___________

                                   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) 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
impairments.1   Dahm moved for summary judgment on the basis of qualified
immunity, which was denied by the district court as to the equal protection
claim.2   This appeal followed.


     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, 

, 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, 

, 731 (8th Cir. 1994), cert. denied,

(1995).3   Thus, the issue in dispute is whether Hansen is
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, 

, 271 (8th Cir.) (inmates in wheelchairs are equally capable, and thus
similarly situated, to nondisabled inmates for the purpose of watching
television), cert.




          1
        Hansen had been provided with an adapted telephone in
September 1994, but requested a superior adapted telephone in June
1995.
      2
      Hansen's § 1983 suit also alleged violations of the Eighth
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.
          3
        Although protected by statutory enactments such as the
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., 

, 442
(1985) (mentally retarded not a constitutionally protected suspect
class); More v. Farrier, 

, 271 (8th Cir.), cert.
denied, 

(1993) (physically disabled not suspect
class).

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denied, 

(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.




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