 1172 (10th. Cir. 2001).

                                           -9-
Censorship of a prisoner’s mail, if not adequately justified, states a constitutional

claim even without linkage to further consequences. And we cannot understand

why “the fact that Plaintiff’s complaint was mailed to the Court” is inconsistent

with Appellant’s allegation that his mail is being censored. To “censor” means

merely that the mail is subject to examination and control by the authorities, not

that each and every piece of mail is blocked. W EBSTER ’ S T HIRD I NTERNATIONAL

D ICTIONARY 361 (1976).

      Nonetheless, the district court was correct to dismiss this claim. Appellant

made no specific factual allegations in supporting the censorship claim. He does

not state when the censorship began, who engaged in the censorship, for what

purpose, or to what extent. He does not allege that any particular piece of mail

was censored. He does not allege any connection between the defendants and the

alleged mail censorship. His one-sentence claim that the prison “is now censoring

all mail” is simply too vague and conclusory to state a claim for relief against

these defendants, and “we will not supply additional factual allegations to round

out a plaintiff’s complaint or construct a legal theory on a plaintiff’s behalf.”

Whitney v. New Mexico, 113 F.3d 1170, 1175 (10th Cir. 1997). See also

Northington v. Jackson, 973 F.2d 1518,1521 (10th Cir. 1992) (noting that even

though pro se pleadings are liberally construed, “the court should not assume the

role of advocate, and should dismiss claims which are supported only by vague


                                         -10-
and conclusory allegations”); Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir.

1996) (liberal construction of pro se complaint “does not relieve the plaintiff of

the burden of alleging sufficient facts on which a recognized legal claim could be

based.”).

      Accordingly we AFFIRM the decision of the district court.




                                                ENTERED FOR THE COURT



                                                Michael W. McConnell
                                                Circuit Judge




                                         -11-
