UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

WILLIAM FELTS, Plaintiff-Appellant,

v. CITY OF DODGE CITY, KANSAS, Defendant-Appellee. No. 11-3262 (D.C. No. 6:10-CV-01200-JTM-KMH) (D. Kan.)

ORDER AND JUDGMENT *

Before MATHESON , Circuit Judge, PORFILIO , Senior Circuit Judge, and BALDOCK , Circuit Judge.

William Felts appeal s from the district court’s di smissal of his pro se civil rights complaint against the C ity of Dodge City, Kansas (C ity). In his complaint, Felts alleged that “the City ’s trade licensure ordinances ” had been “misapplied and selectively enforced to his detriment,” thus violating th e Equal Protection Clause of

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not mate rially assist the de termination 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court- 2 - the Fourteenth Amendment. R., at 5. Th e district court dism issed the complaint, finding that Felts had failed to allege that the City had tr eated any similarly situated person differently than himself with respect to the specified ordi nances. We affirm. In his complaint, Felts alleged that he works as a tradesma n in the City. The City’s Municipal Code requires those who pe rform trades work su ch as heating, air conditioning, plumbing, or electrical work, to be licensed. Prior to bringing his suit, Felts engaged in a dispute with the City ’s Inspection Department over whether the licensing requirement should be applied to him. He eventually obtained the appropriate City license for his work. But he asserts that he remains aggrieved by the licensure requirement because it is selectively enforced. In particular, he claims that although “it has long been common knowledge th at the trade/contracting staff of the ‘major players’ in Dodge City’s tradeswork community . . . are and have always been largely un-licensed,” the City nevertheless permits these “Major Contractors” to carry on their trades work “large ly . . . exempt” from licensure. Id. at 7. Thus, he “was required to obtain licensure that th e Major Contractors have largely been exempt[ed] from.” Id. For this alleged violation of his right to equal protection of the laws, Felts sought equita ble relief and damages. The district court carefully parsed Felts’ complaint and his response to the City’s motion to dismiss and determined that he “does not argue that the City fails to enforce the licensure requirement against ot her ‘solo trades workers,’ but emphasizes repeatedly that the City is giving unfai r preference to ‘the big trades work- 3 - companies’ by excusing them from the licensure requirement.” Id. at 35. The

district court observed th at “[e]ssentially, Felts argues that he is in a ‘class of one’ in contract to preferred, larger businesses.” Id. at 36. It concluded, however, that he had made no showing that these “Major Contr actors” were “identi cal in all relevant respects” with himself. Id. Therefore, he necessarily fa iled to state a claim under the Equal Protection Clause.

We review de novo the district cour t’s dismissal of Felts’ civil rights complaint for failure to state a claim. See Al-Owhali v. Holder , 687 F.3d 1236, 1239 (10th Cir. 2012). “If the plaintiff proceeds pro se , the court should construe his pleadings liberally and hold th e pleadings to a less stringe nt standard than formal pleadings drafted by lawyers.” Riddle v. Mondragon , 83 F.3d 1197, 1202 (10th Cir. 1996). “However, the broad reading of the plaintiff’s complaint does not relieve the plaintiff of the burden of alleging suffici ent facts on which a recognized legal claim

could be based.” Id. (internal quotati on marks omitted). Felts raises two issues on appeal: (1) whether he compared himself with someone similarly situated, and (2) whethe r he established a case of selective

enforcement. 1 “To prevail on a [class-of-one e qual protection] theory, a plaintiff

must first establish that ot hers, similarly situated in every material respect were

1 Felts also makes a one-sentence argumen t that the district court should have analyzed his claim under an “‘ extraordinary process’” analys is. Aplt. Opening Br. at 4. The argument is not sufficiently devel oped for appellate cons ideration, and we decline to address it.- 4 - treated differently.” Kan. Penn Gaming, LLC v. Collins , 656 F.3d 1210, 1216 (10th Cir. 2011) (internal quotation marks omitted). This “similarly situated” requirement applies to claims al leging selective enforcement. Grubbs v. Bailes , 445 F.3d 1275, 1282 ( 10th Cir. 2006). Although the district cour t concluded that Felts identified the “Major Contractors” as his alleged comparators, he now contends that it is the unlicensed

individual employees of these contractors with whom he should be compared. Aplt. Opening Br. at 3. But he is not similarl y situated with these employees, either; for while he is a solo contractor, they work for large companies who, Felts concedes, “have . . . people at their offi ces that have the appropriat e license,” Aplt. Opening Br. at 3, 2 and “us[e] the licensed person’s license to do trades work.” Id. at 5. We view class-of-one equal prot ection claims with caution. Kan. Penn Gaming , 656 F.3d at 1216. It is crucial that the plaintiff asserting such a claim meet

his “substantial burden” of dem onstrating that there are othe rs “similarly situated in

2 In his reply brief, Felts provides, among other things, a list of unlicensed individuals who have allegedly been permitted to work as sole tradesmen in Dodge City, and a list of unlicensed individuals whom he alleges “perform Mechanical trades work in [Dodge City] for a company which has no person licensed to do Mechanical trades work in Dodge City.” Aplt. Reply Br . at 4 (emphasis omitted). Setting aside the question of wh ether we should consider evidence Felts presents for the first time on appeal, or whether such unsworn evidence can appropriately be considered in reviewing an order of dism issal, this evidence does not support the argument Felts makes in his opening brief, concerning companies that do have at least one licensed person on staf f. “[A]rguments raised fo r the first time in a reply brief are generally deemed waived.” United States v. Harrell , 642 F.3d 907, 918 (10th Cir. 2011). We therefor e decline to consider whether Felts is similarly situated to the unlicensed individuals he identifies in his reply brief.- 5 - all material respects” who have been treated differently. Id. at 1217 (internal quotation marks omitted). We agree with th e district court that Felts failed to meet his burden. Accordingly, we AFFIRM the di strict court’s judgmen t, for substantially

the reasons stated in its Memorandum and Order dated August 1, 2011.

Entered for the Court

Bobby R. Baldock Circuit Judge