UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JACKIE DEE HUGHES,

Plaintiff - Appellant,

v.

MICHAEL SIBBETTS, UTAH BOARD OF PARDONS, MICHAEL O. LEAVITT; Governor of the State of Utah in his individual and official capacity; and UTAH STATE LEGISLATURE,

Defendants - Appellants.

No. 02-4156

(Utah)

(D.C. No. 2:01-CV-924 K)

ORDER AND JUDGMENT*

Before SEYMOUR, MURPHY, and O'BRIEN, 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). The case is therefore ordered submitted without oral argument.

Jackie Dee Hughes filed a pro se 42 U.S.C. § 1983 (2002) complaint. Pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii),1 the district court dismissed the complaint sua sponte and with prejudice for failure to state a claim upon which relief can be granted. Mr. Hughes, still acting pro se,2 appeals. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

Mr. Hughes is a state prisoner committed to Utah's Purgatory Correctional Facility. He was committed on January 8, 1999, to a term of imprisonment of fifteen years to life. On December 12, 2001, he filed a § 1983 complaint in the United States District Court for the District of Utah against members of the Utah Board of Pardons and Parole (Board), the Governor of Utah, and all members of the Utah Legislature, in their official and individual capacities. He alleged that Board practices relating to his term of imprisonment violated his due process rights under the federal Constitution.3 In particular, he complained of the manner in which the Board set hearing dates,4 conducted parole hearings and granted parole. He sought compensatory and punitive damages, together with injunctive relief. The district court dismissed his complaint for failure to state a due process claim, reasoning that he had no protected liberty interest in parole.

We review de novo. Perkins v. Kansas Dep't of Corr., 165 F.3d 803, 806 (10th Cir. 1999). As with a dismissal under Fed. R. Civ. P. 12(b)(6), dismissal under § 1915(e)(2)(B)(ii) is not proper "unless it appears beyond doubt that the plaintiff can prove no set of facts" that would entitle him to the relief claimed. Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999) (quotations and citations omitted).

Malek v. Haun is dispositive. 26 F.3d 1013 (10th Cir. 1994). There, we held a prisoner committed under Utah law does not possess a protected liberty interest in his parole under the due process clause of the Fourteenth Amendment. Id. at 1016. Under no set of facts can Mr. Hughes prevail in his § 1983 suit targeting Utah's parole procedures.5 Id. at 1015.

We also conclude Mr. Hughes' appeal is frivolous. We adopt the reasoning of the district court and DISMISS the appeal as frivolous.6 With the dismissal of this appeal, combined with the district court's dismissal of his complaint with prejudice for failure to state a claim upon which relief may be granted, Mr. Hughes has accumulated two strikes under 28 U.S.C. § 1915(g).7 Finally, we deny Mr. Hughes' motion to proceed with his appeal in forma pauperis (without prepayment of fees or security therefor) under 28 U.S.C. § 1915(a)(1). Mr. Hughes is reminded that he must pay the filing fee in full.

Entered by the Court:

TERRENCE L. O'BRIEN

United States Circuit Judge