56 F.3d 77NOTICE:  Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument,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.
Chester C. LYONS, Plaintiff--Appellant,v.STATE of Oklahoma, David Walters, and Larry A. Fields,Defendants--Appellees.
No. 95-6037.
United States Court of Appeals, Tenth Circuit.
May 25, 1995.

Before ANDERSON, BALDOCK, and BRORBY, Circuit Judges.


1
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 Fed.  R.App. P. 34(a);  10th Cir.  R. 34.1.9.  The cause is therefore ordered submitted without oral argument.


2
Chester C. Lyons, an Oklahoma state inmate proceeding pro se, filed a 42 U.S.C.1983 action, complaining that application of the Oklahoma Prison Overcrowding Emergency Powers Act (the "Act") violates his constitutional rights to equal protection, due process and freedom from cruel and unusual punishment because he is ineligible for time credits under the Act.  The district court dismissed the action for failure to state a claim pursuant to defendants' Fed.R.Civ.P. 12(b)(6) motion.  Lyons appeals, seeking reversal on the law, an evidentiary hearing on the facts, appointment of counsel, and permission to proceed in forma pauperis.  We grant Lyons permission to proceed in forma pauperis, and affirm.


3
We review a dismissal under Rule 12(b)(6) de novo.  St. Francis Regional Medical Center v. Blue Cross and Blue Shield of Kansas, 49 F.3d 1460, 1463 (10th Cir.1995).  We have recently upheld the Act's constitutionality against challenges identical to those argued by Lyons.  Shifrin v. Fields, 39 F.3d 1112 (10th Cir.1994).  Accordingly, we find no error in the district court's conclusion that Lyons' complaint failed to state a claim upon which relief can granted.


4
For substantially the same reasons set forth in the magistrate judge's report and recommendation which the district court adopted, we AFFIRM.  Lyons' requests for appointment of counsel and an evidentiary hearing are DENIED.  The mandate shall issue forthwith.


5
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1 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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.


