Joiner vs. Director, TDCJ-ID, (5th Cir. 1996)

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* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should n ot be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-40447 Summary Calendar CLAUDE E. JOINER, Plaintiff-Appellant, VERSUS DIRECTOR, TDCJ-ID, et al., Defendants-Appellees. Appeal from the United States District Court for the Eastern District of Texas (6:95-CV-707) July 30, 1996 Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.

PER CURIAM: * Claude Joiner appea ls the 28 U.S.C. § 1915(d) dismissal, as frivolous, of his state prisoner§§ 2000bb-2000bb-4. We vacate and remand.

I. Joiner is a Muslim. His grandmother ordered twenty cassette tapes so that he could learn Arabic in order to read the QurÂ’aan in Arabic. Mailroom officials at the prison refused to give him the tapes. The prison chaplain told him that he could buy the tapes but that they would have to be listened to in the chapel and would become the prisonÂ’s property. Two other inmates, Saahir and David Rodriguez, possess tapes and tape pla yers. 1 Saahir obtained his tapes through a court settlement, and Rodriguez is legally blind.

Joiner maintained that he was denied his tapes because the chaplain does not like the Muslim leaders whom he is following.

The prison policy is that inmates are prohibited from possessing tape players or cassette tapes. Chaplains keep tapes for inmates to listen to in the chapel. Copies of prison records were provided to the magistrate judge that contained a response by the prison chaplain to Jo iner§ 1915(d). Joiner filed a § 1915(d). The district court denied without any discussion JoinerÂ’s “Motion to Advise the Court” about RFRA.

II. An IFP claim that has no arguable basis in law or fact may be dismissed as frivolous. § 1915(d); Booker v. Koonce , 2 F.3d 114, 115 (5th Cir. 1993). Our review is for abuse of discretion.

I d. Joiner argues his district court allegati on that his First Amendment right to freedom of religion is violated by the prisonÂ’s refusal to permit him to poss ess the Arabic language tapes and a cassette tape player in his cell. He states that, just because inmates are permitted to teach each other Arabic, none is fluent enough to teach him the language. He contends that RFRA requires that the prison show a compelling interest in disallowing the tapes and a tape player in his cell and show that restricting them to the chapel is the least restrictive means of protecting that interest.

He maintains that, to learn Arabic, he must be able to listen to the tapes forty-five minutes a day and that letting him listen to them in his cell is the least restrictive means because it does not require prison staff to oversee him, as would frequent trips to the chapel. He adds that the prison has one school of Islamic teaching and that the prison’s Islamic chaplains do not recogn ize his leaders, thereby not allowing him to be the type of Muslim he wants to be. Inmates retain their First Amendment right to free exercise of religion. P owell v. Estelle , 959 F.2d 22, 23 (5th Cir.), c ert. denied , 506 U.S. 1025 (1992). Prior to the passage of RFRA, restrictions on the practice of religious beliefs had to be “reasonably related to legitimate penological interests.” M uhammad v. Lynaugh , 966 F.2d 901, 902 (5th Cir. 1992) (footnote omitted).

The § 2000bb-1. One of the purposes of RFRA is to § 2000bb(b); s ee Hicks v. Garner , 69 F.3d 22, 25 (5th Cir. 1995). Thus, whether the prison violated J oinerÂ’s religious rights under RFRA must be analyzed using the “substantial opportunity” test previously employed. S ee Hicks , 69 F.2d at 26. We have remanded cases to the district court for reconsideration of an inmateÂ’s allegations of relig ious interference in light of RFRA.

See, e.g., Jones v. Cockrell , No. 94-40188, slip op. at 5-6 (5th Cir. Feb. 6, 1995) (unpublished) (facial hair); Alabama & Coushatta Tribes v. Trustees of Big Sandy Indep. Sch. Dist. , No. 93-4365, slip op. at 2-4 (5th Cir. Mar. 31, 1994) (unpublished) (long hair).

Because the district court did not consider Joiner’s claims in light of RFRA, it is not certain whether the prison’s refusal to allow Joiner to possess cassette tapes and a tape pl ayer in his cell is a “substantial burden” on the exercise of his religious beliefs. Although Joiner is free to go to the chapel to listen to the tapes, whether this is the least restrictive means of furthering the prison’s presumable security interest in disallowing tapes and tape players in individual cells was not developed in the district court.

Because Joiner§ 1915(d) was an abuse of discretion. The judgment is VACATED, and the case is REMANDED for consideration under RFRA. We make no suggestion as to what decision the district court should make.

1 Joiner specifically indicates that he does not wish to pursue an equal protection claim, but that he cites these examples to indicate that the prison is not using the least restrictive means available

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