UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MICHAEL SANCHEZ,
Plaintiff - Counter-Defendant -
Appellant,	No. 01-2239
v.	(D.C. No. CIV-00-1747-M/LFG)
BEATRICE SANCHEZ; MARK GARCIA; LUANNA GARCIA; ROSS CHAVEZ, doing business as Hog Heaven; CLIFF MCINTYRE; SAMUEL BEHAR; YVETTE GARDUNO-RODARTE; and RAY DURAN,	(D. New Mexico)
Defendants - Appellees,

TOM GORDON,

Defendant - Counter-Claimant -
Appellee.

ORDER AND JUDGMENT*

Before SEYMOUR and McKAY, Circuit Judges, and BRORBY, Senior Circuit Judge.

After examining the briefs and the 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)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

Mr. Sanchez filed state law tort claims against Defendants in federal district court asserting diversity jurisdiction. When Mr. Sanchez filed his complaint, all Defendants were residents of New Mexico. Mr. Sanchez was a resident of New Mexico prior to his incarceration. Mr. Sanchez is currently incarcerated at La Tuna Federal Prison which is located partially in New Mexico and partially in Texas. Because of this, Mr. Sanchez claimed that he was a citizen of Texas when he filed his complaint. The district court concluded that Mr. Sanchez was a citizen of New Mexico because he resided in New Mexico prior to his incarceration and dismissed Mr. Sanchez's action without prejudice for lack of subject matter jurisdiction.

We agree with the district court that Mr. Sanchez is a citizen of New Mexico. His current incarceration at La Tuna and his assertion that he intends to stay in Texas after his incarceration are not enough to change Mr. Sanchez's legal residency. Additionally, we cannot find error in the district court's denial of Mr. Sanchez's Motion to Reconsider and Amend Judgment and Motion for Leave to File Amendment.

After a thorough review of the briefs and the record, and for substantially the same reasons set forth in the district court's well-reasoned June 29, 2001 Order, we hold that no relief is available to Mr. Sanchez.

Appellant's complaint is DISMISSED.

Entered for the Court:

Monroe G. McKay

Circuit Judge