* This order and judgment is not binding precedent, except under the doctrines of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 disfa vors 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. 1 UNITED STATES COURT OF APPEALS Filed 2/29/96 TENTH CIRCUIT

CHARLES L. FREDERICK,

Plaintiff-Appellant,

v. FRANK KEATING, EDWARD L. EVANS STATE OF OKLAHOMA,

Defendants-Appellees. Case No. 95-6297 (D.C. Civ-95-1007-M) (Western District of Oklahoma)

ORDER AND JUDGMENT *
Before BRORBY, EBEL, and HENRY, Circuit Judges.

Plaintiff-appellant Charles L. Frederick, a state prisoner appearing pro se and informa pauperis , appeals from the district court’s dismissal of his Section 1983 action, in which he claimed that defendant-appellee the Honorable Frank Keating, Governor of Oklahoma, violat ed Mr. Frederick’s constitutional rights in enforcing the Oklahoma Prison Overcrowding E mergency Powers Act (the CAP law), Okla. Stat. tit. 57 §§ 570 et seq. Mr. Frederick contends that in designating only first time nonviolent offenders eligible for early release f rom prison, the Act1 After examining the briefs and appellate record, this panel has determined that ora l

argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument. 2 violates his Eighth Amendment right to be free from cruel and unusual punishment and his Fourteenth Amendment right to equal protection of the laws, and seeks declaratory and injunc tive relief to require Governor Keating to treat violent and nonviolent offenders equally for e arly release under the Act. Pursuant to 28 U.S.C. § 636(b)(1)(B), the case was referred for initial proceedings to a United States Magistrate Judge, who issued a recommendation that the complaint be dis missed as frivolous under 28 U.S.C. § 1915(d). The district court adopted this recommendation, ordering that the complaint be dismissed as frivolous. Subsequently, the district court deni ed a motion by Mr. Frederick to reconsider the order, and Mr. Frederick filed a timely notice of appeal from the district court’s order. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm. 1 The issue on appeal, which we review for an abuse of discretion, see Fratus v. DeLand , 49 F.3d 673, 674 (10th Cir. 1995), is whether the district court correctly applied 28 U.S.C. § 1915(d), which provides that the court may dismiss an action brought in forma pauperis “if satisfied that the action is frivolous . . . .” Section 1915(d) authorizes dismissal of “a cl aim based on an indisputably meritless legal theory,” Neitzke v. Williams , 490 U.S. 319, 327 (1989), bearing in mind that a pro se litigant’s pleadings should be construed liberally. See Reed v. Dunham , 893 F.2d 285, 286 (10th Cir. 1990) (per curiam). Distilled to its essence, Mr. Frederick’s claim is that treating nonviolent of fenders differently from violent offenders violates the Fourteenth Amendment right to equal pr otection of the laws. Where a statute is alleged to violate equal protection, and where, as here, ne ither a3

suspect class nor a fundamental right is at stake, the only issue is whether the sta tute rationally furthers a legitimate state purpose. See San Antonio Indep. Sch. Dist. v. Rodriguez , 411 U.S. 1, 17 (1973). The CAP law was enacted as an attempt to alleviate prison overcrowding by allowi ng additional credits toward release to be granted to inmates who fall within its provi sions. See
Barnes v. State , 791 P.2d 101, 103 (Okla. Crim. App. 1990). It would be eminently rational for the Governor and Legislature to believe that violent offenders should not be eligible for ea rly release because they present a greater threat to society than nonviolent prisoner s. Because the CAP law therefore rationally furthers a legitimate purpose, it doe s not, as a matter of law, violate the Equal Protection Clause. We hold that the legal theory on whic h Appellant’s claim rests cannot be construed to have merit. We further hold that Appella nt’s claim under the Eighth Amendment is equally and indisputably without merit. We therefore AFFIRM the district court’s dismissal of Mr. Frederick’s com plaint and the district court’s denial of his motion to reconsider the court’s order. The mandate shall issue forthwith.

Entered for the Court,

Robert H. Henry Circuit Judge