                       United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 97-1642
                                 ___________

Curtis Howard,                            *
                                          *
             Appellant,                   *
                                          *
      v.                                  *
                                          *
B.E. Collins, Assistant Warden,           *
Cummins Unit, Arkansas Department of *
Correction; A.J. Hall, Building Major,    * Appeal from the United States
Cummins Unit, Arkansas Department of * District Court for the
Correction; Bill Terry, Classification    * Eastern District of Arkansas.
Supervisor, Cummins Unit, Arkansas        *
Department of Correction; Lori Freeman, *        [UNPUBLISHED]
Ms., Classification Officer, Cummins      *
Unit, Arkansas Department of              *
Correction; D.W. Tate, Captain,           *
Cummins Unit, Arkansas Department         *
of Correction; Chester Cornell, Mental *
Health, Cummins Unit, Arkansas            *
Department of Correction,                 *
                                          *
             Appellees.                   *
                                     ___________

                        Submitted: November 4, 1997
                            Filed: November 17, 1997
                                ___________

Before McMILLIAN, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                             ___________
PER CURIAM.

      Curtis Howard, an Arkansas inmate, appeals the adverse grant of summary
judgment by the district court in this 42 U.S.C. § 1983 action. We affirm in part and
reverse and remand in part.

       Howard alleged that defendant members of a prison classification committee at
the Cummins Unit of the Arkansas Department of Correction (Cummins) had violated
his due process and equal protection rights by reassigning him from protective custody
to administrative segregation (ad seg) in November 1995, where he remained until he
was transferred out of Cummins in July 1996. Howard, who is African-American,
asserted he was placed in ad seg after a white inmate falsely accused Howard of
stealing the inmate’s “commissary coupon book.” Howard alleged that protective
custody consisted of 80-90% white inmates, and that defendants knew that white
inmates lie to get black inmates out of the protective custody barracks, and knew that
his white accuser had lied for this purpose. Howard further alleged defendants knew
placing him in ad seg subjected him to danger because, inter alia, he was forced to cell
with “known gang members,” even though he had previously been in an altercation
with gang members who accused him of being a “snitch.”

        Defendants moved for summary judgment, addressing only Howard’s due
process claim. The district court granted summary judgment, concluding that under
Sandin v. Conner, 115 S. Ct. 2293, 2302 (1995), Howard had failed to prove a liberty
interest in remaining in protective custody. The court also concluded Howard had
failed to make out an equal protection claim because he had failed to demonstrate that
he was similarly situated to any white inmates who were treated differently than him.

       We conclude that the district court properly granted summary judgment in favor
of defendants on Howard’s due process claim, as Howard did not allege how his eight-
month stint in ad seg presented an atypical and significant hardship in relation to the

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ordinary incidents of prison life at Cummins. See Sandin, 115 S. Ct. at 2300-01;
Freitas v. Ault, 109 F.3d 1335, 1338 (8th Cir. 1997); Wycoff v. Nichols, 94 F.3d 1187,
1188, 1190 (8th Cir. 1996). We also conclude Howard’s failure-to-protect allegations
were insufficient to create an inference defendants were aware of an identifiable serious
risk to Howard’s safety. See Farmer v. Brennan, 114 S. Ct. 1970, 1979 (1994); Davis
v. Scott, 94 F.3d 444, 446-47 (8th Cir. 1996).

        We conclude the district court erred, however, in dismissing sua sponte
Howard’s equal protection claim. Howard’s allegation, liberally construed, charges
that defendants are involved in a conspiracy with white protective custody inmates for
the purpose of creating a segregated white protective custody unit. A policy of
deliberate racial segregation of prisoners could constitute an equal protection violation.
See Lee v. Washington, 390 U.S. 333, 334 (1968) (affirming determination that
Alabama statutes requiring racial segregation in prisons violate Fourteenth
Amendment); Harris v. Greer, 750 F.2d 617, 618-19 (7th Cir. 1984) (allegation that
prison officials repeatedly denied black prisoner’s request for white cell mate while in
protective custody stated equal protection claim); cf. Foster v. Wyrick, 823 F.2d 218,
221 (8th Cir. 1987) (absent allegation of intentional discrimination, equal protection
claim not stated by allegation that facially neutral prison employment practices had
discriminatory impact on black inmates). Thus, we cannot say there is no set of facts
Howard could prove in support of his equal protection claim that would entitle him to
relief. See Carney v. Houston, 33 F.3d 893, 894 (8th Cir. 1994) (per curiam).

      We conclude that the district court acted within its discretion when it denied
Howard’s motion for appointment of counsel, see Abdullah v. Gunter, 949 F.2d 1032,
1035 (8th Cir. 1991) (standard of review; factors to be considered), cert. denied, 504
U.S. 930 (1992), and decided defendants’ summary judgment motion without
compelling defendants to comply with Howard’s discovery requests, or allowing
Howard to amend his complaint, see Seltzer-Bey v. Delo, 66 F.3d 961, 964 (8th Cir.
1995) (standard of review).

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A true copy.

      Attest:

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




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