* This order and judgment is not binding precedent, except under the doctrines of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. 

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

### JUL 14 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MELVIN BOWMAN,

Plaintiff - Appellant, No. 97-1071

v. (D. Colorado) KAY SIEFIED, JOHN RILEY, RICHARD MURRAY, ROBERTA MELTON, HAL VAN DRUFF, PHIL DENIG, RENE MURPHY, TOM O’BRIEN, and ROBERT FURLONG,

Defendants - Appellees. (D.C. No. 96-S-2466)

ORDER AND JUDGMENT *

Before ANDERSON , HENRY , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Melvin Bowman is currently an inmate at the Arrowhe ad Correctional Facility in Canon City, Colorado. Acting pro se, h e filed this 42 U.S.C. § 1983 action, alleging (1) that the defendants conspired to deprive him of a constitutionally protected liberty interest in his prison employment without due process of law, and (2) that the defendants denied him equal protection of the law. The district court dismissed Bowman’s complaint suasponte, finding it was frivolous and failed to state a claim upon which re lief may be granted. This appeal ensued. Pursuant to 28 U.S.C. § 1915(e)(2)(B), a district c ourt may dismiss sua sponte an in forma pauperis action as frivolous or as failing to state a claim upon which relief may be granted. Whitney v. New Mexico , 113 F.3d 1170, 1172-73 (10th Cir. 1997). Such dismissal is appropriate “i f the plaintiff cannot make a rational argument on the law and facts” in support of his claim, or if it is “patently obvious” that the plaintiff could not pre vail on the facts alleged, and allowing an opportunity to amend would be futile. Id. (citations and quotations omitted). We review a district court’s dismissal o f a complaint under § 1915(e)(2)(B) for an abuse of discretion. See Schlicher v. Thomas , 111 F.3d 777, 779 (10th Cir. 1997). Bowman’s due process claim relates to the loss of h is employment in a prison garment factory after prison officials alleg ed that he had stolen a clothing1 On appeal, Bowman for the first time alleges that prison officials treated him

differently because he is black. Appellant’s Br. at 5. In determining whether the district court abused its discretion, we will not consider issues or arguments on appeal that were not before the district court. Withiam v. Baptist Health Care of Oklahoma, Inc. , 98 F.3d 581, 584 (10th Cir. 1996). -3- label. As the district court correctly determined, this claim is meritless because state prisoners do not have a constitutionally prot ected liberty interest in prison employment, regardless of any statutes or prison re gulations entitling prisoners to work. Penrod v. Zavaras , 94 F.3d 1399, 1407 (10th Cir. 1996). Bowman’s exceedingly vague equal protection claim i s based solely on the assertion in his complaint that he “was discriminat ed against when [he] was given an ‘0’ Monthly Evaluation after his termination. When in fact he had received a 3.83 Monthly Evaluation for the pass [sic] 13 month s.” Complaint at 3. Read liberally, these conclusory allegations simply do n ot make any rational argument on the law and facts supporting an equal protectionclaim. 1 Accordingly, for the foregoing reasons, as well as for those ably set forth in the district court’s order, we DISMISS Bowman’s app eal as frivolous under 28 U.S.C. § 1915(e)(2)(B), and note that it shall count as a “prior occasion[]” under § 1915(g).
ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge