IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-40173
Summary Calendar
BOYCE LEE GOWAN, II,
Plaintiff-Appellant,
versus
WAYNE SCOTT; KENNY, Officer;
MATA, Sergeant; MOORE, Lieutenant,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. G-96-CV-622
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August 20, 1998
Before DAVIS, DUHÉ and PARKER, Circuit Judges.
PER CURIAM:*
Boyce Lee Gowan, II, Texas prisoner # 508559, appeals the
district court’s sua sponte dismissal of his 42 U.S.C. § 1983
complaint as frivolous. Gowan contends that the defendants
violated his right to practice his religion when they ordered him
to clean his living area even though it was a high holy day.
A 42 U.S.C. § 1915(e)(2) dismissal is reviewed for abuse of
discretion. Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir.
*
Pursuant to 5TH CIR. R. 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that this opinion should not be published and is not precedent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 5TH CIR.
R. 47.5.4.
1997). Restrictions on the practice of religious beliefs must be
"reasonably related to legitimate penological interests."
Muhammad v. Lynaugh, 966 F.2d 901, 902 (5th Cir. 1992) (footnote
omitted). The following factors are relevant in determining
whether a prison regulation infringes on an inmate’s
constitutional rights: “(1) is there a valid, rational
correlation between the prison regulation and the legitimate
governmental interest advanced; (2) are there alternative means
of exercising the rights that remain available to the inmates;
and (3) what is the impact of an accommodation in favor of the
inmate on prison staff, other inmates, and the allocation of
prison resources generally.” Muhammad, 966 F.2d at 902 (quoting
Turner v. Safley, 482 U.S. 78, 89-90 (1987)).
The magistrate judge determined that Gowan was responsible
for the mess in his cell, but Gowan steadfastly maintained that
Officer Kenny made the mess. Although Gowan’s summary of the
grievances suggest that Officer Kenny acted pursuant to “AD
3.72,” neither the grievances nor a copy of “AD 3.72" are in the
record, and Gowan denies that he was not in compliance and that
Officer Kenny was acting pursuant to “AD 3.72.” We are persuaded
that at this stage of the proceedings, the record is inadequate
to determine why Officer Kenny entered Gowan’s area when she did,
whether Officer Kenny was acting pursuant to a prison regulation,
and whether an accommodation could have been made. Siglar v.
Hightower, 112 F.3d 191, 193 (5th Cir. 1997). After additional
factual development, dismissal may be appropriate but at this
time it is premature. Accordingly, we VACATE the district
court's judgment dismissing the suit as frivolous and REMAND the
case for further proceedings.
No. 98-40173
-3-
VACATED AND REMANDED.