United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-2787

___________ Phillip Silvey, * * Appellant, * *
v. * * Dora Schriro, in official & individual * Appeal from the United States capacity; Jefferson City Correctional * District Court for the Center; Michael Groose, Superintendent * Western District of Missouri. JCCC; John Douglas, Capt., JCCC; * Burless Ross, Lt., JCCC; Dave Dormire, * [UNPUBLISHED] Assoc. Superintendent; James McQueen, * Sgt., JCCC; Gerald Henry, CO I, JCCC, * * Appellees. *

___________ Submitted: July 7, 1997 Filed: July 16, 1997

___________ Before BOWMAN, WOLLMAN, and BEAM, Circuit Judges.

___________

PER CURIAM.
Phillip S ilvey, a Missouri inmate, appeals from the District Court’s order s dismissing some defendants and granting summary judgment to other defendants in this 42 U.S.C. § 1983 (1994) action. We affirm in part, and reverse in part.-2-

Silvey is a practicing member of the Sikh Dharma sect of the Hindu rel igion. His religion requ ires him not to cut his hair. In his verified complaint, Silvey allege d various Jefferson City Correctional Center (JCCC) officials denied him equal protection and his freed om of religion, by punishing him for his hair length, but not punishin g other in mates who have longer hair than he. He alleged Missouri Department o f Corrections (MDOC) Director Dora Schriro also was liablebecause Silvey had written her concerning his “treatment” at least five times, but received no response. He also alleged JCCC officer Gerald Henry used excessive force, in violation of the Eight h Ame ndment, when transferring Silvey between housing units, because Henr y deliberately pul led upward on Silvey’s hands while handcuffing them behind Silvey’s back, t earing a ligament in Silvey’s shoulder. On defendants’ motions, the Distric t Court dismissed Silvey’s claims as to Schriro, and granted summary judgment to the remaining defendants.

We review a grant of summary judgment de novo, applying the same standard as the district court. See Benson v. Northwest Airlines, Inc. , 62 F.3d 1108, 1111 (8th Cir. 199 5). We conclude that summary judgment was appropriate on Silvey’ s excessive force claim. We agree with the District Court that on Silvey's evidence no reasonabl e jury could find that Henry used force maliciously or sadistically to caus e harm or used more than de minimis force. See Huds on v. McMillian , 503 U.S. 1, 9-10 (199 2) (noting “de minimis” uses of physical force are necessarily excluded fro m Eighth Amendment’s prohibi tion against “cruel and unusual” punishment); Howard v. Ba rnett , 21 F.3d 868, 871-73 (8th Cir. 1994) (holding unnecessary and wanto n inflictio n of pain occurs when prison officials apply excessive force maliciously an d sadistically to cause harm; Eighth Amendment is not violated when prison official s apply force in good-faith effort to maintain or restore discipline).We do n ot analyze Silvey’s claim that the hair-length regulation violated th e 1 Relig ious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb, in light of th e Supreme Court’s June 25, 1997 decision declaring the RFRA to be unconstitutional. See City of Boerne v. Flores , No. 95-2074, 1997 WL 345322, at *3 (U.S. June 25 , 1997).
-3- Summary j udgment also was proper as to Silvey’s free exercise claim. Se e Hamilton v. Schriro , 74 F.3d 1545, 1551 (8th Cir.) (concluding MDOC’s hair-length regulation did

not violate Free Exercise Clause), cert. denied , 117 S. Ct. 193 (1996). 1

We conclude, however, that summary judgment was improper as to Silvey’ s equal protection claim. In his veri fied complaint allegations and deposition testimony, Silve y provided evidence that other inmates wore their hair longer than polic y per mitted, were clearly observable by prison officials, and were neither punished nor for ced to cut their hair. Defendants offered no contrary evidence, nor did they refute Silvey’s assertion that

he was treated dissimilarly because of his religion. See City of New Orleans v. Dukes , 427 U.S. 29 7, 303 (1976) (noting religion constitutes suspectclassification cate gory); Klinger v. Department of Corrections , 31 F.3d 727, 731, 733 (8th Cir. 1994) (noting Equal Prot ection Clause generally requires government to treat similarly situated people alike), cert. denied , 115 S. Ct. 1177 (1995); Stiles v. Blunt , 912 F.2d 260, 263 (8th Cir. 1990) (observing strict scrutiny review applies wher e cha llenged

classification affects suspect class; under that standard, classification i s uph eld only if it is necessary to promote compelling state interest), cert. denied , 49 9 U.S. 919 (1991). The dismissal of this claim as to Schriro also must be reversed, as Silvey’s p ro se allegation that he sent Schriro letters complaining about hi s unconstitutional treatment, liberally construed, states a claim that Schriro, as a supervisor, is liable for failing to act. See Estate of Davis v. Delo , No. 96-1896, 1997 WL 3 21614, at *8 (8th Cir. June 16, 1997) (affirming district court decision holdin g prison supervisor liable where super visor knew of correctional officer’s propensity for violence but failed to act); Ring v. First Interstate Mortgage, Inc. , 984 F.2d 924, 926-4-

(8th Cir. 1993) (Fed. R. Civ. P. 12(b)(6) dismissal standa rd of review); see also Haines v. Kerner , 404 U.S. 519, 520- 21 (1972) (per curiam) (noting pro se complaint entitled to liberal construction).

We do not consider Silvey’s claim, first raised on appeal, concerning th e conditions of JCCC’s barber facilities. See Nolte v. Pearson , 994 F. 2d 1311, 1315 (8th Cir. 1993). Finally, we reject Silvey’s a rgument that he should not have been required to pay the appellate filing fee pursuant to the Prison Litigation Reform Act (PLRA) , Pub. L. No. 104-134, § 804(a)(3), 110 Stat. 1321-73 (codified at 28 U.S.C.A. § 1915(b) (West Supp. 1997)), as Silvey filed his notice of appeal af ter the PLRA’s April 26, 1996 effective date. See In re Tyler , 110 F.3d 528, 529-30 (8th Cir. 1997).

Acc ordingly, we affirm the dismissal and the grant of summary judgment as to Silvey’s excessive force and free exercise claims, reverse as to his equal protectio n claim, and remand for further proceedings on that claim.

A true copy.

Attest:

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