United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 96-2787

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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Burless Ross, Lt., JCCC; Dave Dormire, * [UNPUBLISHED]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. *

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 Submitted: July 7, 1997

 Filed: July 16, 1997

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Before BOWMAN, WOLLMAN, and BEAM, Circuit Judges.

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PER CURIAM.

Phillip Silvey, a Missouri inmate, appeals from the District Court’s orders

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.
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Silvey is a practicing member of the Sikh Dharma sect of the Hindu religion. His

religion requires him not to cut his hair. In his verified complaint, Silvey alleged

various Jefferson City Correctional Center (JCCC) officials denied him equal protection

and his freedom of religion, by punishing him for his hair length, but not punishing

other inmates who have longer hair than he. He alleged Missouri Department of

Corrections (MDOC) Director Dora Schriro also was liable because 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 Eighth

Amendment, when transferring Silvey between housing units, because Henry

deliberately pulled upward on Silvey’s hands while handcuffing them behind Silvey’s

back, tearing a ligament in Silvey’s shoulder. On defendants’ motions, the District

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. 1995). 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

reasonable jury could find that Henry used force maliciously or sadistically to cause

harm or used more than de minimis force. See Hudson v. McMillian, 503 U.S. 1, 9-10

(1992) (noting “de minimis” uses of physical force are necessarily excluded from

Eighth Amendment’s prohibition against “cruel and unusual” punishment); Howard v.

Barnett, 21 F.3d 868, 871-73 (8th Cir. 1994) (holding unnecessary and wanton

infliction of pain occurs when prison officials apply excessive force maliciously and

sadistically to cause harm; Eighth Amendment is not violated when prison officials

apply force in good-faith effort to maintain or restore discipline).
We do not analyze Silvey’s claim that the hair-length regulation violated the

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Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb, in light of the

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).

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Summary judgment also was proper as to Silvey’s free exercise claim. See

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 verified complaint allegations and deposition testimony,

Silvey provided evidence that other inmates wore their hair longer than policy

permitted, were clearly observable by prison officials, and were neither punished nor

forced 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. 297, 303 (1976) (noting religion constitutes suspectclassification category); Klinger v. Department of Corrections, 31 F.3d 727, 731, 733

(8th Cir. 1994) (noting Equal Protection 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 where

challenged classification affects suspect class; under that standard, classification is

upheld only if it is necessary to promote compelling state interest), cert. denied, 499

U.S. 919 (1991). The dismissal of this claim as to Schriro also must be reversed, as

Silvey’s pro se allegation that he sent Schriro letters complaining about his

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 321614, at *8 (8th Cir. June 16, 1997) (affirming district court decision holding

prison supervisor liable where supervisor knew of correctional officer’s propensity for

violence but failed to act); Ring v. First Interstate Mortgage, Inc., 984 F.2d 924, 926
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(8th Cir. 1993) (Fed. R. Civ. P. 12(b)(6) dismissal standard 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 the

conditions of JCCC’s barber facilities. See Nolte v. Pearson, 994 F.2d 1311, 1315 (8th

Cir. 1993). Finally, we reject Silvey’s argument 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 after the PLRA’s April

26, 1996 effective date. See In re Tyler, 110 F.3d 528, 529-30 (8th Cir. 1997). 

Accordingly, 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 protection

claim, and remand for further proceedings on that claim.

A true copy.

Attest:

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