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 1997-10

Brown v. Sales ( 1997 )


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  •                                                                           F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 2 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
DAVID LESLIE BROWN, JR.,
Plaintiff - Appellant,
No. 96-6014
v.
(D.C. No. CIV-95-284-L)
(W.D. Okla. )
CHERIE MILLER SALES,
Defendant - Appellee.
ORDER AND JUDGMENT *
Before BRORBY, EBEL, and KELLY, Circuit Judges.
Plaintiff-Appellant David Leslie Brown, Jr., a prisoner at Lawton
Community Corrections Center (LCCC) in Oklahoma, brought suit pursuant to
    42 U.S.C. § 1983
    , alleging a violation of his right to equal protection because, unlike
prisoners at other Oklahoma facilities where he had been incarcerated, prisoners
at LCCC were not given access to typewriters to prepare court documents. 1
*
The case is unanimously ordered submitted without oral argument pursuant
to Fed. R. App. P. 34(a) and 10th Cir. R. 34.1.9. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
1
We note, although we do not rely on the fact, that Brown's appeal to this
Court--which complains of his lack of access to a typewriter--was typed.
Brown brought the action pro se and in forma pauperis. The district court
dismissed the suit pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim
upon which relief can be granted. The district court also denied Brown leave to
amend his complaint. We have before us Brown's appeal and his motion to
proceed in forma pauperis on appeal.
A prisoner does not have a constitutional right of access to a typewriter.
Twyman v. Crisp,
    584 F.2d 352
    , 358 (10th Cir. 1978). Nevertheless, arbitrarily
discriminating between groups that are similarly situated may give rise to an equal
protection claim. See Jacobs, Visconsi & Jacobs v. City of Lawrence,
    927 F.2d 1111
    , 1118 (10th Cir. 1991) (discussing "similarly situated" requirement of equal
protection claim). It is undisputed that all inmates at LCCC were treated alike:
all were denied access to typewriters. Brown argues that prisoners in other
correctional facilities were given access to typewriters. However, he has failed to
show that the prisoners in these other facilities are similarly situated to the LCCC
prisoners. See Klinger v. Dep't of Corrections,
    31 F.3d 727
    , 729, 731-732 (8th
Cir. 1994) (rejecting equal protection claim where plaintiffs sought to compare
programs at different prisons). Prison officials at other facilities may have
decided to provide typewriters at the expense of another benefit provided at
LCCC. Discretionary expenditures by prison officials within different
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correctional facilities cannot be the basis of an equal protection suit. See
    id. at 732-33
    . Thus, the district court correctly dismissed Brown's suit.
Brown also complains that the district court did not allow him to amend his
complaint. Brown moved to amend his complaint nine days after the district court
entered judgment dismissing the suit. Once judgment has been entered, a plaintiff
may not file an amended complaint until the judgment is set aside or vacated.
Seymour v. Thornton,
    79 F.3d 980
    , 987 (10th Cir. 1996). Thus, the district court
did not err in refusing to allow the amendment.
Brown filed the present appeal before April 26, 1996, the effective date of
the Prison Litigation Reform Act of 1995 (PLRA), Pub.L. No. 104-134, Title
VIII,
    110 Stat. 1321
    . Thus, the Act's amendments to
    28 U.S.C. § 1915
     do not
apply to his motion to proceed in forma pauperis. White v. Gregory,
    87 F.3d 429
    ,
430 (10th Cir. 1996). Under the law in effect prior to those amendments, Brown
may proceed in forma pauperis if he has shown an inability to pay filing fees and
a "reasoned, nonfrivolous argument" on appeal.
    Id.
     We conclude that Brown has
met this standard and grant his motion to proceed in forma pauperis.
-3-
For the reasons stated above, we AFFIRM the judgment of the court below
and GRANT Brown leave to proceed in forma pauperis on appeal.
The mandate shall issue forthwith.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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