Duncan v. Sannicks

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUL 18 1997 TENTH CIRCUIT PATRICK FISHER Clerk

STEVE DUNCAN,

Plaintiff-Appellant,

v.

KARL SANNICKS, Secretary of Corrections; JOHN SHANKS, Warden, No. 97-2092 Penitentiary of New Mexico; DONALD (D.C. No. CIV-96-1182) HOOVER, Classification Bureau (District of New Mexico) Chief/Interstate Compact; MANUEL ROMERO, Director of Adult Prisons; GARY MEIR, Warden, South Unit; GILBERT GARCIA, Program Director, in their individual and official capacities,

Defendants-Appellees.

ORDER AND JUDGMENT*

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

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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

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.

AFFIRMED.

ENTERED FOR THE COURT

John C. Porfilio Circuit Judge

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