               Not for Publication in West's Federal Reporter
              Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                       For the First Circuit


No. 03-2431

                             STEVEN J. ROY,

                        Plaintiff, Appellant,

                                     v.

                        PHIL STANLEY, ET AL.,

                       Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF NEW HAMPSHIRE

         [Hon. Joseph A. DiClerico, U.S. District Judge]


                                  Before

                       Boudin, Chief Judge,
              Torruella and Lynch, Circuit Judges.



     Steven J. Roy on brief pro se.
     Peter W. Heed, Attorney General, and Andrew B. Livernois,
Assistant Attorney General on brief for appellees.



                            October 1, 2004
      Per Curiam.     Plaintiff Steven J. Roy appeals pro se from the

district court's denial of his motion for a preliminary injunction

on the ground that he had failed to demonstrate a likelihood of

succeeding on the merits of his claims under 42 U.S.C. § 1983.                             On

appeal, Roy      argues   that    the       district    court      erred      in    denying

preliminary injunctive relief as to his claims that the warden and

other staff of the New Hampshire State Prison for Men ("NHSP"),

where he is incarcerated, violated his First Amendment, Due Process

and   Equal     Protection      rights       by    cutting        off   his    telephone

communication      with   the    software         company    which      he    ran       before

becoming incarcerated ("the Company").1

            "The criteria for the grant of a preliminary injunction

are the familiar four: likelihood of success, risk of irreparable

harm, the       balance   of    the    equities      and    the    public     interest."

Langlois v. Abington Housing Authority, 207 F.3d 43, 47 (1st Cir.

2000). "Likelihood of success is the touchstone of the preliminary

injunction inquiry." Philip Morris, Inc. v. Harshbarger, 159 F.3d

670, 674 (1st Cir. 1998).        The standard of review "depends upon the

issue under consideration.            Generally speaking, pure issues of law

(e.g.,    the   construction      of    a    statute)      are    reviewed         de   novo,




      1
       In his brief, Roy states that he is "withdraw[ing]" his
appeal from the denial of preliminary injunctive relief as to his
claim that he has been "blacklisted" from computer jobs in
retaliation for his previous litigation against defendants.

                                            2
findings of    fact   for   clear   error,   and   'judgment   calls'   with

considerable deference depending upon the issue." Id.

          We agree with the district court that Roy has failed to

show likelihood of success on the merits of any of the claims

pursued in this appeal.     In order to succeed on his § 1983 claims,

Roy must show violation of a right secured by federal law. Fournier

v. Reardon, 160 F.3d 754, 756 (1998).        Roy appeals from the denial

of preliminary injunctive relief as to his claims that the prison

restriction on his telephone access violated his rights under the

First Amendment, Due Process Clause, and the Equal Protection

Clause.

          I. First Amendment

          Roy argues that the district court erred in denying

preliminary injunctive relief on his claim that by cutting off

telephone access to the Company and "others interested in receiving

his intellectual property," defendants violated his First Amendment

rights to free speech and free association.            We agree with the

district court's conclusion that "Roy's stated desire to engage in

telephone communications for the purpose of generating revenue and

goodwill for his outside business, and to independently license his

intellectual    property      are     not     constitutionally-protected

interests." Magistrate Judge's Report and Recommendation, 9/3/03,

p. 34.




                                    -3-
             "Prisoners have no per se constitutional right to use a

telephone." United States v. Footman, 215 F.3d 145, 155 (1st Cir.

2000); see also Valdez v. Rosenbaum, 302 F.3d 1039, 1048 (9th Cir.

2002)    (characterizing      First   Amendment     right   as   the     right       to

communicate    with   persons    outside       prison   walls    and    use     of    a

telephone as merely one "means of exercising that right"); Pope v.

Hightower, 101 F.3d 1382, 1385 (11th Cir. 1996) (characterizing

First    Amendment    right    at     issue    in   challenge     to     telephone

restrictions    as    the   "right     to     communicate   with       family    and

friends"); Benzel v. Grammar, 869 F.2d 1105, 1108 (8th Cir. 1989)

(stating that "[a] prisoner has no right to unlimited telephone

use").    Moreover, "a prisoner has no recognized right to conduct a

business while incarcerated." French v. Butterworth, 614 F.2d 23,

24 (1st Cir. 1980).     Having failed to identify a First Amendment

right on which the challenged restriction impinges, Roy has not

demonstrated a likelihood that he would succeed on the merits of

that claim.

            II. Due Process

            Roy appeals from the denial of a preliminary injunction

on his second claim in his amended complaint, that the telephone

restrictions deprived him of a liberty interest in "continuing to

preserve his beneficial interest in [the Company]," without due

process. Amended Complaint, ¶ 67.               "[A] prisoner retains [no]

unrestricted right under the fourteenth amendment to operate a


                                       -4-
business." French, 614 F.2d at 25.                  The Supreme Court has held that

"States may under certain circumstances create liberty interests

which are protected by the Due Process Clause. But these interests

will be generally limited to freedom from restraint which . . .

imposes atypical and significant hardship on the inmate in relation

to the ordinary incidents of prison life." Sandin v. Conner, 515

U.S. 472, 484 (1995).

                 Roy has not demonstrated a likelihood of establishing

that such a liberty interest has been created in this case.                            Roy

has not shown that restrictions barring prisoners from running a

business from prison are atypical, and "an inmate's subjective

expectations are not dispositive of the liberty-interest analysis."

Dominique v. Weld, 73 F.3d 1156, 1160 (1st Cir. 1996). Roy suggests

that       the   fact   that    he    had   communicated        with   the   Company    by

telephone        for    eight     years     prior    to   the    imposed     restriction

establishes        a    liberty      interest.        However,    a    change   to   more

restrictive (but not "atypical") conditions of confinement does not

alone create a liberty interest. See id. (holding that prisoner's

removal from work release program and transfer to medium security

facility did not meet Sandin standard).2


       2
       Roy also argues that an alleged settlement agreement entered
into with defendants in 1995, following related litigation, created
a liberty interest, but he fails to show a likelihood of succeeding
on that claim.      The district court found that, in the 1995
settlement, "NHSP allowed Roy to resume his telephone access to the
Company and his business friends, but did not exempt him from its
prohibition against inmates conducting business while incarcerated,

                                             -5-
           The district court, in declining to dismiss the second

claim of the amended complaint for failure to state a claim,

suggested that a prohibition on running a business which did not

recognize "exceptions for occasional communications necessary to

protect property legitimately acquired prior to incarceration,"

might be "atypical" under Sandin. However, we need not decide that

issue because Roy does not challenge the telephone restrictions on

that basis. Instead, he claims that preventing him from continuing

on an ongoing basis to dictate software to the Company over the

telephone deprives him of a liberty interest without due process.

He has failed to show a likelihood of succeeding on the merits of

that claim.

           III. Equal Protection Claim

           Roy     appeals    from   the     district   court's    denial   of

preliminary      injunctive   relief    on    his   claim   that   his   equal

protection rights were violated because the prison prohibits him

from selling his intellectual property while allowing other inmates

to sell their handmade products through the prison's "hobbycraft"

program.   Roy has not claimed to be part of a "suspect class." And,

as discussed above, prisoners do not have               a fundamental right

either to telephone access or to conduct a business from prison.



nor did NHSP agree to permit Roy to receive compensation for his
communications." 9/3/03 Report and Recommendation, pp. 5 - 6. Roy
has not shown that that finding was clearly erroneous.


                                       -6-
           Since there is no suspect classification here
           involved, nor any deprivation of fundamental
           rights, the ordinary equal protection test is
           extremely deferential. The standard formula
           is that a non-suspect classification is
           unconstitutional only if no legitimate basis
           can be imagined to support it. And "support"
           means only that a legislature . . . could
           provide a rational basis for the choice.


Beauchamp v. Murphy, 37 F.3d 700, 707 (1st Cir. 1994).

           We agree with the district court that "allow[ing] inmates

to receive compensation for their works sold through an approved

and prison-supervised program is readily distinguishable from Roy's

desire to engage in unsupervised outside business activities."

9/3/03   Report   and   Recommendation,   p.   20,   n.5.     Defendants'

testimony at the first preliminary injunction hearing articulated

a rationale for the rule that easily satisfies the "rational basis"

test. See 1/14/03 Report and Recommendation, p. 8.          Roy has failed

to demonstrate a likelihood that he could prevail on the merits of

his equal protection claim.

           The district court's denial of preliminary injunctive

relief is affirmed.




                                  -7-
