F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                                        PU BL ISH
                                                                    October 17, 2006
                      UNITED STATES COURT O F APPEALS              Elisabeth A. Shumaker
                                                                       Clerk of Court
                                  TENTH CIRCUIT



 JESSE TRUJILLO ,

          Plaintiff-Appellant,
 v.

 JOE W ILLIAM S, Secretary; ELM ER
 BUSTOS, Director, New M exico
 D epartm ent of C orrections; G ENE                    No. 04-2257
 JOHNSON, Director; L.W .
 H U FFM A N , R egional D irector; S.K.
 YOUNG, W arden, Institutional
 Classification Authority, Virginia
 Department of Corrections,

          Defendants-Appellees.



                    Appeal from the United States District Court
                          for the District of New M exico
                        (D.C. No. CIV-04-0635 M V/W DS)


Submitted on the briefs: *

Jesse Trujillo, filed a brief pro se.


Before H E N RY , M cKA Y and EBEL, Circuit Judges.




      *
        After examining appellant’s brief 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) and 10th Cir. R.
34.1(G ). The case is therefore ordered submitted without oral argument.
EBEL, Circuit Judge.




      Plaintiff-Appellant Jesse Trujillo, a pro se prisoner proceeding in forma

pauperis, filed this 42 U.S.C. § 1983 claim against various New M exico and

Virginia corrections officials 1 alleging that they violated his constitutional rights

by: 1) improperly classifying and segregating him; 2) denying him access to legal

materials and the courts; 3) providing him with a nutritionally inadequate diet;


      1
          M r. Trujillo’s complaint names “Defendant Institutional Classification
Authority” as a party to this suit. W e liberally construe that designation as
asserting claims against an unnamed Virginia official referred to by the title
“Institution Classification Authority” at W allens Ridge State Prison rather than
asserting a claim against a state agency. See ANR Pipeline Co. v. Lafaver, 

, 1187 (10th Cir. 1998) (“[A] citizen’s suit against a state agency is
barred by the Eleventh Amendment just as surely as if the suit had named the
state itself. Furthermore, it does not matter what form of relief a citizen might
request in a suit against a state agency . . . .”) (citing Pennhurst State Sch. &
Hosp. v. Halderman, 

, 100 (1984)). M r. Trujillo’s complaint further
suggests that he intended to sue an individual, not an agency. In the section
listing the parties, he wrote:

      Defendant Institutional Classification Authority is a citizen of Virginia
      whose address is P.O. Box 759, Big Stone Gap, Virginia 24219. And
      who is imployed [sic] as the Institutional Classification Authority of
      W allens Ridge State Prison, Virginia department of corrections. At the
      time the claims alleged in this C omplaint this defendant was acting
      under color of state law as Classification Authority of W allens Ride
      State Prison.     He is legally responsible for fair and im partial
      recommendations of classification decision to the warden for all
      prisoners at W allens Ridge State Prison.

Accordingly, we interpret M r. Trujillo to allege claims only against officials of
Virginia and New M exico, rather than the state or a state agency.

                                          -2-
and 4) treating him differently than other inmates. The district court sua sponte

ordered that “Plaintiff’s claims against the N ew M exico D efendants are

DISM ISSED with prejudice; Plaintiff’s claims against the Virginia D efendants

are DISM ISSED without prejudice,” pursuant to 28 U.S.C. § 1915(e)(2) and Fed.

R. Civ. P. 12(b)(6). Review ing the district court’s dismissal de novo, we affirm

in part, reverse in part, and remand for further proceedings.

                                  BACKGROUND

      M r. Trujillo is a New M exico state prisoner who was transferred by the

New M exico Department of Corrections (NM DC) to W allens Ridge State Prison

(W RSP) in Virginia on April 12, 2002. Immediately upon his arrival, WRSP held

a classification hearing at which M r. Trujillo was not permitted to present

evidence, allegedly in violation of V irginia Departmental Operating Procedure

821. 2 After the hearing, W RSP placed M r. Trujillo in segregation claiming that

he was a threat to the prison. M r. Trujillo’s initial appeal to the warden was

denied, but the regional director of the Virginia Department of Corrections

(VDOC) determined M r. Trujillo’s subsequent grievance was founded and

informed M r. Trujillo that “appropriate administrative action ha[d] been taken.”




      2
         To the extent that M r. Trujillo “seeks relief for alleged violations of state
statutes and prison regulations . . . , he has stated no cognizable claim under
§ 1983,” which establishes a cause of action only for deprivation of rights secured
by the Constitution or federal law. Gaines v. Stenseng, 

, 1225
(10th Cir. 2002); see also Adickes v. S.H. Kress & Co., 

, 150 (1970).

                                         -3-
M r. Trujillo’s classification, however, remained the same and no new hearing was

conducted.

      On July 9, 2002, at a second classification hearing during which M r.

Trujillo was again not allowed to present witnesses or evidence, he was placed in

segregation under the explanation that he “need[ed] a longer period of

adjustment;” “New M exico inmate.” M r. Trujillo appealed this decision on the

grounds that he had been in segregation for over 100 days when the average stay

for new arrivals in segregation was days or weeks; his appeal was denied by the

warden and the regional director. As a result, M r. Trujillo spent nearly a year in

segregation.

      On M arch 9, 2003, M r. Trujillo wrote a letter to another regional director

explaining that he had been classified in a prejudicial and discriminatory manner

because no Virginia or other out-of-state prisoner housed at W RSP w as classified

in the same manner as he had been classified, nor housed in segregation for this

length of time, and requested that the director intervene. According to M r.

Trujillo, the average stay in segregation for other prisoners at W RSP is less than a

month, and prisoners rarely remain in segregation even for the most serious

offenses for more than 180 days and usually only for sixty to ninety days. M r.

Trujillo explained to the director that he had been in segregation for more than

750 days. The letter was returned stating that his appeal to the director did not

meet the criteria for a Level III response.

                                         -4-
      On M arch 26, 2003, W RSP changed the rationale for M r. Trujillo’s

segregation to “inmate viewed as a threat to W RSP.” M r. Trujillo alleges that no

further indication was given as to why he might now be viewed as a threat. And

he claims that there was no marked change in his behavior to warrant such an

abrupt change in the rationale for keeping him in segregation. 3

      In early M ay 2003, pursuant to Departmental Operating Procedure 821-

7.1A , M r. Trujillo requested an annual review of his classification to assess

whether a change in his security level and treatment plan was warranted. That

request w as denied. In late M ay 2003, M r. Trujillo filed another grievance with

the VDOC, claiming that he was entitled to a classification review and should not

be excluded because he was an out-of-state prisoner. In response, the W RSP

warden stated: “Your initial classification was completed by New M exico. The

VDOC cannot reclassify you unless given permission by New M exico.” The

regional director provided nearly the same response, stating: “Investigation




      3
         Liberally construed, these allegations may support a claim for retaliation
against the Virginia defendants. See Fogle v. Pierson, 

, 1263-64
(10th Cir. 2006) (stating that “[p]rison officials may not retaliate against or harass
an inmate because of the inmate’s exercise of his constitutional rights” and noting
that “[s]everal circuits have held that a prisoner’s first amendment right to
petition the government for redress of grievances encompasses the filing of
inmate administrative appeals”) (quotations, alterations omitted), petition for cert.
filed, (U.S. (Apr. 4, 2006) (N o. 06-6669)). However, we do not address this
possible claim against the Virginia defendants because we ultimately conclude
that the district court lacked personal jurisdiction over them.

                                         -5-
reveals that you are an inmate from NM DC, therefore, the review s are done in

accordance with policies and procedures from NM CD.”

      In February 2004, in response to another grievance, VDOC informed M r.

Trujillo that “New M exico has authorized the adaptation of all policies and

procedures adopted by the V DOC for those inmates housed in V irginia. However,

matters relating to classification are still handled by New M exico.” Following the

warden’s instructions, M r. Trujillo then wrote to the secretary and the director of

the NM DC requesting reclassification of his status. He never received a response.

      M r. Trujillo claims that the conditions of his confinement violated his

Fourteenth Amendment due process and equal protection rights, his constitutional

right of access to the courts, and his Eighth Amendment right against cruel and

unusual punishment. Based on these allegations, M r. Trujillo filed this § 1983

action in federal district court for the District of New M exico against various

Virginia and New M exico prison officials.

                                   D ISC USSIO N

      After granting M r. Trujillo in form a pauperis status, the district court,

pursuant to § 1915(e)(2), dismissed without prejudice M r. Trujillo’s claims

against the Virginia defendants for lack of personal jurisdiction and improper

venue. It also dismissed with prejudice M r. Trujillo’s claims against the New

M exico defendants under § 1915(e)(2) and Fed. R. Civ. P. 12(b)(6) for failure to

state a claim upon which relief may be granted. W e review both dismissals de

                                         -6-
novo. See Perkins v. Kan. Dep’t of Corr., 

, 806 (10th Cir. 1999)

(holding that a de novo standard governs review of dismissals under § 1915 for

failure to state a claim); 

(“[W ]here [a] frivolousness

determination turns on an issue of law, we review the determination de novo.”).

I. Claims against the V irginia defendants

      The district court concluded that 1) it had no jurisdiction over the Virginia

defendants because nothing in the complaint indicated any connection between

the Virginia defendants and the State of New M exico such that in personam

jurisdiction could be properly exercised, and 2) “venue [was] improper in this

district.” The court then correctly noted that, “[u]nder these circumstances,

claims against the Virginia D efendants could be severed and transferred to

Virginia under 28 U.S.C. § 1406(a) and Fed. R. Civ. P. 12(b)(2) & (3) . . . or

dismissed.” See Doering ex rel. Barrett v. Copper M ountain, Inc., 

,

1209 n.3 (10th Cir. 2001) (“The district court had the authority either to dismiss

or transfer the case for improper venue or lack of personal jurisdiction.”). The

district court ordered the latter, dismissing without prejudice all of M r. Trujillo’s

claims against the V irginia defendants. W e affirm the district court’s

jurisdictional decision but vacate and remand its decision to dismiss rather than

transfer.




                                         -7-
      A. Section 1915 sua sponte dismissal

      Section 1915 contains no express authorization for a dismissal for lack of

personal jurisdiction or venue. See 28 U.S.C. § 1915. 4 However, we have

previously held that a district court may, in certain limited circumstances,

properly dismiss under § 1915 based on an affirmative defense. See 

; Fratus v. Deland, 

, 674-75 (10th Cir. 1995). As the

Supreme Court has described:

      Section 1915(d) [the precursor to § 1915(e)] is designed largely to
      discourage the filing of, and waste of judicial and private resources
      upon, baseless lawsuits that paying litigants generally do not initiate
      because of the costs of bringing suit and because of the threat of
      sanctions for bringing vexatious suits under Federal Rule of Civil
      Procedure 11. To this end, the statute accords judges not only the
      authority to dismiss a claim based on an indisputably meritless legal
      theory, but also the unusual power to pierce the veil of the complaint’s
      factual allegations and dismiss those claims whose factual contentions
      are clearly baseless.




      4
         W e note that there is a split of authority as to whether a court can
consider such defenses in dismissing pursuant to § 1915. Compare Sanders v.
United States, 

, 871 (8th Cir. 1985) (affirming dismissal under
§ 1915 for want of personal jurisdiction) with Anger v. Revco Drug Co., 

, 958 (D.C. Cir. 1986) (per curiam) (“[W]e hold that a pro se complaint may
not be dismissed on its face under [§ 1915] solely on the ground that the court
lacks personal jurisdiction over the defendants.”); Sinwell v. Shapp, 

,
19 (3d Cir. 1976) (stating, in dicta, that a court cannot dismiss sua sponte under
§ 1915 on the grounds of improper venue because venue is a w aivable defense);
cf. Costlow v. W eeks, 

, 1487-88 (9th Cir. 1986) (allowing dismissal
sua sponte for lack of venue before a responsive pleading had been filed);
Concession Consultants, Inc. v. M irisch, 

, 371 (2d Cir. 1966)
(holding that a district court, in the absence of “extraordinary circumstances,”
should not raise sua sponte the issue of improper venue).

                                        -8-
Neitzke v. W illiams, 

, 327 (1989). 5 In light of these policy

considerations, and despite the fact that lack of personal jurisdiction and venue

represent defenses that, similar to affirmative defenses, can be waived if not

properly raised, see Fed. R. Civ. P. 12(h)(1), we conclude that a district court

may, in certain limited circumstances described below, dismiss under § 1915 for

lack of personal jurisdiction and for improper venue, as well as for affirmative

defenses.

      In the context of affirmative defenses, we have cautioned that sua sponte

dismissal on such grounds should be “reserved for those extraordinary instances

when the claim’s factual backdrop clearly beckons the defense.” 

. The same caution applies to sua sponte dismissals for lack of personal

jurisdiction and improper venue.   Accordingly, under § 1915, the district court

may consider personal jurisdiction and venue sua sponte “only when the defense

is obvious from the face of the complaint and no further factual record is required

to be developed.” 

(quotations, alterations omitted).

And the district court may dismiss under § 1915 only if “it is clear that [the




      5
         The Prison Litigation Reform Act (“PLRA”) made three pertinent
changes to section 1915(d). First, dismissal became mandatory. See 28 U.S.C.
§ 1915(e). Second, it directed the court to dismiss if it “determine[d]” rather than
was “satisfied” that the case met the appropriate dismissal criteria. See 

added “failure to state a claim” as a basis for dismissal. See 

                                        -9-
plaintiff] can allege no set of facts,” 

, to support personal

jurisdiction or venue.

      B. Personal jurisdiction over the V irginia defendants

      In determining whether a federal court has personal jurisdiction over a

defendant, the court must determine “(1) w hether the applicable statute

potentially confers jurisdiction by authorizing service of process on the defendant

and (2) whether the exercise of jurisdiction comports with due process.” Peay v.

Bellsouth M ed. Assistance Plan, 

, 1209 (10th Cir. 2000) (quotations

omitted). Because 42 U.S.C. § 1983 does not, by itself, confer nationwide service

of process or jurisdiction upon federal district courts to adjudicate claims, Fed. R.

Civ. P. 4(k)(1)(A) refers us to the New M exico long-arm statute, 6 which is

      6
          New M exico’s long-arm statute provides, in pertinent part:

      A. Any person, whether or not a citizen or resident of this state, who in
      person or through an agent does any of the acts enum erated in this
      subsection thereby submits himself or his personal representative to the
      jurisdiction of the courts of this state as to any cause of action arising
      from:
             (1) the transaction of any business within this state;
             (2) the operation of a motor vehicle upon the highways of this
             state;
             (3) the commission of a tortious act within this state;
             (4) the contracting to insure any person, property or risk located
             within this state at the time of contracting;
             (5) with respect to actions for divorce, separate maintenance or
             annulment, the circumstance of living in the marital relationship
             within the state, notwithstanding subsequent departure from the
             state, as to all obligations arising from alimony, child support or
             real or personal property settlements under C hapter 40, Article
                                                                          (continued...)

                                        - 10 -
coextensive with constitutional limitations imposed by the Due Process Clause.

See Tercero v. Roman Catholic D iocese, 

, 54 (N.M . 2002). Thus, if

jurisdiction is consistent with the Due Process Clause, then New M exico’s long-

arm statute authorizes jurisdiction over a nonresident defendant.

       The exercise of jurisdiction over a nonresident defendant comports w ith

due process “‘so long as there exist minimum contacts between the defendant and

the forum State.’” Intercon, Inc. v. Bell Atl. Internet Solutions, Inc., 

, 1247 (10th Cir. 2000) (quoting W orld-W ide Volkswagen Corp. v.

W oodson, 

, 291 (1980)). The minimum contacts necessary for

specific personal jurisdiction may be established where “the defendant has

‘purposefully directed’ its activities toward the forum jurisdiction and where the

underlying action is based upon activities that arise out of or relate to the

defendant’s contacts with the forum.” In re Application to Enforce

Administrative Subpoenas Duces Tecum of S.E.C. v. Knowles, 

, 418

(10th Cir. 1996) (quoting Burger King Corp. v. Rudzewicz, 

, 472

(1985)). 7


       6
           (...continued)
                  4 NM SA 1978 if one party to the marital relationship continues
                  to reside in the state.

N.M . Stat. § 38-1-16 (1971).
       7
        The minimum contacts standard is also satisfied, and a court may
maintain general jurisdiction over a nonresident defendant, based on the
                                                                      (continued...)

                                           - 11 -
             1.     M inimum contacts

      M r. Trujillo was transferred from New M exico to Virginia pursuant to the

Interstate Corrections Compact (ICC), 8 which provides for the exchange of

inmates between states. The ICC does not, by its terms, give personal jurisdiction

to the transferring state over the receiving state’s correctional officers. It also


      7
        (...continued)
defendant’s “continuous and systematic” general business contacts with the forum
state. Helicopteros N acionales v. Hall, 

, 415 (1984). Nothing in M r.
Trujillo’s complaint demonstrates that any of the V irginia defendants were
engaged in systematic and continuous activity in New M exico, nor do we believe
that he could allege facts sufficient to support such a conclusion. Accordingly,
we conclude that general personal jurisdiction on that basis is lacking.
      8
         The ICC has been enacted by forty states, including New M exico and
Virginia, and by the District of Columbia. See Ala. Code §§ 14-13-1 to 14-13-3;
Alaska Stat. §§ 33.36.010 to 33.36.040; Ariz. Rev. Stat. Ann. §§ 31-491 to
31-492; Ark. Code Ann. §§ 12-49-101 to 12-49-103; Cal. Penal Code § 11189;
Colo. Rev. Stat. §§ 24-60-1601 to 24-60-1603; Conn. Gen. Stat. §§ 18-105 to 18-
107; Del. Code Ann. tit. 11, §§ 6570 to 6573; D.C. Code §§ 24-1001 to 24-1002;
Fla. Stat. §§ 941.55 to 941.57; Ga. Code Ann. §§ 42-11-1 to 42-11-3; Haw. Rev.
Stat. §§ 355D-1 to 355D-5; Idaho Code Ann. §§ 20-701 to 20-704; 730 Ill. Comp.
Stat. 5/3-4-4; Ind. Code §§ 11-8-4-1 to 11-8-4-20; Iowa Code §§ 913.1 to 913.3;
Kan. Stat. Ann. §§ 76-3001 to 76-3003; Ky. Rev. Stat. Ann. §§ 196.610, 196.620;
M e. Rev. Stat. Ann. tit. 34-A, §§ 9401 to 9424; M d. Code Ann., Corr. Servs.
§§ 8-601 to 8-611; M inn. Stat. §§ 241.28 to 241.30; M o. Rev. Stat. §§ 217.525 to
217.540; M ont. Code Ann. §§ 46-19-301 to 46-19-302; Neb. Rev. Stat. §§ 29-
3401 to 29-3402; Nev. Rev. Stat. §§ 215A.010 to 215A.060; N.H. Rev. Stat. Ann.
§§ 622-B:1 to 622-B:3; N.J. Stat. Ann. §§ 30:7C-1 to 30:7C-12; N.M . Stat.
§§ 31-5-17 to 31-5-19; N.C. Gen. Stat. §§ 148-119 to 148-121; Ohio Rev. Code
Ann. § 5120.50; Okla. Stat. tit. 57, §§ 601 to 602; Or. Rev. Stat. §§ 421.245,
421.250, 421.254; 61 Pa. Cons. Stat. §§ 1061 to 1063; S.C. Code Ann. §§ 24-11-
10 to 24-11-30; Tenn. Code Ann. §§ 41-23-101 to 41-23-104; Tex. Code Crim.
Proc. Ann. art. 42.19; Utah Code Ann. §§ 77-28a-1 to 77-28a-5; Vt. Stat. Ann. tit.
28, §§ 1601 to 1610; Va. Code Ann. §§ 53.1-216 to 53.1-217; W ash. Rev. Code.
§§ 72.74.010 to 72.74.070, 72.74.900; W is. Stat. §§ 302-25 to 302.26; W yo. Stat.
Ann. §§ 7-13-422, 7-13-423.

                                         - 12 -
does not evidence contacts by any of the Virginia defendants with the State of

New M exico. 9

      The only contacts M r. Trujillo alleged the Virginia defendants to have with

New M exico are that they received a transferred New M exico prisoner and

implemented New M exico’s classification and work authorization policies

pursuant to the ICC. 10 These alleged contacts are very different from those



      9
         “[W]e look to the substance of the pleadings and the course of the
proceedings in order to determine whether the suit is for individual or official
liability.” Pride v. Does, 

, 715 (10th Cir. 1993). Nowhere in his
complaint does M r. Trujillo allege that any Virginia defendants acting in their
personal capacities have contacts with the State of New M exico, nor do we
believe he could allege such facts. See Ali v. District of Columbia, 

, 7
(D.C. Cir. 2002) (holding that the federal district court in W ashington, D.C.
lacked personal jurisdiction over Virginia officials sued in their personal
capacities by a D.C. inmate transferred to Virginia pursuant to the ICC). W e
therefore agree that personal jurisdiction has not been adequately established, and
could not be established, over the V irginia defendants in their personal capacities,
and we proceed to consider the allegations against the Virginia defendants in their
official capacities.
      10
           The fact that the Virginia officials’ contact with M r. Trujillo came about
because of a contract between the State of New M exico and the State of Virginia
is not enough, on its own, to subject the Virginia defendants to suit in New
M exico. See Calder v. Jones, 

, 790 (1984) (“[Employees’] contacts
with [a forum] are not to be judged according to their employer’s activities
there. . . . Each defendant’s contacts with the forum State must be assessed
individually.”); Keeton v. Hustler M agazine, Inc., 

, 781 n.13 (1984)
(“[J]urisdiction over an employee does not automatically follow from jurisdiction
over the corporation which employees him.”). Similarly, the fact that the Virginia
defendants may have acted as agents of the State of New M exico pursuant to the
ICC is also not sufficient, on its own, to give the N ew M exico district court
power to exercise personal jurisdiction. See 

; 

n.13; see also N.M . Stat. § 31-5-17, art. 4(A); Va. Code Ann.
§ 53.1-216, art. IV(a).

                                        - 13 -
approved by the Supreme Court or this Circuit to support the exercise of specific

personal jurisdiction. See, e.g., Burger 

(concluding

jurisdiction in Florida over the defendants w as proper where the defendant,

“deliberately reach[ed] out beyond [his home forum] and negotiated with a

Florida corporation for the purchase of a long-term franchise and the manifold

benefits that would derive from affiliation with a nationwide organization” and

entered “a 20-year relationship that envisioned continuing and wide-reaching

contacts with Burger King in Florida”) (quotation omitted; emphasis added);

n.6, 788-90 (1983) (holding that the defendant’s contacts

with California were sufficient to establish minimum contacts because the

allegedly libelous publication reported activities in California, most of the harm

or “effects” to the plaintiff’s reputation and career occurred in California, and the

defendant’s intentional tortious actions w ere “aimed at California”) (emphasis

added); Pro A xess, Inc. v. Orlux Distrib., Inc., 

, 1277 (10th Cir.

2005) (concluding jurisdiction in Utah over the defendants w as proper, in part,

because “services necessary for the contract were to be performed in Utah”)

(emphasis added); Far W . Capital, Inc. v. Towne, 

, 1078, 1079 (10th

Cir. 1995) (indicating that there is no “per se rule that an allegation of an

intentional tort [that has injured a forum resident] creates personal jurisdiction,”

instead “a court must undertake a particularized inquiry as to the extent to which

the defendant has purposefully availed itself of the benefits of the forum’s law s”).


                                         - 14 -
      Although the Court stated in Burger King that the “fair warning

requirement [of specific personal jurisdiction] is satisfied if the defendant has

purposefully directed his activities at residents of the 

(quotation omitted), this oft-quoted statement does not stand for the proposition

that any contact with a resident of a forum is sufficient to establish minimum

contacts with that forum. Instead, “it is essential in each case that there be some

act by which the defendant purposefully avails itself of the privilege of

conducting activities within the forum State, thus invoking the benefits and

protections of its laws.” 

(quoting Hanson v. Denckla, 

,

253 (1958)) (emphasis added); see also Shaffer v. Heitner, 

, 204

(1977) (“[T]he relationship among the defendant, the forum, and the litigation [is]

the central concern of the inquiry into personal jurisdiction.”); Institutional Food

M arketing Assocs., Ltd. v. Golden State Strawberries, Inc., 

, 456

(8th Cir. 1984) (“[I]t is the defendant’s contacts with the forum state that are of

interest in determining whether personal jurisdiction exists, not its contacts with a

resident of the forum.”) (emphasis added). Thus, “[t]he constitutional touchstone

remains w hether the defendant purposefully established ‘minimum contacts’ in

the forum.” Burger 

(citing Int’l Shoe Co. v. W ashington,

, 316 (1945)) (emphasis added).




                                         - 15 -
       Even if the Virginia defendants in their official capacities had some

responsibility for the ICC’s fulfillment and operation, 11 M r. Trujillo does not

allege, nor do we believe he could allege, that the Virginia defendants took some

act by which they “purposefully avail[ed] [themselves] of the privilege of

conducting activities within [New M exico].” Hanson, 357 U .S. at 253; see also

Intera Corp. v. Henderson, 

, 618 (6th Cir. 2005) (holding that

       11
            The ICC provides that:

       Any . . . contract [for the confinement of inmates on behalf of a sending
       state in institutions situated within receiving states] shall provide for:
              ....
       (2) Payments to be made to the receiving state or to the Federal
       Government, by the sending state for inmate maintenance, extraordinary
       medical and dental expenses, and any participation in or receipt by
       inmates of rehabilitative or correctional services, facilities, programs or
       treatment not reasonably included as part of normal maintenance.
               ....
       (4) Delivery and retaking of inmates.

       (5) Such other matters as may be necessary and appropriate to fix the
       obligations, responsibilities and rights of the sending and receiving
       states.

Va. Code Ann. § 53.1-216, art. III(a)(2), (4), & (5). It further provides that:

       Each receiving state shall provide regular reports to each sending state
       on the inmates of that sending state in institutions pursuant to this
       compact including a conduct record of each inmate and certify said
       record to the official designated by the sending state, in order that each
       inmate may have official review of his or her record in determining and
       altering the disposition of said inmate in accordance with the law which
       m ay obtain in the sending state and in order that the same may be a
       source of information for the sending state.

(d).

                                          - 16 -
Tennessee lacked personal jurisdiction over the defendants, because “[e]ven

accepting as true [p]laintiffs’ contention that the implementation of the license

agreement between [them] and [the defendants’ employer] required [the

defendants’] officers and representatives to have ‘substantial and regular’ contact

with [the plaintiffs], [p]laintiffs do not assert facts tending to show that [the

defendants] had such contact with [the plaintiffs] in Tennessee.”) (emphasis

added), cert. denied, 

(2006). All relevant conduct by the Virginia

defendants occurred in Virginia, without any indication that their acts were either

“aimed at” or “ha[d] effect in” New M exico. 

, 789;

Pebble Beach Co. v. Caddy, 

, 1156 (9th Cir. 2006) (holding that an

intentional foreign act that is both “expressly aimed at the forum state” and

“caused harm, the brunt of which is suffered and which the defendant knows is

likely to be suffered in the forum state” satisfies specific jurisdiction analysis)

(quotation omitted). Thus, the “quantity and quality” of contacts necessary to

permit the New M exico district court to assert personal jurisdiction over the

Virginia defendants in compliance with due process are not present in this case.

OM I Holdings, Inc. v. Royal Ins. Co., 

, 1092 (10th Cir. 1998); see

also Pro 

n.5. Nothing about the V irginia defendants’

“conduct and connection with the forum State [of New M exico],” if any such

connection exists at all, suggests that the Virginia defendants “should reasonably

[have] anticipate[d] being haled into court [in New M exico].” W orld-W ide

                                          - 17 -
Volksw 

. W e therefore hold that the Virginia defendants

lack sufficient contacts w ith New M exico to permit a N ew M exico court to

exercise personal jurisdiction over them. 12

             2.     Traditional notions of fair play and substantial justice

      Even assuming sufficient minimum contacts existed, we would still need to

decide whether the assertion of personal jurisdiction over the Virginia defendants

“comport[s] with ‘fair play and substantial justice.’” Equifax Servs., Inc. v. Hitz,

, 1359 (10th Cir. 1990) (quoting Burger 

); see

also OM 

(concluding that the minimum contacts standard was

satisfied, but holding that exercising personal jurisdiction would offend fair play

and substantial justice). In determining whether a court’s exercise of personal

jurisdiction is “‘reasonable’ in light of the circumstances surrounding the case,”

OM 

, we look to the follow ing factors:




      12
         Even where the “purposeful availment” requirement is established, due
process is only satisfied if “the plaintiff’s claim arises out of or results from
actions by the defendant himself that create a substantial connection with the
forum state.” Pro 

. Here, M r. Trujillo alleges only
mistreatment by individual prison employees occurring completely within the
State of Virginia. Cf. 

(holding that “even if the transfer
[of an inmate from Kentucky to M issouri] was sufficient to establish minimum
contacts” between the Kentucky corrections officials and the State of M issouri,
“the plaintiff’s cause of action [asserting denial of medical treatment] did not
arise from the act”). M r. Trujillo thus cannot establish the second requirement of
minimum contacts necessary for specific personal jurisdiction over the Virginia
defendants.


                                         - 18 -
      (1) the burden on the defendant, (2) the forum state’s interest in
      resolving the dispute, (3) the plaintiff’s interest in receiving convenient
      and effective relief, (4) the interstate judicial system’s interest in
      obtaining the most efficient resolution of controversies, and (5) the
      shared interest of the several states in furthering fundamental social
      policies.

Pro 

(quotations omitted). “[T]he weaker the

plaintiff’s showing on minimum contacts, the less a defendant need show in terms

of unreasonableness to defeat jurisdiction.” 

(quotations and alteration

omitted). Even if we got past the minimum contacts analysis, the balance of these

factors in this case ultimately weighs against allow ing New M exico to exercise

personal jurisdiction over the V irginia defendants.

      New M exico may have a substantial and legitimate interest in adjudicating

a claim of its own prisoner. See OM 

(“States have an

important interest in providing a forum in w hich their residents can seek redress

for injuries caused by out-of-state actors.”). However, Virginia has an equally

strong, if not greater, interest in how its prisons are run. Additionally, Virginia

has many, if not all, of the witnesses regarding prison conditions at W RSP and

possibly regarding M r. Trujillo’s classification.

      Furthermore, we see no particular reason to believe that due process

requires M r. Trujillo to be able to file his suit in a single forum in order to receive

convenient and effective relief. To the extent that M r. Trujillo must file separate




                                          - 19 -
lawsuits in two forums, 13 the New M exico defendants will be held accountable for

their conduct in New M exico, and the Virginia defendants w ill be held

accountable for their conduct in Virginia. Cf. Garcia v. Lemaster, 

,

1217-18 (10th Cir. 2006) (holding that a N ew M exico inmate housed in California

pursuant to the ICC was required to bring in California his civil rights suit

concerning his incarceration in California and the actions taken by prison officials

in California).

      In short, we conclude both that the Virginia defendants lack sufficient

minimum contacts w ith New M exico and that allowing a New M exico court to

exercise jurisdiction over the Virginia defendants would offend “traditional

conceptions of fair play and substantial justice.” Burger 

(quotations, alterations omitted). 14


      13
          Depending on M r. Trujillo’s allegations, he might be able to bring his
claims against both the New M exico defendants and the Virginia defendants in
Virginia because Virginia may have personal jurisdiction over the New M exico
defendants to the extent that the Virginia defendants acted as agents for the New
M exico defendants. See Pro 

(attributing actions of an
agent to the principal for purposes of determining the existence of personal
jurisdiction over the principal); M itrano v. Haw es, 

, 407 (4th Cir.
2004) (same) (citing Daynard v. Ness, M otley, Loadholt, Richardson & Poole,
P.A., 

, 55 (1st Cir. 2002), and Int’l. M ed. Group v. Am. Arbitration
Ass’n., Inc., 

, 845 (7th Cir. 2002)); Taylor v. Phelan, 

,
433 (10th Cir. 1990) (“[A ] principal may be subject to the jurisdiction of the court
because of the activities of its agent w ithin the forum state . . . .”).
      14
         Because we are affirming the district court’s conclusion that New
M exico lacked personal jurisdiction over the Virginia defendants, we do not
address w hether the N ew M exico district court was a proper venue for M r.
                                                                       (continued...)

                                        - 20 -
      C.      Federal transfer statutes

      A court may sua sponte cure jurisdictional and venue defects by

transferring a suit under the federal transfer statutes, 28 U.S.C. §§ 1406(a) and

1631, when it is in the interests of justice. 15 Although both § 1406(a) and § 1631


      14
        (...continued)
Trujillo’s claims against the Virginia defendants.
      15
           Section 1406(a) reads:

      The district court of a district in which is filed a case laying venue in
      the wrong division or district shall dismiss, or if it be in the interest of
      justice, transfer such case to any district or division in which it could
      have been brought.

28 U.S.C. § 1406(a). Prior to the enactment of § 1631 in October 1982, the
Supreme Court, in Goldlaw r, Inc. v. Heiman, 

(1962), expressly
included the lack of personal jurisdiction as one of the procedural defects that can
be remedied by a § 1406 transfer. 

      Section 1631 reads in relevant part:

      W henever a civil action is filed in a court . . . or an appeal . . . is
      noticed for or filed with such a court and that court finds that there is
      a want of jurisdiction, the court shall, if it is in the interest of justice,
      transfer such action or appeal to any other such court in which the
      action or appeal could have been brought at the time it was filed or
      noticed, and the action or appeal shall proceed as if it had been filed in
      or noticed for the court to which it is transferred on the date upon which
      it w as actually filed in or noticed for the court from which it is
      transferred.

28 U.S.C. § 1631. W e have held that § 1631 applies in cases where either subject
matter jurisdiction or personal jurisdiction is lacking. See, e.g., Ross v. Colo.
Outw ard Bound Sch., Inc., 

, 1527 (10th Cir. 1987).

      Based on the mandatory language of these sections, we have determined
                                                                   (continued...)

                                         - 21 -
contain the word “shall,” we have interpreted the phrase “if it is in the interest of

justice” to grant the district court discretion in making a decision to transfer an

action or instead to dismiss the action without prejudice. See United States v.

Botefuhr, 

, 1274 n.8 (10th Cir. 2002). W e therefore review the

district court’s dismissal without prejudice of M r. Trujillo’s claims against the

Virginia defendants for lack of personal jurisdiction for an abuse of discretion.

See Cimon v. Gaffney, 

, 6 (1st Cir. 2005); Paul v. I.N.S., 

,

46-47 (2d Cir. 2003); Taylor v. Social Sec. Admin., 

, 233 (9th Cir.

1988); Hill v. United States A ir Force, 

, 1070 (D.C. Cir. 1986).

      W hile the court noted that it had discretion under § 1406(a) to transfer or

dismiss M r. Trujillo’s claims against the Virginia defendants for lack of venue,

we have directed that, after the enactment of § 1631, where the court determines

that it lacks jurisdiction and the interests of justice require transfer rather than

dismissal, “[t]he correct course . . . [is] to transfer the action pursuant to

[§ 1631].” 

. There is no indication that the district court

actually evaluated the possibility of transferring M r. Trujillo’s claims under

§ 1631, and it provided no reasons for dismissing rather than transferring pursuant

to § 1406(a). W here, as here, “[a] district court . . . does not exercise its

discretion, or makes a decision without providing reasons, [it] abuses that

      15
         (...continued)
that the plaintiff need not first file a motion to transfer. See Haugh v. Booker,

, 1150 n. 4 (10th Cir. 2000).

                                          - 22 -
discretion.” A RW Exploration Corp. v. Aguirre, 

, 1459 (10th Cir.

1995). Accordingly, we remand the issue to the district court for a determination

of whether M r. Trujillo’s claims against the Virginia defendants should be

transferred rather than dismissed without prejudice pursuant to the federal transfer

statutes. 16

II. Claims against the New M exico defendants

       Remaining, then, are M r. Trujillo’s claims for monetary and injunctive

relief against the New M exico defendants in their official and personal capacities.

Although the district court did not address the issue of sovereign immunity,

§ 1915 provides that “the court shall dismiss the case at any time if the court

determines that . . . the action or appeal . . . seeks monetary relief against a

defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(b)(iii)

(emphasis added). W e therefore address this issue before turning to the merits of

M r. Trujillo’s claims against the N ew M exico defendants.

       A.      Sovereign immunity




       16
          W e note that factors warranting transfer rather than dismissal, at least
under § 1631, include finding that the new action would be time barred, see, e.g.,

; that the claims are likely to have merit, see, e.g. id.; and
that the original action was filed in good faith rather than filed after “plaintiff
either realized or should have realized that the forum in which he or she filed was
improper,” Trierweiler v. Croxton & Trench Holding Corp., 

, 1544
(10th Cir. 1996). The district court will thus need to consider these factors on
remand.

                                         - 23 -
      In addition to seeking official capacity equitable relief, M r. Trujillo also

requests that “NM DC officials be ordered to compensate plaintiff $100 a day for

every day he was held in segregation illegally without due process.” “A claim for

retroactive monetary reimbursement asserted against state officials,” such as the

New M exico defendants, “in their official capacities constitutes a suit for

monetary damages against the state” and is barred by sovereign immunity. Johns

v. Stewart, 

, 1553-54 (10th Cir. 1995); see also Edelman v. Jordan,

, 663 (1974).

      Congress may abrogate the states’ sovereign immunity through a legitimate

exercise of its Section 5 power to enforce the Fourteenth Amendment. See M CI

Telecomm. Corp. v. Pub. Serv. Comm’n, 

, 935 (10th Cir. 2000).

However, the Supreme Court has held that § 1983 does not abrogate state

sovereign immunity. Will v. M ich. Dep’t of State Police, 

, 71 (1989).

Furthermore, we hold that neither Virginia nor New M exico waived its sovereign

immunity simply by adopting the ICC. See 

. As the D.C.

Circuit noted in Ali, the only conceivable waiver language in the ICC is a

provision that suggests that the compact creates rights enforceable by individual

inmates: “The fact of confinement in a receiving state shall not deprive any

inmate so confined of any legal rights w hich said inmate w ould have had if

confined in an appropriate institution of the sending state.” N.M . Stat. § 31-5-17,

art. 4(E); Va. Code Ann. § 53.1-216, art. IV(e); see also 

. The

                                         - 24 -
compact, however, says nothing about how such rights— assuming they

exist— may be enforced. See N.M . Stat. § 31-5-17, art. 4(E); Va. Code Ann.

§ 53.1-216, art. IV(e); see also 

. A “reasonable construction”

would “suggest that Virginia intended inmates to vindicate any rights through the

traditional methods of either prospective injunctive relief . . . or damage suits

against [defendants] in their personal capacities, neither of which requires waiver

of sovereign immunity.” 

(citations, quotation omitted); see

also Alden v. M aine, 

, 732 (1999) (distinguishing between the

existence of a legal right under federal law and the “implementation of the law in

a manner consistent with the constitutional sovereignty of the States”).

         W e therefore conclude that sovereign immunity bars M r. Trujillo’s claims

against the New M exico defendants to the extent that M r. Trujillo seeks damages

from these defendants in their official capacities. Accordingly, we affirm the

district court’s dismissal of these claims w ith prejudice pursuant to § 1915 on this

basis.

         B.    M erits of M r. Trujillo’s remaining claims against the New
               M exico defendants

         Remaining, then, are M r. Trujillo’s claims against the New M exico

defendants in their official capacities for injunctive relief only, and his claims

against the New M exico defendants in their personal capacities for money

damages. Liberally construing M r. Trujillo’s pro se complaint, Price v. Philpot,



                                          - 25 -


, 1162 (10th Cir. 2005), we read it to allege against these remaining

defendants 1) a Fourteenth Amendment due process and equal protection claim; 2)

a denial of the constitutional right of access to the courts claim; and 3) an Eighth

Amendment nutritionally inadequate diet claim. The district court determined

that no relief could be granted on any of these claims and dismissed them with

prejudice pursuant to § 1915(e)(2) and Fed. R. Civ. P. 12(b)(6).

      A district court may dismiss under § 1915 for failure to state a claim if “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, 

, 1110 (10th Cir. 1991) (quotations omitted). “In

determining whether dismissal is proper, we must accept the allegations of the

complaint as true and we must construe those allegations, and any reasonable

inferences that might be drawn from them, in the light most favorable to the

plaintiff.” 

. Ultimately, we affirm in part, reverse in

part, and remand.

             1.     E ighth A mendment and Fourteenth Am endment claims
                    arising from M r. Trujillo’s classification into segregation

      M r. Trujillo claims that his classification violated his Eighth Amendment

right to be free from cruel and unusual punishment and his Fourteenth

Amendment right to procedural due process. The district court construed M r.

Trujillo’s complaint as alleging “improper classification” and held that it failed to



                                         - 26 -
state a claim for these constitutional violations because “[M r. Trujillo] has no due

process right to a particular classification.”

      The district court is correct that “[c]lassification of [a] plaintiff into . . .

segregation does not involve deprivation of a liberty interest independently

protected by the Due Process Clause.” Bailey v. Shillinger, 

, 652

(10th Cir. 1987) (citing Hewitt v. Helms, 

, 468 (1983)). But prison

conditions that “impose[] atypical and significant hardship on the inmate in

relation to the ordinary incidents of prison life” may create a liberty interest

protected by the Due Process Clause. Sandin v. Conner, 

, 484

(1995); see also Talley v. Hesse, 

, 1413 (10th Cir. 1996).

      Thus, we have held that a district court errs in sua sponte dismissing a

prisoner’s due process claim under § 1915 if it does not have sufficient evidence

before it to “fully address both the duration and degree of the plaintiff’s

restrictions as compared with other inmates.” See 

;

(declaring it inappropriate to dismiss a prisoner’s

due process claim without the benefit of evidence showing that the defendant’s

“segregation mirrors those conditions imposed upon [other] inmates”); cf. 

(“Based on a comparison between inmates inside and outside

disciplinary segregation, the State’s actions in placing [the prisoner] there for 30

days did not work a major disruption in his environment.”).




                                          - 27 -
      Here, the district court determined that M r. Trujillo failed to state a due

process claim despite the lack of any evidence addressing whether M r. Trujillo’s

confinement was atypical and significant when compared to conditions imposed

on other prisoners. M r. Trujillo’s complaint specifically alleges that he spent

over 750 days in segregation and that other inmates remain in segregation for the

most serious offenses for only 180 days. W here, as here, the prisoner is subjected

to a lengthy period of segregation, the duration of that confinement may itself be

atypical and significant. See 

(directing the district court

on remand to determine whether the 75-day duration of plaintiff’s confinement in

segregation is itself atypical and significant); 

(requiring

the district court to have before it evidence that “fully address[es] both the

duration and degree of plaintiff’s restrictions as compared w ith other inmates”

before it may sua sponte dismiss a prisoner’s due process claim) (emphasis

added); see also Colon v. Howard, 

, 231-32 (2d Cir. 2000)

(recognizing that “the duration of [segregation] is a distinct factor bearing on

atypicality and must be carefully considered” and concluding that 305 days in

such confinement is atypical and significant).




                                         - 28 -
      W e therefore reverse the dismissal of M r. Trujillo’s due process claim

against the New M exico defendants and remand to allow the district court to

conduct the required evidentiary analysis. 17

             2.     Denial of constitutional right of access to the courts

      M r. Trujillo’s “constitutional right of access to the courts is clearly

established.” See Treff v. Galetka, 

, 194 (10th Cir. 1996). To state a

claim for denial of such a right, M r. Trujillo “must show that any denial or delay

of access to the court prejudiced him in pursuing litigation.” Id.; see also Lewis

v. Casey, 

, 351 (1996) (requiring that “the alleged shortcomings in

the library” actually hinder a prisoner’s “efforts to pursue a legal claim”).




      17
          To the extent that M r. Trujillo also raises an Eighth Amendment claim
challenging the conditions of his confinement in segregation, we conclude that “it
is ‘patently obvious’ that [he] could not prevail on the facts alleged, and allowing
him an opportunity to amend his complaint would be futile.” 

(quotations omitted). M r. Trujillo alleges that, as a result of his
classification, he has only limited access to education, employment, religious
programming, housing assignment, recreation time and equipment, the telephone,
and the commissary. In addition to the fact that M r. Trujillo has not alleged that
the responsible prison officials acted w ith “deliberate indifference,” these
allegations do not demonstrate a deprivation “of the minimal measure of life’s
necessities,” as required to state a claim upon which relief may be granted
pursuant to the Eighth Amendment. Barney v. Pulsipher, 

, 1310
(10th Cir. 1998).
       To the extent that M r. Trujillo also alleges that the New M exico prison
officials violated the ICC, that claim does not constitute a violation of federal law
and therefore is not actionable under § 1983. See Ghana v. Pearce, 

, 1208 (9th Cir. 1998); Stewart v. M cM anus, 

, 142 (8th Cir.
1991).

                                         - 29 -
      In the context of a plaintiff serving time in an out-of-state prison system

pursuant to the ICC, “the general rule imposes upon the sending state authorities

the responsibility for ensuring their prisoners incarcerated in sister state facilities

are afforded access to state courts.” Clayton v. Tansy, 

, 982 (10th

Cir. 1993). Here, New M exico as the sending state bears the “burden of

providing the required state legal materials.” 

court construed M r. Trujillo’s complaint as alleging only

“delays in obtaining certain New M exico legal materials from New M exico” and

dismissed his denial of access to the courts claim because “the Constitution does

not ensure the access requested by Plaintiff” and because “Plaintiff does not

allege any active interference with his preparation and filing of papers.” See

(describing that a prisoner does not have “an abstract,

freestanding right to a law library or legal assistance” and therefore “cannot

establish relevant actual injury simply by establishing that his prison’s law library

or legal assistance program is subpar in some theoretical sense”). The district

court misconstrued M r. Trujillo’s complaint and therefore erred in concluding that

he had not stated a cognizable § 1983 claim for denial of access to the courts

against the N ew M exico defendants.

      M r. Trujillo actually alleges that the New M exico defendants violated his

right of access to the courts in two ways. First, as the district court noted, he

complains that it takes an average of eighteen days for him to receive requested

                                          - 30 -
material. He also alleges, however, that he is expected to know exactly what he

needs w ithout any knowledge of what materials might be available to him. This

second allegation— an “exact cite” system— may state a viable claim of denial of

access to the courts. See 

(remanding to the trial court

with instruction to determine whether the exact cite paging system resulted in a

denial of the right of access to the courts).

      Furthermore, M r. Trujillo alleged a “relevant actual injury.” See 

. Specifically, he claims that he suffered actual injury because the

defendants’ actions prevented him from filing a state habeas corpus petition and

from challenging the N M CD’s ex post facto changing of his sentence. See 

(“The tools [the guarantee of access to the courts] requires to be provided are

those that the inmates need in order to attack their sentences, directly or

collaterally, and in order to challenge the conditions of their confinement.”).

      In M cBride v. Deer, 

(10th Cir. 2001), we held that

conclusory allegations were insufficient because, for example, the plaintiff

      did not describe sufficiently the legal materials he was seeking, see
      Petrick v. M aynard, 

, 995 (10th Cir. 1993) (noting that “a
      prisoner must do more than make a mere conclusory allegation of need
      for unspecified or unlimited materials”); he did not clarify that the
      [prison] library and its resources were inadequate for his needs, see 

the library and its resources w ere “inadequate” for the
      plaintiff’s “legitimate queries”); and he did not explain that his legal
      claim was nonfrivolous. See Penrod v. Zavaras, 

, 1403
      (10th Cir. 1996) (holding that the “[p]laintiff failed to allege that the
      library restrictions placed on unassigned prisoners hindered his effort
      to pursue a nonfrivolous legal claim”).

                                         - 31 -


Unlike the plaintiff in M cBride, however, M r. Trujillo specifically

alleged that he was seeking New M exico legal materials relevant to challenge his

sentence collaterally and clarified that New M exico’s exact cite system left him

with inadequate materials to pursue such litigation.

      Admittedly, he did not specifically explain that his legal claim was

nonfrivolous— a factor that supported the court’s dismissal in M 

, 1290 (failure to state a claim), and 

(summary

judgment). But a pro se plaintiff, like M r. Trujillo, “w hose factual allegations are

close to stating a claim but are missing some important element that may not have

occurred to him, should be allowed to amend his complaint.” 

. W e therefore conclude that the district court improperly dismissed M r.

Trujillo’s § 1983 denial of access to courts claim against the New M exico

defendants.

              3.    Eighth A mendm ent claim for nutritionally inadequate diet

      Prison officials must ensure “inmates receive the basic necessities of

[nutritionally] adequate food . . . .” 

(citing Farmer v.

Brennan, 

, 832-33 (1994)); see also Thompson v. Gibson, 

, 1222 (10th Cir. 2002). “A substantial deprivation of food may be

sufficiently serious to state a conditions of confinement claim under the Eighth

Amendment,” 

, where the prison officials




                                         - 32 -
demonstrated “deliberate indifference,” Estelle v. Gamble, 

, 105

(1976). See also Helling v. M cK inney, 

, 35 (1993).

      M r. Trujillo “may have a valid § 1983 claim; however, if he does it should

be pursued against the proper defendant in a court of proper [jurisdiction and]

venue.” 

. In order for liability to arise under § 1983, a

defendant’s direct personal responsibility for the claimed deprivation of a

constitutional right must be established. See Olson v. Stotts, 

, 1477

(10th Cir. 1993) (affirming district court’s dismissal where “plaintiff failed to

allege personal participation of the defendants”); Coleman v. Turpen, 

, 1346 n. 7 (10th Cir. 1982) (noting defendants cannot be liable under § 1983

unless personally involved in the deprivation). Nothing in M r. Trujillo’s

complaint indicates any personal participation by the New M exico defendants in

determining the amount of food M r. Trujillo received at the Virginia prison.

      To the contrary, in his complaint, M r. Trujillo indicates that in response to

his request to review his classification, VDOC informed him that “New M exico

has authorized the adaptation of all policies and procedures adopted by the VDO C

for those inmates housed in Virginia,” except matters relating to classification.

Furthermore, even if the Virginia defendants acted as agents for the NM DC, see

N.M . Stat. § 31-5-17, art. 4(A) (“[T]he receiving state [is] to act . . . solely as

agent for the sending state.”); Va. Code A nn. § 53.1-216, art. IV(a) (same),

recovery under § 1983 against the New M exico defendants cannot be imposed

                                          - 33 -
vicariously on a theory of respondeat superior. See M itchell v. M aynard, 

, 1441 (10th Cir. 1996) (noting that there is no respondeat superior liability

under § 1983).

       W e therefore affirm the district court’s dismissal of this claim against the

New M exico defendants.

             4.     Equal Protection claim

       M r. Trujillo also alleges that he has been denied equal protection because

he has been treated differently than all other prisoners. Specifically, he claims

that NM CD informed W RSP not to allow M r. Trujillo to work because he was a

New M exico prisoner. 18 To the extent that M r. Trujillo is attempting to allege an

equal protection violation against the New M exico defendants based on this

instruction from NM CD, we will allow him a chance on remand to amend his

allegations, which are currently insufficient to state a cognizable equal protection

claim. 19

       “Equal protection is essentially a direction that all persons sim ilarly

situated should be treated alike.” Grace United M ethodist Church v. City Of


       18
         To the extent that M r. Trujillo also alleges that the New M exico prison
officials violated the ICC by instructing W RSP not to employ him, that claim
does not constitute a violation of federal law and therefore is not actionable under
§ 1983.
       19
          To the extent that M r. Trujillo alleges the Virginia officials treated him
differently than other out-of-state inmates transferred to Virginia or than other
Virginia inmates generally by prohibiting him from working, we again note that
the district court lacked jurisdiction over the V irginia defendants.

                                         - 34 -
Cheyenne, 

, 659 (10th Cir. 2006) (emphasis added; quotation

omitted). Thus, on remand, M r. Trujillo must state exactly to which group he

believes he is similarly situated. For example, he must state whether the New

M exico defendants, by instructing W RSP not to allow M r. Trujillo to work,

treated him differently than 1) other New M exico inmates transferred to out-of-

state prisons or 2) all New M exico inmates, such that it is the treatment of the

class of transferred inmates that cannot be justified.

      Either way, because M r. Trujillo “does not claim that the defendants treated

him differently because of any suspect classification,” to prevail on his equal

protection claim he would have to prove that “the distinction between himself and

other inmates was not reasonably related to some legitimate penological purpose.”

Templeman v. Gunter, 

, 371 (10th Cir. 1994). Although we note that

this is a heavy burden, we believe that M r. Trujillo deserves an opportunity to

amend his complaint to allege facts sufficient to “overcome a presumption of

government rationality.” Brow n v. Zavaras, 

, 971 (10th Cir. 1995).

                                  C ON CLU SIO N

      W ith regard to the Virginia defendants, we A FFIRM the district court’s

conclusion that New M exico lacks personal jurisdiction over the Virginia

defendants and REM AND to the district court for a determination of w hether M r.

Trujillo’s claims against the Virginia defendants should be transferred rather than

dismissed without prejudice pursuant to the federal transfer statutes. W ith regard

                                         - 35 -
to the New M exico defendants, we AFFIRM the district court’s dismissal with

prejudice of all M r. Trujillo’s money damage claims against the New M exico

defendants in their official capacities; REVERSE and REM AND the district

court’s dismissal of M r. Trujillo’s remaining Fourteenth Amendment due process

and equal protection claims and denial of access to the courts claim; and AFFIRM

the district court’s dismissal with prejudice of M r. Trujillo’s Eighth Amendment

claim for nutritionally inadequate diet. W e GRANT M r. Trujillo’s motion to

proceed on appeal in form a pauperis, but we remind him that he is obligated to

make partial payments until the entire fee has been paid.




                                       - 36 -