IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-11161
Summary Calendar
CHARLES A. WATSON,
Plaintiff-Appellant,
versus
TEXAS DEPARTMENT OF
CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Price Daniel Unit; Et Al.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 97-CV-387
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June 17, 1999
Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
Charles A. Watson, Texas prisoner # 738898, argues that the
magistrate judge erred in dismissing his 42 U.S.C. § 1983
complaint in which Watson alleged that his legal mail was opened
outside of his presence by prison officials and that he has been
denied publications which he has purchased, or has received them
in a damaged condition.
*
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that this opinion should not be published and is not precedent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.
No. 98-11161
-2-
We have reviewed the record and Watson’s brief, and find
that the magistrate judge did not err in determining that Watson
had failed to state a constitutional claim with respect to the
the opening of his legal mail outside his presence because he
failed to show that his legal position was prejudiced by the
action of the defendants. See Brewer v. Wilkinson, 3 F.3d 816,
825-26 (5th Cir. 1993). We have further determined that Watson’s
allegations that in September 1997, he was denied a publication
containing sexually graphic materials fails to state a
constitutional claim because the court has found that prison
officials have a legitimate interest in prohibiting prisoners
from receiving materials containing explicit sexual activity
because it would promote deviant sexual behavior in the prison
population. See Thomspson v. Patteson, 985 F.2d 202, 206 n.1
(5th Cir. 1993).
The magistrate judge also did not err in dismissing Watson’s
claim concerning the denial of a publication arriving in October
1997, accompanied by an invoice, because Watson failed to exhaust
his administrative remedies with respect to this claim. See 28
U.S.C. § 1997e(a).
We have determined, however, that the magistrate judge
prematurely dismissed Watson’s claims with regard to the denial
of the comic books because the record does not reflect whether
the prohibition of the comic books serves a legitimate
penological interest. See Procunier v. Martinez, 416 U.S. 396,
413 (1974); Adams v. Gunnell, 729 F.2d 362, 367 (5th Cir. 1984).
No. 98-11161
-3-
The dismissal of Watson’s claim concerning the comic books
is VACATED and the case is REMANDED to the district court for
further consideration of this claim. The magistrate judge’s
judgment is AFFIRMED in all other respects.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.