                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          FEB 7 2002
                                  TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


CLIFFORD SHEPHERD,

          Plaintiff-Appellant,

v.
                                                        No. 01-2175
GARY JOHNSON, Governor, State of                 (District of New Mexico)
New Mexico; ROBERT J. PERRY,                  (D.C. No. CV-01-342-MV/LCS)
Secretary of Corrections; STATE OF
NEW MEXICO; NEW MEXICO
DEPARTMENT OF CORRECTIONS,

          Defendants-Appellees.




                             ORDER AND JUDGMENT *


Before HENRY, BRISCOE, and MURPHY, Circuit Judges.


      After examining appellant’s brief and the appellate record, this court has

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.


      *
       This order and judgment is not binding precedent, except under the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.
      Proceeding pro se, Clifford Shepherd appeals the district court’s dismissal

of the civil rights complaint he brought pursuant to 42 U.S.C. § 1983. Shepherd’s

complaint contained an allegation that his incarceration in a privately run

correctional facility is a violation of New Mexico law. He further alleged that he

was deprived of the rights granted him by that state law without due process.

Shepherd also alleged that as a result of defendants’ actions, he has no access to a

law library or a typewriter. Finally, Shepherd asserted that defendants retaliated

against him for filing a § 2241 habeas petition. Shepherd sought monetary

damages for these alleged constitutional violations.

      The district court concluded that Shepherd had failed to state claims upon

which relief may be granted and dismissed his complaint pursuant to 28 U.S.C. §

1915(e)(2)(B) and Fed. R. Civ. P. 12(b)(6). See Am. Mfrs. Mut. Ins. Co. v.

Sullivan, 526 U.S. 40, 49-50 (1999) (“To state a claim for relief in an action

brought under § 1983, [plaintiffs] must establish that they were deprived of a

right secured by the Constitution or laws of the United States, and that the alleged

deprivation was committed under color of state law.”). A district court may

dismiss sua sponte a pro se complaint for failure to state a claim 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.” See




                                          -2-
McKinney v. Okla. Dep’t of Human Servs., 925 F.2d 363, 365 (10th Cir. 1991)

(quotation and citations omitted).

       We have reviewed the record, appellant’s brief, and the applicable law and

affirm the district court’s dismissal of Shepherd’s complaint for substantially the

reasons stated by the district court with the following amplification. Shepherd

claims that New Mexico law creates a liberty interest in the place of his

incarceration. See N.M. Stat. Ann. § 31-20-2. We have reviewed the New

Mexico statute upon which Shepherd bases his claim and conclude that it does

not create the liberty interest he asserts. Accordingly, Shepherd’s constitutional

due process claim has no merit.

       This court AFFIRMS the district court order dismissing Shepherd’s

complaint. Shepherd’s motion to proceed in forma pauperis on appeal is

GRANTED. Shepherd, however, is reminded that despite this court’s dismissal

of his appeal, he remains obligated to continue making partial payments until his

appellate filing fee is paid in full.   See 28 U.S.C. § 1915(b).

                                          ENTERED FOR THE COURT



                                          Michael R. Murphy
                                          Circuit Judge




                                            -3-
