*This order and judgment is not binding precedent, except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 Tenth Cir. R. 36.3.

1 Although we agree with the district court that Brown’s

allegations on appeal are frivolous, we nevertheless grant his

Motion for Leave to Proceed In Forma Pauperis 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 therefore ordered

submitted without oral argument.

Jonathan David Brown (Brown) appeals the district court’s

Order dismissing his civil rights action for failure 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 of 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 offense release to

home confinement was denied, but told to reapply on September 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 Narcotics, 403 U.S.

388 (1971). Brown alleged that appellees, while acting outside

their official capacities, deprived him of his right to due process

and his right to associate under the First and Fifth Amendments

when they denied him release to home confinement on the basis of

his offense and alleged association with white supremacy groups.

On October 25, 1995, the district court dismissed Brown’s

complaint sua sponte for failure to state a claim. The district

court concluded that under 18 U.S.C. § 3624(c) release to home

confinement was at the discretion of the Bureau of Prisons and,

therefore, Brown had no right to this type of release. The court
- 3 -

further found that Brown’s “complaint reflects no more than the

reasonable exercise of discretion by Bureau of Prisons

authorities.” (Appendix at A-25).

On appeal, Brown argues that the district court abused its

discretion in dismissing his complaint sua sponte for failure to

state a claim. Brown reiterates his contentions that he was denied

his right to associate and his right to due process under the First

and Fifth Amendments by the Bureau of Prisons’ denial 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 granted under

Fed. R. Civ. P. 12(b)(6) if “it is ‘patently obvious’ that the

plaintiff could not prevail on the facts alleged and allowing him

an opportunity to amend his complaint would be futile.” Hall v.

Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citations omitted).

We review the district court’s dismissal and construction 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 prisoner

serving a term of imprisonment spends a reasonable part,

not to exceed six months, of the last 10 per centum of

the term to be served under conditions that will afford

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 to

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 prisoner was held in

pre-release confinement. 981 F.2d at 469-70. Therefore, the

district court did not err in determining that Brown did not have

a right to release to home confinement and that his complaint

reflected no more than a reasonable exercise of discretion 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