                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         APR 14 1999
                                  TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 BRIAN PACHECO,

          Plaintiff-Appellant,

               v.                                      No. 98-1104
                                                   (D.C. No. 97-D-2440)
 MIKE WARD, CARMELA KNIGHT,                              (D. Colo.)
 DIANE BAILS, MARGARET HEIL,
 ARISTEDES ZAVARAS,

          Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before ANDERSON, KELLY, and BRISCOE, 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 Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Therefore, the

case is ordered submitted without oral argument.

      Plaintiff Brian Pacheco, an inmate appearing pro se, appeals the district

court’s dismissal of his 42 U.S.C. § 1983 action as frivolous. We affirm.


      *
        This order and judgment is not binding precedent, except under the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.
        Pacheco brought a § 1983 action alleging defendants violated his due

process and equal protection rights by assigning him a sexual violence

classification of S-2, and that defendants were liable for defamation of character,

slander, and libel. The district court dismissed his due process and equal

protection claims as frivolous under 28 U.S.C. § 1915(e)(2)(B)(ii), and declined

to exercise supplemental jurisdiction over his state law claims under 28 U.S.C. §

1367.

        Dismissal of a complaint as frivolous is appropriate “if the plaintiff cannot

make a rational argument on the law and facts” in support of his claim, or if it is

“patently obvious” plaintiff could not prevail on the facts alleged and allowing an

opportunity to amend would be futile.           See Whitney v. New Mexico , 113 F.3d

1170, 1172-73 (10th Cir. 1997). “Plausible factual allegations are not frivolous

. . . even if they lack evidentiary support.”          Templeman v. Gunter , 16 F.3d 367,

368 (10th Cir. 1994). The court can dismiss the complaint only if the facts do not

support an arguable claim.      Id. We review for abuse of discretion the district

court’s dismissal of a complaint as frivolous,           McWilliams v. Colorado , 121 F.3d

573, 574-75 (10th Cir. 1997), and we liberally construe the pro se complaint,

Haines v. Kerner , 404 U.S. 519, 520-21 (1972).

        Pacheco asserts his classification has prevented his “progression through

the system,” and precludes him from completing his term at a halfway house. He


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seeks a lower classification, asserting his classification is based on purely false

information and violates his due process and equal protection rights. Pacheco

filed four grievances with the Colorado Department of Corrections. On August

29, 1997, the grievance officer denied the grievances, finding there were no facts

to support Pacheco’s claims. Pacheco has exhausted his administrative remedies

pursuant to 42 U.S.C. § 1997e.

                                       Due Process

       The United States Constitution does not entitle an inmate to any particular

degree of liberty in prison; thus, changes to an inmate’s prison classification do

not involve deprivations of liberty.    See Templeman , 16 F.3d at 369. Although a

state or a prison may create liberty interests that are protected by the Due Process

Clause, such interests “will be generally limited to freedom from restraint which,

while not exceeding the sentence in such an unexpected manner as to give rise to

protection by the Due Process Clause of its own force . . . nonetheless imposes

atypical and significant hardship on the inmate in relation to the ordinary

incidents of prison life.”   Sandin v. Conner , 515 U.S. 472, 484 (1995). We

previously have held Colorado prison regulations do not create a liberty interest in

an inmate’s prison placement classification.     See Templeman , 16 F.3d at 369.

Pacheco’s classification did not implicate the due process clause.




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                                  Equal Protection

      Classification decisions are discretionary with Department of Corrections

officials. Templeman , 16 F.3d 371. Officials must weigh various criteria and

other relevant information in making a judgment on the classification of an

individual inmate.   Id.

      The court concluded “Pacheco cannot state an arguable claim that there are

no relevant differences between himself and other similarly situated inmates that

reasonably might account for any different treatment.” Record Doc. 7 at 6.

Pacheco does not claim he was treated any differently because of the suspect

classification. He only claims the classification has prevented his progression

through the system. The grievance officer found Pacheco was “not being

compelled to take sex offender treatment” and that no “charge of a sexual nature

[appeared] in [his] DOC records.” Record Doc. 2, attachment. Inmates might be

classified differently because of slight differences in their histories or because

some inmates present more risk of future misconduct.      See Templeman , 16 F.3d

371. The district court did not err in dismissing Pacheco’s equal protection claim.

      AFFIRMED. The mandate shall issue forthwith.

                                                Entered for the Court

                                                Mary Beck Briscoe
                                                Circuit Judge



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