Andy RAEL, Plaintiff-Appellant, v. Gary JOHNSON, Governor, State of New Mexico; Robert J. Perry, Secretary of Corrections; New Mexico Department of Corrections, Defendants-Appellees, 32 F. App'x 525

ORDER AND JUDGMENT PAUL KELLY, Jr., Circuit Judge. Plaintiff-Appellant Andy Rael, a prisoner proceeding pro se, appeals from the district court’s dismissal of his 42 U.S.C. § 1983 complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm. Mr. Rael brought this action after we dismissed without prejudice similar claims he raised in a habeas petition because the claims were more appropriately classified as a “conditions of confinement” action under § 1983. See Rael v. Williams, 223 F.3d 1153, 1154 (10th Cir.2000).

On appeal, he argues that New Mexico is without authority under state law to house inmates in a correctional facility in Lea County; that he has been deprived of due process and equal protection because the State has used its prison contracts as a means to comply with limits on overcrowding imposed by a consent decree. Mr. Rael is surely wrong that the state cannot house him in Lea County. See N.M. Stat. Ann. § 31-20-2(G) & 33-1-17(8X2). His misunderstanding is the result of applying Atty. Gen. Op. 87-53 to the statutes as they now exist' — the statutes have been amended. Mr.

Rael has no federally protected right in a place of incarceration. We affirm the district court’s judgment substantially for the reasons contained in its memorandum opinion and order. I R. doc. 8. AFFIRMED. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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.