Unpublished Dispositionpaul R. Manning, Plaintiff-appellant, v. Judy Drake; Pat Sharp, Defendants-appellees, 902 F.2d 33 (6th Cir. 1990)

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U.S. Court of Appeals for the Sixth Circuit - 902 F.2d 33 (6th Cir. 1990) May 14, 1990

Before WELLFORD and BOGGS, Circuit Judges, and HORACE W. GILMORE, District Judge.* 

ORDER

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 record and the briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Plaintiff Manning, an Ohio inmate, filed a civil rights action under 42 U.S.C. § 1983 in which he claimed that he had been wrongfully denied continued participation in a prison tutorial program. The district court dismissed the complaint sua sponte as frivolous under 28 U.S.C. § 1915(d) and this appeal followed. The named defendants and Manning have briefed the issues, Manning proceeding without counsel.

Upon consideration, we conclude that the district court's decision was correct. A complaint is frivolous for purposes of 28 U.S.C. § 1915(d) if it lacks an arguable basis in law or fact. Neitzke v. Williams, 109 S. Ct. 1827, 1831 (1989). We have examined the state law said to create a federally protected interest in prison schooling, Ohio Rev.Code Secs. 5120.43 and 5120.44, and find that it falls short of the standard set forth in Olim v. Wakinekona, 461 U.S. 238, 249-51 (1983). The case lacks an arguable basis in law.

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

 *

The Honorable Horace W. Gilmore, U.S. District Judge for the Eastern District of Michigan, sitting by designation