IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-40447
Summary Calendar
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CLAUDE E. JOINER,
Plaintiff-Appellant,
VERSUS
DIRECTOR, TDCJ-ID, et al.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
(6:95-CV-707)
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July 30, 1996
Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Claude Joiner appeals the 28 U.S.C. § 1915(d) dismissal, as
frivolous, of his state prisoner’s lawsuit filed pursuant to the
Religious Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C.
§§ 2000bb-2000bb-4. We vacate and remand.
*
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should not be published and is not precedent except under the limited circumstances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.
I.
Joiner is a Muslim. His grandmother ordered twenty cassette
tapes so that he could learn Arabic in order to read the Qur’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 prison’s property. Two other inmates, Saahir and David
Rodriguez, possess tapes and tape players.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 Joiner’s request. According to the
magistrate judge, the response included a copy of a 1977 consent
decree from the Southern District of Texas in a class-action
lawsuit between Muslim inmates and the Texas prison system in Brown
v. Beto, C.A. # 69-H-74. The decree requires prison officials to
“[a]llow inmates to speak and teach the Islamic or Arabic language
without discouragement, prohibition or other disciplinary action.”
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.
2
Id. The response also contained an affidavit from Alex Taylor,
Regional Chaplaincy Coordinator, stating that “it is common
practice at TDCJ units where there are practicing Moslems, an
effort is made to instruct Moslem inmates in the Arabic language,
as to reading and speaking in said language.” Id.
The magistrate judge noted that the Supreme Court has
recognized that limits may be placed on the religious rights that
must be afforded to inmates and that, if a prison regulation
impinges on an inmate’s constitutional rights, it must be reason-
ably related to legitimate penological interests. The magistrate
judge determined that, because the TDCJ permits inmates to learn
the Arabic language by listening to religious tapes, Joiner’s suit
should be dismissed pursuant to 28 U.S.C. § 1915(d). Joiner filed
a “Motion to Advise the Court” that the state had not “met the
compelling interest test or the least restrictive means test as
required by the R.F.R.A.” Joiner also filed objections to the
magistrate judge’s report and recommendation, calling the court’s
attention to the applicability of RFRA. After de novo review, the
court adopted the magistrate judge’s recommendation and dismissed
Joiner’s suit with prejudice pursuant to § 1915(d). The district
court denied without any discussion Joiner’s “Motion to Advise the
Court” about RFRA.
II.
3
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. Id.
Joiner argues his district court allegation that his First
Amendment right to freedom of religion is violated by the prison’s
refusal to permit him to possess 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 recognize 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. Powell v. Estelle, 959 F.2d 22, 23 (5th Cir.), cert.
denied, 506 U.S. 1025 (1992). Prior to the passage of RFRA,
restrictions on the practice of religious beliefs had to be
4
“reasonably related to legitimate penological interests.” Muhammad
v. Lynaugh, 966 F.2d 901, 902 (5th Cir. 1992) (footnote omitted).
The “legitimate penological interest” test used by the district
court in the instant case is not controlling, because Joiner
alleged that the defendants violated RFRA. RFRA prohibits the
government from placing a substantial burden on the exercise of
religion except when it is done “in the least restrictive means”
that is “in furtherance of a compelling governmental interest.” 42
U.S.C. § 2000bb-1. One of the purposes of RFRA is to “restore the
compelling interest test as set forth in Sherbert v. Verner, 374
U.S. 398 (1963), and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to
guarantee its application in all cases where free exercise of
religion is substantially burdened.” 42 U.S.C. § 2000bb(b); see
Hicks v. Garner, 69 F.3d 22, 25 (5th Cir. 1995).
Thus, whether the prison violated Joiner’s religious rights
under RFRA must be analyzed using the “substantial opportunity”
test previously employed. See Hicks, 69 F.2d at 26. We have
remanded cases to the district court for reconsideration of an
inmate’s allegations of religious 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
5
light of RFRA, it is not certain whether the prison’s refusal to
allow Joiner to possess cassette tapes and a tape player 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 further-
ing the prison’s presumable security interest in disallowing tapes
and tape players in individual cells was not developed in the
district court.
Because Joiner’s claim may have an arguable basis in law under
RFRA, the dismissal pursuant to § 1915(d) was an abuse of discre-
tion. 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.
6