                                                                                F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                 JUN 25 2003
                                     TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                     Clerk

 DAVID A. DANIEL, SR.,

           Plaintiff-Appellant,
 v.                                                           No. 02-6415
 RONALD ANDERSON, individual                            (D.C. No. 01-CV-902-R)
 capacity and official capacity as Assistant               (W.D. Oklahoma)
 General Counsel for the ODOC,

           Defendant-Appellee.


                                  ORDER AND JUDGMENT*


Before KELLY, BRISCOE and LUCERO, Circuit Judges.


       After examining the briefs and 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.

       Plaintiff David Daniel, a state prisoner appearing pro se, appeals the dismissal of

his civil rights action against Ronald Anderson, the assistant general counsel for the



       *
        This order is not binding precedent, except under the doctrines of law of the case,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.
Oklahoma Department of Corrections. Exercising jurisdiction pursuant to 28 U.S.C.

§ 1291, we affirm.

       In 1997, Daniel filed a civil rights action against four individual defendants

represented by Anderson. We affirmed the dismissal of claims against two of the

defendants, see Daniel v. Merritt, 2000 WL 691101 (10th Cir. May 25, 2000), and Daniel

settled with the other defendants. During settlement negotiations, Daniel was advised that

any disbursement of funds would be subject to Okla. Stat. tit. 57, § 566.1, which requires:

       Any inmate . . . who successfully obtains a final court order or settlement
       agreement awarding damages for any cause of action in any federal or state
       proceedings against the state, a state agency, the Department or any political
       subdivision, or any employee thereof, shall pay or satisfy from the award
       any previous assessments of court costs or fines involving the criminal
       convictions of the offender, victims compensation, assessments, restitution
       awards, probation or parole fees, child support or alimony, civil judgments,
       and any deficiencies of debts not paid of which the Department of
       Corrections has notice by judgment, lien, garnishment, or other appropriate
       process.

Daniel’s stepfather, who had custody of Daniel’s minor son, had obtained a default

judgment against Daniel for unsatisfied child support payments. In addition, Daniel owed

probation and parole fees and court costs as a result of several criminal cases. The state

court ordered payment of a portion of the settlement proceeds to two Oklahoma counties,

a portion to Daniel’s stepfather, and attorney fees to the DOC, leaving no funds to pay the

expenses of the civil rights action.

       Daniel filed this action claiming (1) Anderson seized the settlement proceeds

without due process of law; (2) Anderson seized the settlement proceeds in retaliation for

                                             2
filing a previous civil rights action; and (3) Anderson’s acts constituted theft and

conversion. The first two claims arose under 42 U.S.C. § 1983; the last claim invoked

only state law. The district court adopted the magistrate’s report and recommendation,

dismissing the federal claims and declining jurisdiction over the state law claim. The

court also denied Daniel’s motion to amend his complaint to add new claims.

                                               I.

       We review de novo the district court’s grant of a Federal Rule of Civil Procedure

12(b)(6) motion to dismiss. See Ford v. West, 222 F.3d 767, 771 (10th Cir. 2000). We

accept all well-pleaded allegations as true and construe them in the light most favorable to

the plaintiff.1 Id. In the end, the issue is not whether plaintiff will ultimately prevail, but

whether plaintiff is entitled to offer evidence to support the claims. See Swierkiewicz v.

Sorema N.A., 534 U.S. 506, 514-15 (2002). To succeed on a due process claim, Daniel

must identify a protected property interest and allege he was deprived of that right

without due process. See Gillihan v. Shillinger, 872 F.2d 935, 938-39 (10th Cir. 1989).

We assume, without deciding, that Daniel had a protected property interest in the

settlement funds.

       Based upon a review of the factors identified in Mathews v. Eldridge, 424 U.S.

319, 335 (1976), we conclude Daniel was afforded due process. As an inmate, Daniel


       1
         The district court considered a Martinez report for purposes of determining
whether Daniels had a “possibly meritorious claim” and not for purposes of resolving
conflicting evidence. See Hall v. Bellmon, 935 F.2d 1106, 1112-13 (10th Cir. 1991).

                                               3
had an interest in the settlement proceeds but his ability to exercise control over those

funds was limited. See Hampton v. Hobbs, 106 F.3d 1281, 1287 (6th Cir. 1997). The

risk of erroneous deprivation was minimal because the funds were used to satisfy his

existing debts. To the extent Daniel challenges the validity of those debts, he could have

timely contested them in state court.

       Daniel argues the district court erred in dismissing his retaliation claim. “An

inmate claiming retaliation must ‘allege specific facts showing retaliation because of the

exercise of the prisoner’s constitutional rights.’” Peterson v. Shanks, 149 F.3d 1140, 1144

(10th Cir. 1998). After reviewing the record, we agree that Daniel “failed to allege

specific facts necessary to support a retaliation claim.” Magistrate Rpt. at 13.

                                             II.

       Daniel’s motion to amend his complaint was denied because the district court

found the new claims were unrelated to Anderson’s actions. Daniel does not contest this

conclusion on appeal but now seeks to amend his complaint to attack the constitutionality

of § 566.1. We will not address this issue as it was not raised before the district court.

See Tele-Communications, Inc. v. Commissioner, 104 F.3d 1229, 1233 (10th Cir. 1997).

       AFFIRMED. Daniel’s motion to amend his complaint and his request to proceed

in forma pauperis on appeal are DENIED.

                                                   Entered for the Court

                                                   Mary Beck Briscoe
                                                   Circuit Judge

                                              4
