F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         APR 9 2004
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                             Clerk

 RICHARD SMITH,

               Plaintiff - Appellant,                   No. 03-2292
          v.                                         (D. New Mexico)
 STATE OF NEW MEXICO;                        (D.C. No. CIV-03-139-MCA/RLP)
 WILLIAM C. BIRDSALL, Eleventh
 Judicial District Court, personally and
 in his official capacity as a New
 Mexico District Court Judge; and
 SANDRA PRICE, personally and in
 her official capacity as a New Mexico
 Chief Deputy District Attorney,

               Defendants - Appellees.


                             ORDER AND JUDGMENT         *




Before EBEL , MURPHY , and McCONNELL , Circuit Judges.




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

determined unanimously that oral argument would not materially assist the



      *
       This order and judgment is not binding precedent, except under the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.
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, Richard Smith appeals the district court’s   sua sponte

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

Smith filed the action against Sandra Price, the New Mexico chief deputy district

attorney; the Honorable William C. Birdsall, a New Mexico State District Court

judge; and the State of New Mexico. Smith alleged that defendants’ actions,

taken in both their individual and official capacities, violated his Fourth

Amendment rights and his Fourteenth Amendment due process rights.

       The district court first concluded that Price and Birdsall were entitled to

absolute immunity as to any claims asserted against them in their individual

capacities. Buckley v. Fitzsimmons , 

, 273 (1993);     Wiggins v. N.M.

State Supreme Court Clerk , 

, 815 (10th Cir. 1981). Further, the

claims asserted against the State of New Mexico and against Price and Birdsall

while acting in their official capacities failed because “neither a State nor its

officials, acting in their official capacities are ‘persons’” against whom a claim

for damages can be brought pursuant to § 1983.     Will v. Mich. Dep’t of State

Police , 

, 71 (1989). Finally, the court concluded that any other claims

for damages Smith asserted against the State of New Mexico were barred by the




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State’s sovereign immunity from suit. Accordingly, the district court dismissed

Smith’s complaint with prejudice.

        Smith first challenges the dismissal of the complaint on the merits.    1



Because the district court’s order relied on both § 1915(e)(2) and Rule 12(b)(6),

we will apply the Rule 12(b)(6)      de novo standard of review in this case.   See

Perkins v. Kansas Dept. of Corr      ., 

, 806 (10th Cir. 1999). We have

reviewed the briefs and the applicable law and have found no reversible error in

the district court’s analysis. Accordingly, we      affirm the dismissal of Smith’s

complaint.

       Smith also argues that the district court should not have dismissed the

complaint with prejudice without first giving him notice. This court, however,

has held that a district court may    sua sponte dismiss a pro se complaint under

Rule 12(b)(6) “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.”   Hall v. Bellmon , 

, 1109 (10th Cir. 1991) (citation

omitted). It is clear from our review of the record that Smith cannot prevail on




       1
        Smith’s motion to amend his opening brief, as corrected by the errata
sheet, is granted.

                                             -3-
the facts alleged in his complaint and allowing him the opportunity to amend the

complaint would be futile. Consequently, the district court did not err when it

dismissed Smith’s complaint   sua sponte .

                                               ENTERED FOR THE COURT


                                               Michael R. Murphy
                                               Circuit Judge




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