                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                               FEB 20 2004
                                  TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                   Clerk


 PATRICK ALONZO HINES,

               Plaintiff-Appellant,                          No. 03-6298
          v.                                              (W.D. Oklahoma)
 TERRY JENKS, J.D. DANIELS,                          (D.C. No. 03-CV-965-HE)
 SUSAN BUSSEY, STEPHANIE
 CHAPPELLE, CURRIE BALLARD,
 PAT MORGAN, and MARC
 DREYER, Dr.,

               Defendant-Appellant.




                            ORDER AND JUDGMENT *


Before KELLY, HENRY, and TYMKOVICH, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1. The case is



      *
        This order and judgment is not binding precedent, except under the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 10 TH C IR . R. 36.3.
therefore ordered submitted without oral argument.

      Patrick Alonzo Hines, a state prisoner appearing pro se, brought suit

pursuant to 42 U.S.C. § 1983, alleging that the defendants violated his due

process and equal protection rights in denying him parole. The district court

dismissed Mr. Hines’s complaint for failure to state a claim on which relief may

be granted. See 28 U.S.C. § 1915(e)(2)(B). Mr. Hines now appeals. We exercise

jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.


                                I. BACKGROUND

      Since his conviction for first-degree rape, Mr. Hines has been denied parole

on three occasions, most recently in September 2002. The defendants were all

members of the Oklahoma Pardon and Parole Board at the time of Mr. Hines’s

last parole hearing. In his complaint, Mr. Hines alleges that: 1) the defendants

violated his due process and equal protection rights by denying him parole based

on the classification of his crime rather than his individual merit; and 2) the

defendants violated his due process and equal protection rights by applying

Oklahoma’s 1989 House Joint Resolution 1004 in a discriminatory manner.

      The district court referred the matter to a magistrate judge, who issued a

report and recommendation concluding that the complaint should be dismissed for

failure to state a claim on which relief may be granted. Over Mr. Hines’s

objections, the district court adopted the magistrate’s report and recommendation.

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The court held that: 1) Mr. Hines failed to state a claim for money damages

against the defendants, as they are immune from suit in both their official or

individual capacities; 2) Mr. Hines failed to establish a due process violation

because he had no liberty interest in an early release; and 3) Mr. Hines failed to

establish an equal protection violation because he has not alleged any facts to

support his claim that similarly situated individuals receive preferential treatment

in the parole process.


                                 II. DISCUSSION

      We review de novo a district court’s dismissal for failure to state a claim

under 28 U.S.C. § 1915(e)(2)(B). Since Mr. Hines is proceeding pro se, we

liberally construe his filings. See Haines v. Kerner, 404 U.S. 519, 520 (1972)

(per curiam).

      On appeal, Mr. Hines challenges only the district court’s rulings as to his

claims for declaratory and injunctive relief.

A.    Due Process

      As to Mr. Hines’s due process claim, we agree that “Oklahoma’s statutory

parole scheme is discretionary and therefore, does not create a liberty interest in

early release.” Rec. doc. 3, at 5 (Magistrate Judge’s Report & Recommendation,

filed July 29, 2003). Mr. Hines argues that the Oklahoma Truth in Sentencing

Provision of O KLA . S TAT . tit. 22, § 1514 (1994), which became effective after the

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cases relied upon by the district court were decided, altered the law so as to create

a liberty interest in early release. However, in Shabazz v. Keating, 977 P.2d 1089

(Okla. 1999), decided after the effective date of O KLA . S TAT . tit. 22, § 1514, the

Oklahoma Supreme Court reiterated that

      there is no protectible liberty interest in an Oklahoma parole.
      According to the teachings of Phillips v. Williams, [608 P.2d 1131,
      1135 (Okla. 1980)], [Oklahoma’s] parole release procedure, which
      affords no more than an expectation (or hope) of parole, is not
      surrounded with due process protection. No due process strictures can
      be applied to test the permissible parameters of the parole process. This
      is so because the parole function neither leads to nor may ripen into a
      liberty interest.

Id. at 1093.

      Oklahoma’s House Joint Resolution 1004, H.R.J. Res. 1004, 42d Leg., 1st

Reg. Sess. (Okla. 1989), which established the Residential Sex Offender

Treatment Program, does not alter our analysis. As the district court observed,

House Joint Resolution 1004 “in no way mandates parole following completion of

a sexual offender treatment program.” Rec. doc. 3, at 6. Because he has failed to

establish a constitutionally protected liberty interest in his parole, Mr. Hines’s due

process claim cannot succeed.

B.    Equal Protection

      Mr. Hines’s equal protection claim also fails. Mr. Hines argues that

“similarly situated inmates have been treated differently and that there is no

rational relationship between the dissimilar treatment and any legitimate penal

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interest.” Aplt’s Br. at 10. Specifically, he contends that individuals convicted of

“other violent crimes in the highest level of security category of the Department

of Corrections” are paroled while individuals convicted of first-degree rape are

not, id. at 9, and that convicted child molesters who complete the Residential Sex

Offender Treatment Program are routinely paroled while convicted rapists who

complete the same program are not.

       Sex offenders are not members of a suspect class, see Lustgarden v.

Gunter, 966 F.2d 552, 555 (10th Cir. 1992), nor is there a fundamental right at

stake in this case. See id. (noting that “[p]arole is a privilege; there is no

constitutional or inherent right to parole”). As such, Mr. Hines “must prove that

the distinction between himself and other inmates was not reasonably related to

some legitimate penological purpose.” Templeman v. Gunter, 16 F.3d 367, 371

(10th Cir. 1994). We have observed that the Department of Corrections may

“classify inmates differently because of slight differences in their histories, . . .

[or] because some still seem to present more risk of future misconduct than

others.” Id. Moreover, the denial of Mr. Hines’s parole bears a rational

relationship to the “legitimate state interest of monitoring the reintroduction into

society of sex offenders for purposes of public safety.” Lustgarden, 966 F.2d at

555.

       Finally, as the magistrate judge observed, “to the extent [Mr. Hines] claims


                                           -5-
he was unconstitutionally denied parole and he seeks release from state custody, a

petition for writ of habeas corpus is his sole remedy, after exhaustion of available

state remedies.” Rec. doc. 3, at 7-8 (citing, inter alia, 28 U.S.C. § 2254 (b)(1)(A)

and Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)).



                                III. CONCLUSION

      Accordingly, we conclude that Mr. Hines has failed to establish a violation

of his due process or equal protection rights. The district court’s dismissal of Mr.

Hines’s complaint is AFFIRMED.



                                       Entered for the Court,



                                       Robert H. Henry,
                                       Circuit Judge




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