                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                            AUG 8 2002
                                 TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 THURMAN HARRISON, JR.,
               Plaintiff - Appellant,                   No. 02-1094
          v.                                       (D.C. No. 01-WM-302)
 BENT COUNTY CORRECTIONAL                              (D. Colorado)
 FACILITY; CHARLES RAY; and
 STEVEN BROWN, JR., Assistant
 Warden, Bent County Correctional
 Facility,
               Defendants - Appellees.


                            ORDER AND JUDGMENT *


Before KELLY, McKAY, and MURPHY, Circuit Judges.



      After examining the briefs and the appellate record, this panel has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

The case is therefore ordered submitted without oral argument.

      This is a pro se state prisoner § 1983 civil rights appeal. Mr. Harrison’s



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
spending at the prison was restricted to $7.00 per month of the $50.00 per month

that he earns at his prison job because his account was in arrears. In his § 1983

complaint, Mr. Harrison claimed equal protection and Eighth Amendment

violations and denial of access to the courts. The magistrate judge recommended

that Defendants’ Motion to Dismiss be granted. After consideration of Mr.

Harrison’s objections and Defendants’ response to the objections, the district

court adopted the recommendation and dismissed the complaint. Mr. Harrison

appeals to this court.

      We agree with the district court that Mr. Harrison’s claims should be

dismissed. Appellant agrees that his claims of Eighth Amendment violations fail

“because he has not alleged any ‘wanton and unnecessary infliction of pain’”

Order at 3 quoting Plaintiff’s Objections at 5. Appellant also concedes his access

to the courts claim because he admits that he cannot allege actual injury at this

time. Additionally, we agree that the claims against Charles Ray should be

dismissed with prejudice. Though Mr. Ray has not been served, Appellant

“makes no distinct allegations against him which would suffice to keep any issue

open awaiting possible service.” Id. at 4.

      Mr. Harrison’s only viable claim on appeal is his equal protection claim

that he is being treated differently than other inmates because he is indigent.

Because Mr. Harrison is neither a member of a suspect class nor does he allege


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that a fundamental right has been burdened, Defendants’ action must “only bear a

rational relation to some legitimate end.” White v. Colorado, 157 F.3d 1226,

1234 (10th Cir. 1998) (quotation omitted). “Reasonable regulations are necessary

to balance the rights of prisoners with budgetary considerations.” Twyman v.

Crisp, 584 F.2d 352, 359 (10th Cir. 1978) (citation omitted). We agree with the

district court’s determination that “[t]he limitation of plaintiff’s spending is

rationally related to a legitimate end.” Order at 3.

      After a thorough review of the briefs and the record and for substantially

the same reasons set forth in the district court’s well-reasoned February 15, 2002,

Order adopting the magistrate judge’s recommendation, we hold that no relief is

available to Mr. Harrison pursuant to § 1983.

      The decision of the trial court is AFFIRMED. Appellant’s Motion to

proceed in forma pauperis on appeal is GRANTED. Appellant must continue

making partial payments on court fees and costs previously assessed until such

have been paid in full.

                                                Entered for the Court



                                                Monroe G. McKay
                                                Circuit Judge




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