                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       August 2, 2006
                                  TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                        Clerk of Court



RO BERT GEN E ROSS,

          Plaintiff-Appellant,
                                                         No. 06-2039
v.
                                                  (District of New M exico)
                                              (D.C. No. CIV-05-1086 BB/LFG)
JOSE ROM ERO; LT. RICHARD
H EN D ERSO N ,

          Defendants-Appellees.




                             OR D ER AND JUDGM ENT *


Before M U RPH Y, SE YM OU R, and M cCO NNELL, 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.

      Proceeding pro se and in form a pauperis, state prisoner Robert Gene Ross

appeals the district court’s dismissal of the civil rights complaint he brought


      *
       This order and judgment is not binding precedent, except under the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.
pursuant to 42 U.S.C. § 1983. In his complaint, Ross alleged he was moved from

one prison housing unit to another unit. In the process, some of Ross’ property

was lost. Ross asserted the loss of property violated his Fifth and Fourteenth

Amendment right to due process and his Eighth Amendment right to be free from

cruel and unusual punishment. As relief, Ross sought both damages and an order

for an early release date from his prison term.

      The district court began by recognizing Ross’ damages claims differed

significantly from his request for an early release date from prison and that the

issues had to be addressed separately. As to the damages claims, the district court

dismissed them w ith prejudice sua sponte pursuant to 28 U.S.C. § 1915 (e)(2) and

Fed. R. Civ. P. 12(b)(6). As to Ross’ due process claim, the district court noted

the claim was based on an assertion that policies of the New M exico Department

of Corrections created a protected interest in the property removed from his cell

and eventually lost. That such a right could flow from mandatory state prison

regulations was, however, directly rejected in this court’s decision in Cosco v.

Uphoff, 195 F.3d 1221, 1223-24 (10th Cir. 1999). Because the regulations

identified by Ross could not support a due process claim, the district court

dismissed with prejudice. Ross’ Eighth Amendment damages claim, on the other

hand, was based on his asserted loss of legal papers which allegedly prevented

him from collaterally attacking his conviction. In dismissing this claim, the

district court noted that Ross had not demonstrated “relevant actual injury,” as

                                         -2-
required by Lewis v. Casey, 518 U.S. 343, 351 (1996), because he had previously

filed a habeas corpus proceeding in federal court and currently had a collateral

proceeding pending in state court.

      Having disposed of Ross’ claims for damages, the district court proceeded

to Ross’ request for a reduction in the term of his sentence. Concluding that such

a claim was cognizable only in a habeas corpus proceeding, the district court

dismissed the claim without prejudice. Nelson v. Campbell, 541 U.S. 637, 643

(2004).

      Having considered Ross’ voluminous appellate filings and having reviewed

the district court’s decision de novo, this court finds no trace of reversible error.

Accordingly, we A FFIR M for substantially those reasons set out in the district

court order dismissing Ross’ complaint and the district court order denying

reconsideration. In particular, this court notes, as did the district court, that Ross’

focus on the language of the prison regulations, as opposed to the nature of the

deprivation, is misplaced. Sandin v. Connor, 515 U .S. 472, 481-82 (1995). Ross’

M otion to Include Evidence into Appellant/Petitioner’s Opening Brief, containing

materials not submitted to the district court, is hereby DENIED. Ross is




                                          -3-
reminded that 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



                                        M ichael R. M urphy
                                        Circuit Judge




                                          -4-
