James Kent Porter v. David Walters, Governor Larry A. Fields, 39 F.3d 1192, 10th Cir. (1994)

39 F.
3d 1192
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
James Kent PORTER, Plaintiff-Appellant,

v.
David WALTERS, Governor; Larry A. Fields, DefendantsAppellees.
No. 94-6252.
United States Court of Appeals, Tenth Circuit.

Nov. 1, 1994.
Before TACHA, BRORBY and EBEL, Circuit Judges.

ORDER AND JUDGMENT*
BRORBY, Circuit Judge.
After examining the briefs and the appellate record, this three-judge panel has
determined unanimously that oral argument would not be of material assistance
in the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9.
The cause is therefore ordered submitted without oral argument.
Mr. Porter, a state inmate and pro se litigant, commenced this action requesting
a declaration that the Oklahoma Prison Overcrowding Emergency Powers Act
(Okla.Stat. tit. 57, Secs. 570-576 (West 1991)) is unconstitutional. The district
court concluded Mr. Porter's complaint was frivolous and dismissed it pursuant
to 28 U.S.C. Sec. 1915(d).
Mr. Porter appeals this decision. We are not persuaded by Mr. Porter's brief.
As we cannot improve upon the cogent reasoning utilized in the district court,
we AFFIRM the judgment of the district court for substantially the same
reasons set forth in the magistrate judge's Report and Recommendation dated
June 20, 1994, a copy thereof being attached. The mandate shall issue
forthwith.
ATTACHMENT
5IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF OKLAHOMA
6James Porter, Plaintiff,
7vs.
8Governor Walters, ex rel. State of Oklahoma, et al., Defendants.
9CIV-94-822-C.
June 20, 1994.
10
REPORT AND RECOMMENDATION
11
Plaintiff, an Oklahoma inmate, has been permitted to file in forma pauperis this
civil rights action pursuant to 42 U.S.C. Sec. 1983. The form Complaint seeks
equitable relief in the form of a declaratory judgment, naming both Oklahoma
Governor David Walters and Oklahoma Department of Corrections Director
Larry Fields as Defendants. The matter has been referred to the undersigned for
initial proceedings consistent with 28 U.S.C. Sec. 636(b)(1)(B). For the reasons
stated herein, it is recommended that the Complaint be dismissed upon filing
pursuant to 28 U.S.C. Sec. 1915(d).
12
The in forma pauperis statute, 28 U.S.C. Sec. 1915(d), contemplates

preliminary consideration prior to invoking the process of the court to
determine whether the complaint is frivolous, improper, or obviously without
merit. Phillips v. Carey, 638 F.2d 207, 209 (10th Cir.), cert. denied, 450 U.S.
985 (1981). A complaint is frivolous if it lacks an arguable basis in law or in
fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim may be dismissed
as factually frivolous if the facts alleged are "clearly baseless," including
allegations that are "fanciful," "fantastic," or "delusional." Id. at 325, 327, 328.
"[A] finding of factual frivolousness is appropriate when the facts alleged rise
to the level of the irrational or the wholly incredible, whether or not there are
judicially noticeable facts available to contradict them." Denton v. Hernandez,
112 S.Ct. 1728, 1733 (1992). A complaint is legally frivolous if it is based on

an "indisputably meritless legal theory" such as an "infringement of a legal
interest which clearly does not exist." Neitzke v. Williams, 490 U.S. at 327.
13
Plaintiff's claim for declaratory relief is based on a meritless legal theory, and
Plaintiff cannot make a rational legal argument in support of his cause of
action. The Complaint purports to state a claim of denial of due process and
equal protection as well as a violation of the Eighth Amendment's prohibition
of cruel and unusual punishment. Construing the pro se form Complaint
broadly, Plaintiff alleges that the exercise of prosecutorial discretion renders the
Oklahoma Prison Overcrowding Emergency Powers Act, Okla.Stat., tit 57,
Secs. 570-576 (West 1991) (the "Act") unconstitutional because prosecutors are
"selectively picking" those offenders who will or will not benefit from the Act.
14
Plaintiff's form Complaint and supporting brief are fraught with conjecture and
speculation but are bereft of facts showing Plaintiff has encountered a "distinct
and palpable" injury that would provide sufficient standing for this lawsuit.
Warth v. Seldin, 422 U.S. 490, 501 (1975). See City of Los Angeles v. Lyons,
461 U.S. 95, 101-102 (1983) (injury must be real, not abstract, to give standing
to sue). See also Cotner v. Hopkins, 795 F.2d 900, 902 (10th Cir.1986) (in civil
rights action, plaintiff must assert his or her own constitutional rights). Plaintiff
alleges that some inmates are being denied the opportunity to earn emergency
time, or "CAP," credits to hasten their release from prison and that in general
some inmates are being subjected to overcrowded prison conditions for a
longer period of time because they are ineligible to receive "CAP" credits.
Plaintiff has failed to allege violations of his personal constitutional rights.
Although it is conceivable that Plaintiff could amend his Complaint to allege
that he is denied the benefit of receiving "CAP" credits, the following findings
clearly show that Plaintiff's cause of action is frivolous and, therefore, subject
to dismissal under Sec. 1915(d). Thus, the issue of whether Plaintiff is entitled
to leave to amend the Complaint need not be reached.
15
The Equal Protection Clause directs that "all persons similarly situated should
be treated alike." City of Cleburne v. Cleburne Living Center, Inc., 473 U.S.
432, 439 (1985). However, state legislation is "presumed to be valid." Id. at
440. To withstand an equal protection or due process challenge, a legislative
classification that operates disparately among individuals and that does not
impact upon a suspect class or a fundamental right need only be rationally
related to a legitimate governmental interest. Chapman v. United States, 500
U.S. 453, 111 S.Ct. 1919, 1927 (1991); United States v. Austin, 981 F.2d 1163,
1165 (10th Cir.1992), cert. denied, 113 S.Ct. 1859 (1993). Individuals
convicted of a crime do not constitute a suspect class. United States v. Smith,
818 F.2d 687, 691 (9th Cir.1987); Baer v. City of Wauwatosa, 716 F.2d 1117,
1125-1126 (7th Cir.1983). Moreover, there is no right to release from prison
before the expiration of a valid sentence. Greenholtz v. Inmates of Nebraska
Penal and Correctional Complex, 442 U.S. 1, 7 (1979). Thus, only a rational
basis is required for a classification pursuant to a state statute that affects the
sentences of convicted felons in a disparate manner.
16
The Act is designed to provide the executive branch with an administrative

option to reduce overcrowding in the Oklahoma prison system. It provides that
the Department of Corrections shall request the Governor to declare a state of
emergency in state prisons whenever the population of the prison system
exceeds 95% of capacity for 30 consecutive days. The Act further sets out that a
prison overcrowding state of emergency shall be in effect unless the Governor
finds otherwise within 15 days of the request. On the emergency date, the
Director of the Oklahoma Department of Corrections grants 60 days of
emergency time credit to any person confined in the prison system who is: (1)
classified as medium security or any lower security level; (2) incarcerated for a
nonviolent offense; and (3) not incarcerated for a second or subsequent offense
under the provisions of Okla.Stat., tit. 21, Secs. 51 and 52, which provide for
enhanced punishment for habitual offenders. Okla.Stat. tit. 57, Sec. 573 (West
1991).
17
Plaintiff does not allege that the classification within the Act itself, e.g., on its
face, operates to deprive him of constitutional guarantees. Even if he did allege
an equal protection deprivation because he is being denied emergency time
credits under the statute's classification while other similarly situated inmates
receive the credits, the claim is without legal merit. The Act reflects the
rational determination of the Oklahoma legislature that inmates who are
classified higher than medium security level, violent offenders, or habitual
offenders should remain incarcerated for a longer period of time than those
inmates who qualify for emergency time credits. This classification rationally
serves the state's interest in preserving the security of its citizens. As a matter of
law, the Act does not violate the Equal Protection Clause.
18
Plaintiff, however, takes a "quantum leap" in logic to argue that the Act violates
equal protection and due process guarantees because prosecutors have broad
discretion in charging individuals with offenses and in plea-bargaining with
defendants. The hypothetical argument is that prosecutors make charging
decisions that "selectively" deny certain inmates the opportunity to earn
emergency time credits, which decisions thereby "void" or "circumvent" the
state's interest in its classification system set forth in the Act.
19
The law is clearly established that a prosecutor's "decision whether or not to

prosecute, and what charge to file or bring before a grand jury, generally rests
entirely in his discretion." Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978).
To be sure, the exercise of prosecutorial discretion is subject to constitutional
constraints under the Equal Protection Clause: "the decision to prosecute may
not be 'deliberately based upon an unjustifiable standard such as race, religion,
or other arbitrary classification.' " Wayte v. United States, 470 U.S. 598, 608
(1985) (citations omitted). This standard requires that an accused "show both
that the [alleged selective] enforcement [decision] had a discriminatory effect
and that it was motivated by a discriminatory purpose." Id. See Snowden v.
Hughes, 321 U.S. 1, 8 (1974) (to prevail on equal protection claim that facially
neutral statute is being applied unequally, "intentional or purposeful
discrimination" must be shown). In the absence of evidence the prosecutor
deliberately chose to prosecute because of the individual's religion or some
other improper factor, the prosecutor's "conscious exercise of some selectivity
in enforcement is not in itself a federal constitutional violation." Oyler v. Boles,
368 U.S. 448, 456 (1962).
20
Plaintiff does not claim that any discriminatory purpose motivated prosecutors
in charging him with an offense. Plaintiff's claim is that the benefits of the Act
may not be available to some inmates because they are convicted as habitual
offenders or violent offenders or are classified higher than medium security
because the prosecutor decided to charge them with an offense that took them
out of the boundaries of the Act. The conjectural connection between
prosecutorial discretion and the classification system in the Act is just too
attenuated to present a viable legal theory under the Constitution. The Equal
Protection Clause does not guarantee that state laws have an identical effect or
impact on all citizens. In the same vein, the Equal Protection Clause does not
require that prosecutors take into account, when deciding whether or not to
prosecute or what charge to prosecute, the manner in which the offender's
subsequent sentence is executed under valid legislative classifications. Even
assuming a prosecutor is influenced in a charging decision by the punishment
that may be assessed upon conviction, "this fact, standing alone, does not give
rise to a violation of the Equal Protection or Due Process Clause." United States
v. Batchelder, 442 U.S. 114, 125 (1979).
21
Because Plaintiff's equal protection/due process claim is based on an

"indisputably meritless legal theory," it is frivolous and dismissable under Sec.
1915(d). Additionally, Plaintiff has not made a rational argument based in law
or fact with his vague claim that he "is being confined under conditions in
violation of the Eighth Amendment." Wilson v. Seiter, 111 S.Ct. 2321, 2327
(1991) ("Nothing so amorphous as 'overall conditions' can rise to the level of
cruel and unusual punishment when no specific deprivation of a single human

need exists").
RECOMMENDATION
22
In accordance with the foregoing, it is the recommendation of the undersigned

that the Plaintiff's Complaint be dismissed pursuant to 28 U.S.C. Sec. 1915(d).
The parties are advised of their right to object to this Report and
Recommendation by July 5, 1994, in accordance with 28 U.S.C. Sec. 636 and
Local Court Rule 39. Plaintiff is further advised that failure to make timely
objection to this Report and Recommendation waives his right to appellate
review of both factual and legal issues contained herein. Moore v. United States
of America, 950 F.2d 656 (10th Cir.1991).
23
This Report and Recommendation disposes of all issues referred to the

undersigned Magistrate Judge in the captioned matter.
/s/ Gary M. Purcell

24
GARY M. PURCELL
United States Magistrate Judge
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 the court's General
Order filed November 29, 1993. 151 F.R.D. 470

James Kent Porter v. David Walters, Governor Larry A. Fields, 39 F.3d 1192, 10th Cir. (1994)

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39 F.

James Kent PORTER, Plaintiff-Appellant,

United States Court of Appeals, Tenth Circuit.

Before TACHA, BRORBY and EBEL, Circuit Judges.

The in forma pauperis statute, 28 U.S.C. Sec. 1915(d), contemplates

112 S.Ct. 1728, 1733 (1992). A complaint is legally frivolous if it is based on

The Act is designed to provide the executive branch with an administrative

The law is clearly established that a prosecutor's "decision whether or not to

Because Plaintiff's equal protection/due process claim is based on an

cruel and unusual punishment when no specific deprivation of a single human

In accordance with the foregoing, it is the recommendation of the undersigned

This Report and Recommendation disposes of all issues referred to the

/s/ Gary M. Purcell

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