                         United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 96-2972
                                   ___________

William Wentworth Foster,               *
                                        *
            Appellant,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Eastern District of Missouri.
Paul K. Delo, Superintendent,           *
                                        *      [PUBLISHED]
            Appellee.                   *
                                   ___________

                          Submitted: October 7, 1997
                              Filed: November 17, 1997
                                  ___________

Before RICHARD S. ARNOLD, Chief Judge, McMILLIAN, and BEAM, Circuit
      Judges.
                          ___________

PER CURIAM.

       William Foster, an African-American Missouri inmate, appeals the district
court’s grant of summary judgment for defendant Paul Delo in this 42 U.S.C. § 1983
action. We affirm in part and reverse and remand in part.

      Foster alleged that Delo, who was the prison superintendent at the Potosi
Corrections Center (PCC), violated the Equal Protection Clause of the Fourteenth
Amendment by selectively enforcing a January 1991 PCC policy (the policy) requiring
inmates to purchase electronic equipment from the PCC canteen. Specifically, he
claimed Delo had allowed white inmates to receive electronic equipment from outside
sources, but had denied Foster’s repeated requests to purchase a television and stereo
from an outside retail store. Foster also claimed Delo’s denial of permission was in
retaliation for Foster’s numerous lawsuits against Delo.

       Delo moved for summary judgment, attaching his own affidavit, in which he
attested that he had allowed certain identified inmates to receive electronic equipment
pursuant to a “grandfather” exception for inmates who, before the policy went into
effect, had already ordered electronic equipment from an outside source, or had
transferred into PCC with unauthorized equipment. Delo attested he denied Foster’s
request because it did not fit within any recognized exception to the policy. In
response, Foster provided his own affidavit, attesting that he had talked to four white
inmates, including two identified by Delo as being allowed to transfer into PCC with
equipment they already possessed. Foster recited the details of his conversation with
these inmates, which revealed that, since the policy went into effect, each had been
allowed to receive electronic equipment he had not previously possessed or ordered.

       The district court granted summary judgment in favor of Delo, concluding Foster
had failed to demonstrate the white inmates were similarly situated, or that Delo denied
Foster’s requests in retaliation for his numerous lawsuits against prison officials. The
district court subsequently denied Foster’s motion for reconsideration.

        We conclude the district court properly granted summary judgment in favor of
Delo on Foster’s retaliation claim, as Foster did not produce evidence that his request
for a new stereo and television would not have been denied but for the motive of
retaliation for his filing numerous lawsuits against prison officials. See Goff v. Burton,
7 F.3d 734, 737 (8th Cir. 1993), cert. denied, 512 U.S. 1209 (1994).

     We conclude the district court erred, however, in granting Delo summary
judgment on Foster’s equal protection claim. Foster submitted an affidavit relating the

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conversations he had had with four white inmates, each of whom indicated he had
received more favorable treatment from Delo than Foster had; these statements would
create a genuine issue as to Delo’s explanation of the exceptions granted to two white
inmates, and as to exceptions allowed other white inmates. See Klinger v. Department
of Corrections, 31 F.3d 727, 731 (8th Cir. 1994) (for equal protection claim, plaintiff
must allege different treatment of similarly situated individuals), cert. denied, 115 S.
Ct. 1177 (1995). We conclude Foster’s further attestations, that he could not obtain
these inmates’ affidavits because they feared retaliation from prison officials,
sufficiently demonstrated his inability to present opposing evidence, warranting denial
of summary judgment. See Fed. R. Civ. P. 56(f) (when affidavits of party opposing
summary judgment reflect that party cannot “present by affidavit facts essential to
justify the party’s opposition,” court may refuse summary judgment application, order
continuance, or make other order); La Batt v. Twomey, 513 F.2d 641, 650 (7th Cir.
1975) (reversing grant of summary judgment where prisoner submitted unverified
response making several material offers of proof and stating that “the strenuous security
system within the prison prevented him from securing affidavits”); cf. Nickens v.
White, 622 F.2d 967, 970 (8th Cir.) (affirming grant of summary judgment to
defendants where plaintiff prisoner stated only that he could not gather information
because he was imprisoned), cert. denied, 449 U.S. 1018 (1980).

       We conclude the district court acted within its discretion when it denied Foster’s
motion for appointment of counsel. See Abdullah v. Gunter, 949 F.2d 1032, 1035 (8th
Cir. 1991), cert. denied, 504 U.S. 930 (1992). If on remand, however, Foster renews
his motion for appointment of counsel, the district court is free to consider it. We also
deny Foster’s motion to supplement the record on appeal. See Dakota Indus., Inc. V.
Dakota Sportswear, Inc., 988 F.2d 61, 63 (8th Cir. 1993).

        Accordingly, we affirm the grant of summary judgment to Delo on Foster’s
retaliation claim, reverse the grant of summary judgment on Foster’s equal protection
claim, and remand to the district court for further proceedings.

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A true copy.

      Attest:

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




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