R. Sterling/Sayyed v. James Banks

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-1784
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Raque Sterling/Sayyed, *
*
Appellant, *
*
v. *
* Appeal from the United States
James Banks, Assistant Warden, * District Court for the Eastern
Varner Super Max, ADC; Ray Hobbs, * District of Arkansas.
Assistant Chief, Deputy Director, *
Arkansas Department of Correction; * [UNPUBLISHED]
T. Rochelle, Classification Officer, *
Varner Super Max, ADC; E. Scott, *
Classification Officer, Varner Super *
Max, ADC; J. W. Via, Captain, *
Varner Super Max, ADC; Ricky *
Toney, Warden, Varner Super *
Max, ADC, *
*
Appellees. *
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Submitted: June 12, 2003
Filed: August 6, 2003
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Before BOWMAN, BYE, and SMITH, Circuit Judges.
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PER CURIAM.
Arkansas inmate Raque Sterling/Sayyed (Sayyed) appeals the district court’s
preservice dismissal of his 42 U.S.C. § 1983 action. Sayyed alleged in his pro se
complaint that defendants denied him due process in connection with an incident
report that resulted in the loss of seven days of commissary, visitation, and telephone
privileges, and a later classification hearing that resulted in his demotion from
Incentive Level Three to Incentive Level One. He also alleged that he was denied a
subscription to the newspaper of his choice in violation of the First Amendment and
equal protection.
Upon de novo review, see Cooper v. Schriro, 189 F.3d 781, 783 (8th Cir. 1999)
(per curiam), we conclude the following. Sayyed’s claim that he was denied due
process fails for lack of allegations showing that his reduction to Level One status
and the temporary loss of certain privileges amounted to an atypical and significant
hardship. See Sandin v. Conner, 515 U.S. 472, 484 (1995) (protected liberty interests
are generally limited to freedom from restraint which imposes atypical and significant
hardship on inmate in relation to ordinary incidents of prison life); cf. Kennedy v.
Blankenship, 100 F.3d 640, 642 n.2, 643 (8th Cir. 1996) (placement in punitive
isolation was not atypical and significant deprivation even though prisoner faced
restrictions in mail, telephone, visitation, commissary, and personal-possession
privileges). His equal protection claim also fails because he did not allege that he was
treated differently than similarly situated inmates. See Weiler v. Purkett, 137 F.3d
1047, 1051-52 (8th Cir. 1998) (en banc) (elements of equal protection claim). Thus,
we affirm the dismissal of the due process and equal protection claims against all
defendants, and we modify the dismissal of the claims as to T. Rochelle, E. Scott, and
J. Via to be with prejudice.
The district court dismissed the First Amendment claim because Sayyed had
not alleged who denied him his newspaper of choice or who was responsible for the
policy limiting him to a particular newspaper. However, the attachments to Sayyed’s
complaint--which he pointed to in his objections to the magistrate judge’s report--
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show that defendants Rick Toney and Ray Hobbs were involved in implementing and
enforcing the newspaper policy. We therefore conclude that Sayyed stated a First
Amendment claim against Toney and Hobbs. See Turner v. Safley, 482 U.S. 78, 89
(1987) (inmates have First Amendment right to receive mail, but right may be limited
by prison regulations that are reasonably related to legitimate penological objectives).
Thus, we reverse the dismissal of this claim as to these defendants and remand for
further proceedings. See Cooper, 189 F.3d at 784 (reversing § 1915A dismissal of
inmate’s First Amendment claim that he was denied access to printed materials,
including “all magazines” and legal and religious materials; given allegation that
prisoner was denied publications, prison was obligated to proffer legitimate reason
for decision to deny these materials).
Accordingly, we affirm in part with the above-noted modification, reverse in
part, and remand.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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