                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                       August 14, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 M AR TEL W HITE,

               Plaintiff-Appellant,                      No. 07-1114
          v.                                          District of Colorado
 GARY GOLDER, W arden, Sterling                  (D.C. No. 07-CV-111-ZLW )
 Correctional Facility; C. SOARS,
 Administrative Head or Designee;
 M ICHELE LAPO RTE, Hearing
 Chairperson; JASON ZW IM , Lt.;
 TIM OTHY M CGILL, Lt.,

               Defendants-Appellees.



                            OR D ER AND JUDGM ENT *


Before BR ISC OE, M cKA Y, and M cCO NNELL, Circuit Judges.


      M artel W hite is a prisoner of the state of Colorado proceeding pro se.

After a disciplinary hearing at the Sterling Correctional Facility, M r. W hite was



      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10 th Cir. R. 34.1(G). This case is
therefore submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10 th Cir. R. 32.1.
found guilty of fighting with another inmate. He was fined and lost some good

time credit. M r. W hite brought this suit under 42 U.S.C. § 1983, asserting

violations of his civil rights during, and resulting from, the disciplinary hearing.

He appeals from the district court’s sua sponte decision dismissing his claims as

frivolous under 28 U.S.C. § 1915(e)(2)(B)(i).

      W e review a district court’s dismissal under § 1915(e)(2)(B) for abuse of

discretion. M cWilliams v. Colorado, 121 F.3d 573, 574–75 (10th Cir. 1997). In

accordance with § 1915(e)(2)(B), we are required to dismiss an in form a pauperis

appeal if w e determine that it is frivolous. This Court has held that an appeal is

frivolous if it “lacks an arguable basis in either law or fact.” Thom pson v.

Gibson, 289 F.3d 1218, 1222 (10th Cir. 2002). Because M r. W hite is proceeding

pro se, we construe his complaint liberally. Perkins v. Kan. Dep’t of Corr., 165

F.3d 803, 806 (10th Cir. 1999).

      M r. W hite argues on appeal that his due process rights were violated

because he w as not given notice of the potential penalties before his hearing. H e

did not present this claim in district court. Federal appellate courts w ill rarely

consider issues not raised in the district court. See Singleton v. Wulff, 428 U.S.

106, 120 (1976); Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 720–21 (10th

Cir. 1993). M r. W hite has not set forth any “special circumstance” that requires

us to review this issue despite lack of preservation below. United States v.

Windrix, 405 F.3d 1146, 1156 (10th Cir. 2005).

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      In any event, notice of potential penalties is not one of the requirements of

due process. In Wolff v. M cDonnell, 418 U.S. 539 (1974), the Supreme Court

held that due process requires that a prisoner facing a disciplinary hearing be

provided advance written notice of the charges, “the opportunity ‘to call

witnesses and present documentary evidence in his defense,’” and “a ‘written

statement of the factfinders as to the evidence relied on and the reasons’ for the

disciplinary action.” Smith v. M aschner, 899 F.2d 940, 946 (10th Cir. 1990)

(quoting Wolff, 418 U.S. at 563–66). M r. W hite does not claim that he was

denied any of the rights articulated in Wolff. Indeed, the record shows that he was

given notice of the hearing, the opportunity to defend himself, and a written

statement of the evidence the factfinder relied on. Therefore, his due process

claim was properly dismissed.

      M r. W hite also asserts a violation of the Equal Protection Clause. W e have

reviewed the district court’s opinion dismissing this claim and find its reasoning

and conclusions correct. To prevail on an equal protection claim, a plaintiff must

show that the government has treated him differently than others w ho are

similarly situated. See Penrod v. Zavaras, 94 F.3d 1399, 1406 (10th Cir. 1996).

As part of his punishment for fighting, M r. W hite was ordered to pay restitution

of $410.20, half of the medical costs associated with his fight. He claims the

restitution order violates his equal protection rights because other inmates are not

ordered to pay restitution. Because M r. W hite does not claim that this treatment

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resulted from a suspect classification, his punishment complies with the equal

protection of the laws so long as it is rationally related to a legitimate government

interest. See Templeman v. Gunter, 16 F.3d 367, 371 (10th Cir. 1994). M r. W hite

has not presented any evidence to prove that the distinction between himself and

others “was not reasonably related to some legitimate penological purpose.” Id.

Therefore, we affirm the dismissal of this claim.

      The appeal is DISM ISSED. This dismissal counts as a strike under 28

U.S.C. § 1915(g). Appellant’s motion to proceed in form a pauperis is also

DENIED. Plaintiff is reminded that he is obligated to make partial payments to

this court until the entire appellate filing fee is paid in accordance with 28 U.S.C.

§ 1915(b).

                                                Entered for the Court,

                                                M ichael W . M cConnell
                                                Circuit Judge




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