Unpublished Dispositionjimmy L. Harris, Anthony Crabtree, John Gammons, Hubertsmith, Plaintiffs- Appellants, v. Ron Simmons, Chairman Kentucky Parole Board; George Wilson,secretary Corrections Cabinet; Parole Board Members,kentucky Parole Board; Martha L. Collins, Governor Ofkentucky, Defendants-appellees.jimmy L. Harris, Plaintiff-appellant, v. Martha Layne Collins, Governor; Ron Simmons, Chairmankentucky Parole Board, Defendants-appellees, 848 F.2d 191 (6th Cir. 1988)

ORDER

The plaintiff proceeding pro se appeals from the district court's order dismissing his civil rights claims without prejudice and moves this court to appoint counsel. The appeals have been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. After an examination of the record and the plaintiff's brief, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

In his complaints, the plaintiff alleged that the Parole Board improperly denied his application for parole. Because this claim only relates to the duration of his custody, the district court construed it as a petition for habeas relief. Preiser v. Rodriguez, 411 U.S. 475 (1972). Thereafter, this claim was properly dismissed due to the plaintiff's failure to exhaust his state court remedies. Hadley v. Werner, 753 F.2d 514, 516 (6th Cir. 1985) (citing Preiser, 411 U.S. at 482). Although not controlled by Preiser, the district court was also required to dismiss plaintiff's Sec. 1983 claim for money damages. Hadley, 753 F.2d at 516.

The plaintiff also alleged that his hearing before the Parole Board did not comport with procedural due process. However, as the district court correctly noted, the plaintiff has no liberty interest protected by the fourteenth amendment. Although state statutes can create a protected liberty interest, no such interest is created by a statute that, like Ky.Rev.Stat. Sec. 439.340, allows the Parole Board to grant or deny parole at its discretion. See Bills v. Henderson, 631 F.2d 1287, 1293 (6th Cir. 1980). Additionally, this court has decided that a prisoner has no constitutional right to see his prison file. Mayes v. Trammel, 751 F.2d 175, 179 (6th Cir. 1984). Therefore, the plaintiff's due process claim based on denial of access to his file, dismissed without prejudice by the district court, is to be dismissed with prejudice because such a claim is clearly without merit.

The motion for counsel is denied. The district court's orders of dismissal are affirmed, as modified, under Rule 9(b) (5), Rules of the Sixth Circuit, because the issues are not substantial and do not require oral argument.