                     United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                ___________

                                No. 02-2403
                                ___________

Larry Wayne Jones,                    *
                                      *
            Appellant,                *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * Eastern District of Arkansas.
J T Banks, Assistant Warden, Varner   *
Super Max, ADC; Rick L. Toney,        *      [UNPUBLISHED]
Warden, Varner Super Max, ADC;        *
Ray Hobbs, Deputy Director, Arkansas *
Department of Correction; Larry D.    *
May, Deputy Director, Arkansas        *
Department of Correction; Randall E. *
Manus, Assistant Warden, ADC/Varner *
Supermax,                             *
                                      *
            Appellees.                *
                                 ___________

                        Submitted: November 15, 2002
                            Filed: November 19, 2002
                                 ___________

Before McMILLIAN, FAGG, and BOWMAN, Circuit Judges.
                            ___________

PER CURIAM.
       Arkansas inmate Larry Wayne Jones appeals the District Court’s1 dismissal of
his 42 U.S.C. § 1983 action following a pretrial evidentiary hearing. Having carefully
reviewed the record, see Johnson v. Bi-State Justice Ctr., 12 F.3d 133, 135-36 (8th
Cir. 1993) (noting that where only the inmate testifies during pretrial evidentiary
hearing held to determine whether pro se inmate’s nonfrivolous § 1983 damages
claims warrant jury trial, applicable standard is whether the action would survive Fed.
R. Civ. P. 50(a) motion for judgment as matter of law); Johnson v. Cowell Steel
Structures, Inc., 991 F.2d 474, 478 (8th Cir. 1993) (de novo review of entry of
judgment as matter of law), we affirm.

       Jones sued certain Varner Supermax Unit (VSM) and Arkansas Department of
Correction (ADC) officials, claiming violations of his rights under the First
Amendment and the Equal Protection Clause. His claims were based on certain VSM
policies that were applied to him: until inmates reached the higher incentive levels
at VSM based on their good behavior, they could not possess more than two primary
religious texts or receive through the mail secondary religious materials, and VSM
inmates could not send out commercially prepared greeting cards.

       As for Jones's claims, contrary to his assertions on appeal, the District Court
conducted the hearing and analyzed the evidence presented pursuant to the standards
set out in Johnson v. Bi-State, 12 F.3d at 135-36. We also agree with the District
Court’s analysis of Jones’s claim under the Establishment Clause, see Good
News/Good Sports Club v. Sch. Dist. of Ladue, 28 F.3d 1501, 1508 (8th Cir. 1994),
cert. denied, 515 U.S. 1173 (1995). Nor do Jones’s testimony and the grievances he
filed show, as a matter of law, that the defendants substantially burdened his right to
practice his religion by applying the challenged restrictions to him, see Weir v. Nix,


      1
        The Honorable J. Thomas Ray, United States Magistrate Judge for the Eastern
District of Arkansas, to whom the case was referred for final disposition by consent
of the parties pursuant to 28 U.S.C. § 636(c) (2000).
                                          -2-
114 F.3d 817, 820 (8th Cir. 1997). Jones also cannot resurrect his Equal Protection
Clause claim on appeal because he specifically stated at the hearing that he was using
defendants’ inconsistent application of the religious-materials restrictions solely to
show they were not based on a legitimate penological objective. Finally, we agree that
the evidence concerning the greeting cards failed to support a violation of his right
to free speech, see Smith v. Delo, 995 F.2d 827, 829 (8th Cir. 1993), cert. denied, 510
U.S. 1052 (1994).

      Accordingly, we affirm. See 8th Cir. R. 47B.

      A true copy.

             Attest:

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




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