Unpublished Dispositiongerald Rodgers, Plaintiff-appellant, v. Richard P. Seiter, Defendant-appellee, 860 F.2d 1080 (6th Cir. 1988)

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U.S. Court of Appeals for the Sixth Circuit - 860 F.2d 1080 (6th Cir. 1988) Oct. 24, 1988

Before MERRITT, BOYCE F. MARTIN, Jr. and MILBURN, Circuit Judges.


This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the briefs and record, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Gerald Rodgers appeals the dismissal of his prisoner civil rights complaint filed under 42 U.S.C. § 1983 as frivolous pursuant to 28 U.S.C. § 1915(d). Rodgers alleged that a prison policy which disqualifies convicted sex offenders from a minimum security status violates the equal protection clause of the fourteenth amendment. The district court dismissed the complaint sua sponte as frivolous pursuant to Sec. 1915(d).

Plaintiff contends that the dismissal violated this court's pronouncement in Tingler v. Marshall, 716 F.2d 1109 (6th Cir. 1983). However, Tingler does not apply in cases where, as here, the district court explicitly invoked Sec. 1915(d) and determined that the complaint is frivolous. Harris v. Johnson, 784 F.2d 222 (6th Cir. 1986); Brooks v. Dutton, 751 F.2d 197 (6th Cir. 1985) (per curiam). Moreover, the district court's determination that plaintiff's complaint is frivolous was correct. See Hendking v. Smith, 781 F.2d 850 (11th Cir. 1986).

Accordingly, the judgment of the district court is affirmed. Rule 9(b) (5), Rules of the Sixth Circuit.