Unpublished Disposition, 857 F.2d 1479 (9th Cir. 1988)

MEMORANDUM^** 

Garnet Stinson, an Arizona state prisoner, appeals pro se the district court's dismissal of his civil rights action. Stinson contends the Arizona Board of Pardons and Paroles (the Board) violated his due process and equal protection rights in denying him parole because it used non-statutory criteria and discriminated against him on the basis of his status as a sex offender in making its decision. The State requests attorney fees on appeal under 42 U.S.C. § 1988.

The district court judgment is affirmed. First, Stinson fully litigated the due process issue in a prior state court action. Accordingly, the doctrine of collateral estoppel bars Stinson from relitigating the issue in this action. See Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 83 (1984); Chaney Bldg. Co. v. City of Tucson, 148 Ariz. 571, 573, 716 P.2d 28, 30 (1986). Second, assuming the State has a policy of treating sex offenders differently from other prisoners, that policy is rationally related to a legitimate state interest of preventing sex crimes through rehabilitation and deterrence. See Mahfouz v. Lockhart, 826 F.2d 791, 794 (8th Cir. 1987); cf. Baumann v. Arizona Dept. of Corrections, 754 F.2d 841, 846 (9th Cir. 1985). Accordingly, the Board did not violate Stinson's equal protection rights and did not err by dismissing his action. Nevertheless, because the arguments in support of Stinson's appeal are not wholly without merit, the State's request for attorney fees should be denied. See Schucker v. Rockwood, 846 F.2d 1202, 1205 (9th Cir. 1988); DeWitt v. Western Pac. R.R., 719 F.2d 1448, 1451 (9th Cir. 1983).

AFFIRMED.