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No. 96-1278

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Jerry L. Hansen, *

*

Appellee, *

*

v. *

* Appeal from the United States

Judy Rimel, R.N., * District Court for the

* District of Nebraska.

Defendant, *

*

John Dahm, *

*

Appellant. *

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 Submitted: September 9, 1996

 Filed: January 7, 1997

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Before McMILLIAN, MAGILL, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

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MAGILL, Circuit Judge.

Jerry Hansen, an inmate at the Omaha Correctional Center (OCC) in

Nebraska, brought suit under 42 U.S.C. § 1983 against John J. Dahm in his

official capacity as warden of the OCC. Hansen, who has a hearing

impairment, claimed that OCC's failure to provide a special telephone

adapted for his disability constituted a violation of his right to equal

protection because he did not have the same access to telephones as inmates

who do not have hearing
 Hansen had been provided with an adapted telephone in

1

September 1994, but requested a superior adapted telephone in June

1995.

 Hansen's § 1983 suit also alleged violations of the Eighth

2

Amendment, the Rehabilitation Act of 1973, codified at 29 U.S.C. §

794(a), and the Americans with Disabilities Act, codified at 42

U.S.C. §§ 12101-12213. The district court granted Dahm's motion

for summary judgment for these claims, see Mem. and Order at 14-15.

This decision is not before us.

 Although protected by statutory enactments such as the

3

Americans with Disabilities Act, the disabled do not constitute a

"suspect class" for purposes of equal protection analysis. See,

e.g., Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 442

(1985) (mentally retarded not a constitutionally protected suspect

class); More v. Farrier, 984 F.2d 269, 271 (8th Cir.), cert.

denied, 510 U.S. 819 (1993) (physically disabled not suspect

class).

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impairments. Dahm moved for summary judgment on the basis of qualified

1

immunity, which was denied by the district court as to the equal protection

claim. This appeal followed. 2

Dahm is entitled to qualified immunity from Hansen's equal protection

claim if Dahm can prove this his "conduct [did] not violate clearly

established statutory or constitutional rights of which a reasonable person

would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Dahm

could only have violated Hansen's right to equal protection if he treated

Hansen dissimilarly than similarly situated inmates. See Klinger v.

Department of Corrections, 31 F.3d 727, 731 (8th Cir. 1994), cert. denied,

115 S. Ct. 1177 (1995). Thus, the issue in dispute is whether Hansen is 3

similarly situated to inmates who do not have hearing impairments.

In determining whether a disabled inmate is similarly situated to

nondisabled inmates, this Court has examined whether the disabled plaintiff

is equally capable for the purpose at issue. See More v. Farrier, 984 F.2d

269, 271 (8th Cir.) (inmates in wheelchairs are equally capable, and thus

similarly situated, to nondisabled inmates for the purpose of watching

television), cert.
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denied, 510 U.S. 819 (1993). Hansen, who is hearing impaired, is not

equally capable of accessing a standard telephone--which transmits the

spoken word at a tone and volume comfortable for a nonhearing impaired

individual--as an inmate who can hear. Indeed, that Hansen is not capable

of using a standard telephone is the crux of his entire complaint.

Accordingly, Hansen is not similarly situated to hearing inmates for the

purpose of using a telephone.

Because Hansen was not similarly situated to other inmates for the

purpose of using a telephone, there could have been no equal protection

violation. The district court erred as a matter of law in denying Dahm a

grant of summary judgment based on qualified immunity, and we accordingly

reverse its judgment.

A true copy.

Attest

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.