* This order and judgment is not binding precedent, e xcept

under the doctrines of law of the case, res judicat a, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order andjudgment may be cited under the terms and conditions of Tenth Ci r. R. 36.3.

1 Although we agree with the district court that Brow n’s allegations on appeal are frivolous, we nevertheles s grant his Motion for Leave to Proceed InFormaPauperis in order to reach the merits of this appeal. See (Appendix at A-38). UNITED STATES COURT OF APPEALS Filed 5/1/96 FOR THE TENTH CIRCUIT

______ JONATHAN DAVID BROWN, ) ) Plaintiff-Appellant, ) ) v. ) No.95-3404 ) (D.C. No. 95-CV-3420) JASON GROSS and JANET RENO, ) (Dist. of Kan.) ) Defendants-Appellees. )

______ ORDER AND JUDGMENT *

______ Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.

______ After examining the briefs 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); Tenth Cir. R. 34.1.9. The case is t herefore ordered submitted without oral argument. Jonathan David Brown (Brown) appeals the district c ourt’s Order dismissing his civil rights action for failur e to state a claim. 1- 2 -

In 1992, Brown was convicted of accessory after the fact to vandalism of a synagogue, in violation of 18 U.S.C. § 3, and false declarations, in violation of 18 U.S.C. § 1623. He was sentenced to 27 months imprisonment followed by three years o f supervised release. On August 5, 1994, Brown inquired about serving the remaining 10% of his sentence as home confinement under 18 U. S.C. § 3624(c). He was informed that due to the nature of his offen se release to home confinement was denied, but told to reapply onSeptember 16, 1994. On September 20, 1994, the Bureau of Prisons denied Brown’s second request for release to home confinement. On October 13, 1995, Brown filed this civil rights complaint under 28 U.S.C. §§ 1331 and 1343, 42 U.S.C. § 1985, and Bivens v. Six Unknown Named Agents of Federal Bureau of Narco tics , 403 U.S. 388 (1971). Brown alleged that appellees, while ac ting outside their official capacities, deprived him of his righ t to due process and his right to associate under the First and Fift h Amendments when they denied him release to home confinement onthe basis of his offense and alleged association with white supr emacy groups. On October 25, 1995, the district court dismissed B rown’s complaint suasponte for failure to state a claim. The district court concluded that under 18 U.S.C. § 3624(c) rele ase to home confinement was at the discretion of the Bureau of Prisons and, therefore, Brown had no right to this type of relea se. The court- 3 -

further found that Brown’s “complaint reflects no m ore than the reasonable exercise of discretion by Bureau of Pris ons authorities.” (Appendix at A-25). On appeal, Brown argues that the district court abu sed its discretion in dismissing his complaint suasponte for failure to state a claim. Brown reiterates his contentions th at he was denied his right to associate and his right to due process under the First and Fifth Amendments by the Bureau of Prisons’ deni al of his request for release to home confinement. The district court may dismiss a complaint sua sponte for failure to state a claim upon which relief can be g ranted under Fed. R. Civ. P. 12(b)(6) if “it is ‘patently obviou s’ that the plaintiff could not prevail on the facts alleged an d allowing him an opportunity to amend his complaint would be futi le.” Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991) (citations o mitted). We review the district court’s dismissal and constr uction of § 3624(c) de novo . Prows v. Federal Bureau of Prisons , 981 F.2d 466, 469 (10th Cir. 1992), cert . denied , ___ U.S. ___ (1993). 18 U.S.C. § 3624(c) provides, in relevant part: (c) Pre-release custody. --The Bureau of Prisons shall, to the extent practicable, assure that a pri soner serving a term of imprisonment spends a reasonable part, not to exceed six months, of the last 10 per centumof the term to be served under conditions that will af ford the prisoner a reasonable opportunity to adjust to and prepare for his re-entry into the community. The authority provided by this subsection may be used t o place a prisoner in home confinement. . . .- 4 -

In Prows , we concluded that the Bureau of Prisons had discre+tion under § 3624(c) regarding where a priso ner was held in pre-release confinement. 981 F.2d at 469-70. Ther efore, the district court did not err in determining that Brow n did not have a right to release to home confinement and that his complaint reflected no more than a reasonable exercise of dis cretion by the Bureau of Prisons.
We AFFIRM

substantially for the reasons set forth in the district court’s Order of October 25, 1995. Entered for the Court:
James E. Barrett, Senior United States Circuit Judge