* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 8 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

THURMAN HARRISON, JR.,

Plaintiff - Appellant, No. 02-1094

v. (D.C. No. 01-WM-302) BENT COUNTY CORRECTIONAL FACILITY; CHARLES RAY; and STEVEN BROWN, JR., Assistant Warden, Bent County Correctional Facility, (D. Colorado)

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 notmaterially 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 ora l argument. This is a pro se state prisoner § 1983 civil rights appeal. Mr. Harrison’s-2-

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 accountwas in arrears. In his § 1983 complaint, Mr. Harrison claimed equal protection an d Eighth Amendment violations and denial of access to the courts. The magistrate judge recommended that Defendants’ Motion to Dismiss be granted. Aft er 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 Eig hth Amendment violations fail “because he has not alleged any ‘wanton and unneces sary infliction of pain’” Order at 3 quoting Plaintiff’s Objections at 5. Ap pellant also concedes his access to the courts claim because he admits that he canno t allege actual injury at this time. Additionally, we agree that the claims again st Charles Ray should be dismissed with prejudice. Though Mr. Ray has not b een served, Appellant “makes no distinct allegations against him which wo uld suffice to keep any issue open awaiting possible service.” Id. at 4. Mr. Harrison’s only viable claim on appeal is his e qual protection claim that he is being treated differently than other inm ates because he is indigent. Because Mr. Harrison is neither a member of a suspe ct class nor does he allege-3-

that a fundamental right has been burdened, Defenda nts’ action must “only bear a rational relation to some legitimate end.” White v . Colorado , 157 F.3d 1226, 1234 (10th Cir. 1998) (quotation omitted). “Reason able regulations are necessary to balance the rights of prisoners with budgetary c onsiderations.” Twyman v. Crisp , 584 F.2d 352, 359 (10th Cir. 1978) (citation omitted). We agree with the district court’s determination that “[t]he limitati on of plaintiff’s spending is rationally related to a legitimate end.” Order at 3. After a thorough review of the briefs and the recor d and for substantially the same reasons set forth in the district court’s well-reasoned February 15, 2002, Order adopting the magistrate judge’s recommendatio n, 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 pre viously assessed until such have been paid in full. Entered for the Court

Monroe G. McKay Circuit Judge