___________ No. 96-1278

___________ 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. *

__________ Submitted: September 9, 1996 Filed: January 7, 1997

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

___________ MAGILL, Circuit Judge.
Jerry Hansen, an inmate at the Omaha Correctional Center (OCC) i n Nebraska, brought sui t under 42 U.S.C. § 1983 against John J. Dahm in his official capacity as warden of the OCC. Hansen, who has a hearin g impair ment, claimed that OCC's failure to provide a special telephon e adapted for his disability constituted a violation of his right to equal protection because he did not have the same access to telephones as inmate s who do not have hearing

### Han sen had been provided with an adapted telephone i n 1 

### September 1994, but requested a superior adapted telephone in June 1995. Hansen's § 1983 suit also alleged violations of the Eight h

2 

### Amendment, the Rehabilitation Act of 1973, codified at 29 U.S.C. § 794(a) , and the Americans with Disabilities Act, codified at 4 2 U.S .C. §§ 12101-12213. The district court granted Dahm's motio n 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 th e 3 

### Americans with Disabilities Act, the disabled do not constitute a "su spect class" for purposes of equal protection analysis. See , e.g. , Cleburne v. Cleburne Living Ctr., Inc. , 473 U.S. 432, 44 2 (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 suspec t class). -2- impair ments. Dahm moved for summary judgment on the basis of qualifie d 1 immunity, which was denied by the district court as to the equal protectio n claim. This appeal followed.

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Dahm is entitled to qualified immunity from Hansen's equal prot ection claim if Dahm can prove this his "conduct [did] not violate clearl y established statutory or constitutional rights of which a reasonable perso n would have known." H arlow v. Fitzgerald , 457 U.S. 800, 818 (1982). Dahm could only have viola ted 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 t o nondisabled inmates, this Court has examined whether the disabled plaintif f is equally capable for the purpose at issue. See More v. Farrier , 984 F.2 d 269, 271 (8th Cir.) ( inmates in wheelchairs are equally capable, and thus simila rly situated, to nondisabled inmates for the purpose of watchin g television), cert.

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den ied , 510 U.S. 819 (1993). Hansen, who is hearing impaired, is no t equa lly capable of accessing a standard telephone--which transmits th e spoke n word at a tone and volume comfortable for a nonhearing impaire d 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 th e purpose of using a telephone, there could have been no equal protectio n violation. The distr ict court erred as a matter of law in denying Dahm a grant of summary judg ment based on qualified immunity, and we accordingly reverse its judgment.
A true copy.

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