UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-20454
Summary Calendar
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JOHN W. WINSLOW,
Plaintiff - Appellant,
versus
CHARLES SMITH; LINDA PATTERSON; S. O. WOODS; JOHN DOE; M.
COUNTZ, Warden; R. BELANGER, Asst. Warden; R. JONES, Asst.
Warden; L. HEUSZEL, Asst. Warden; G. PIERSON, Asst. Warden; H.
TERRY, Asst. Warden; R. HEINSOHN; M. HARDING; D. SINGLETARY;
M. DIXON; K. BROOKS; D. FASSETT; C. CHILES; J. BLOODGOOD,
Defendants - Appellees.
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Appeal from the United States District Court for the
Southern District of Texas
(CA-H-94-1777)
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August 22, 1996
Before DAVIS, WIENER and BENAVIDES, Circuit Judges.
PER CURIAM:*
Appellant John Winslow appeals from the dismissal of his §
1983 claim as frivolous under 28 U.S.C. § 1915(d). We vacate the
dismissal and remand to the district court.
*
Pursuant to Local Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in Local Rule 47.5.4.
Winslow, a prison inmate, filed this pro se civil rights claim
against several members of the Texas Department of Criminal
Justice-Institutional Division alleging violation of his First
Amendment rights. Winslow alleges that certain incoming mail items
have been illegally censored. Specifically, in his complaint
Winslow alleged that he was denied: a folder from Midac Corp., a
catalog of chromatography supplies, and a catalog from Publications
Pharmacia Biotechnology. In response to the district court's order
for a more definite statement, Winslow explained that prison
officials excluded the materials on the ground that they contained
either chemical formulas or information regarding the manufacture
of explosives, weapons, or drugs. Winslow, however, contends that
he has received material from the companies previously and that
they list supplies that can be used in genetics and biological
research. Furthermore, he denies that the catalogs contain
chemical formulas. Additionally, Winslow identified other items
denied to him including: a catalog from Tucker Electronic, material
from Global Tech International, a video cassette listing used
electronic equipment, a pen from Computer World, a folder from
Marietta Spectrum Chemical and Safety Products, a data base
programming and design publication, and a poster.
The district court determined that Winslow's complaint had no
arguable basis in law and dismissed it as frivolous under 28 U.S.C.
§ 1915(d) prior to service on the defendants. The district court
stated that the prison's interests in maintaining order and
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security were implicated, that the prison regulations were
reasonably related to legitimate penological interests, and that
the pleadings did not show arbitrary or capricious action by prison
officials. Winslow appealed.
We review a § 1915(d) dismissal for an abuse of discretion.
Denton v. Hernandez, 504 U.S. 25, 33-35 (1992).
It is well-settled that prisoners retain only those First
Amendment rights of speech that are consistent with their status as
prisoners or with the legitimate penological objectives of the
prison. Hudson v. Palmer, 468 U.S. 517, 523 (1984). Regulations
affecting the sending of publications to prisoners are scrutinized
under the reasonableness standard of Turner v. Safley, 482 U.S. 78,
89-91 (1987). The proper inquiry is whether the regulations are
reasonably related to legitimate penological interest. Thornburgh
v. Abbott, 109 S. Ct. 1874, 1877 (1989) (quoting Turner).
Applying this standard, we are not convinced on this record
that the exclusion of all of the items at issue was necessitated by
security considerations. See Turner v. 5 Unknown Members, No. 93-
2726 (5th Cir. Apr. 13, 1994) (unpublished) (holding first
amendment challenge to ban on college directory did not lack
arguable basis in law or fact); Mann v. Smith, 796 F.2d 79, 82-83
(5th Cir. 1986) (holding ban on newspapers and magazines
represented an exaggerated response to legitimate security needs).
Because the defendants have not been served, they have not asserted
that exclusion of all of the materials was essential to maintain
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institutional security. We conclude that the district court
prematurely dismissed the claim as frivolous. Consequently, we
VACATE the dismissal and REMAND to the district court to develop
whether the prohibition of the materials served a legitimate
penological interest.
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