* 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should not be published and is not precedent except under the limited circumstances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.

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 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.
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

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.”
3

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 reasonably 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.
4

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
5

“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
6

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 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’s claim may have an arguable basis in law under

RFRA, the dismissal pursuant to § 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.