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842 F2d 334 Wagner v. United States

842 F.2d 334

Ed WAGNER, Jr., Plaintiff-Appellant,
v.
UNITED STATES of America, Defendant-Appellee.

No. 86-5866.

United States Court of Appeals, Sixth Circuit.

March 23, 1988.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Before ENGEL, MERRITT and CORNELIA G. KENNEDY, Circuit Judges.

ORDER

1

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

2

This pro se prisoner appeals the district court's judgment dismissing his civil rights complaint as frivolous pursuant to 28 U.S.C. Sec. 1915(d).

3

Plaintiff sought to have 42 U.S.C. Sec. 402(x)(1) declared unconstitutional. This statute provides that monthly disability benefits to incarcerated felons be suspended unless the prisoner is participating in a court approved rehabilitation program. Plaintiff argued that the statute violates the due process clause and constitutes an ex post facto law. The district court dismissed the complaint as frivolous pursuant to 28 U.S.C. Sec. 1915(d). Upon review, we affirm the district court's judgment.

4

42 U.S.C. Sec. 402(x)(1) does not violate due process, nor does it constitute an ex post facto law. We held in Caldwell v. Heckler, 819 F.2d 133 (6th Cir.1987), that this statute is not in any way defective in that regard. See also Peeler v. Heckler, 781 F.2d 649 (8th Cir.1986); Jensen v. Heckler, 766 F.2d 383 (8th Cir.) (per curiam), cert. denied, 474 U.S. 945 (1985).

5

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