* Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion should not be

published and is not precedent except under the limit ed circumstances set forth in 5 TH C IR

. R. 47.5.4. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-40945

(Summary Calendar)

CLAUDE E. JOINER,

Pl aintiff-Appellant,

versus

DIRECTOR TDCJ-ID; WAYNE SCOTT, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION; UNIDENTIFIED DISHONG,

WARDEN, HODGE UNIT,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 6:95-CV-707

February 16, 1998

Before JONES, SMITH, and STEWART, Circuit Judges.

PER CURIAM: *

Claude E. Joiner, Texas inmate #5 94355, appeals the dismissal of his civil rights suit filed

pursuant to the Religious Freedom Restorati on Act of 1993 (“RFRA”) as frivolous under 28 U.S.C.

§ 1915. Joiner is a practicing Muslim and argues that his First Amendment right to the freedom of

religion is being violated by the prison’s refusal to permit him to possess Arabic language tapes and2

a cassette tape player in his cell. He further maintains that he was denied his tapes because the

chaplain does not like the Muslim leaders Joiner is following.

In reaching her decision to dismiss the claim, the magistrate judge cited, among other cases,

Muhammad v. Lynch

, 966 F.2d 901 (5th Cir. 1992). The magistrate judge noted that t his court

rejected inmate Muhammad’s equal protecti on claim that he should be allowed to possess religious

tapes and a tape player in his cell. M uhammad

, 966 F.2d at 903. In that case, Muhammad contended

that other Texas Department of Criminal Justice (“TDC J”) inmates who were housed in different

units than his own were allowed to possess tape players and religious cassettes in their cells.

Testimony to such effect was offered by various inmates at Muhammad’s evidentiary hearing. The

magistrate judge in the instant case determined that the issues presented by Joiner had been fully

explored in Muhammad and other past litigation.

A district court may dismiss an in forma pauperis complaint as frivolous if it lacks an arguable

basis either in law or in fact. D enton v. Hern andez , 504 U.S. 25, 31-34 (1992). A complaint is

legally frivolous if it is based on an “indisputably meritless legal theory.” Neitzke v. Williams , 490

U.S. 319, 325 (1989). A § 1915(d) (now (e) (2) (B) (I)) dismissal is reviewed for abuse of discretion.

Denton , 504 U.S. at 33-34.

Joiner contends that although inmates are permitted to teach one anothe r Arabic, none is

fluent enough to properly instruct him. He argues that the prison has failed to show penological

objectives for not allowing him the tapes, and that it has failed to employ the least restrictive means

of achieving any compelling interest in denying him the tapes. The Supreme Court decl ared the

RFRA unconstitutional because it contradicted the principles necessary to maintain the separation of

powers and federal balance. C ity of Boerne v. Flores

, 117 S.Ct. 2157, 2172 (1997). Joiner does not3

address the Supre me Court’s decisi on i n C ity of Boerne

. Prior to the passage of the RFRA,

restrictions on the practice of religious beliefs had to be “reasonably related to legitimate penological

interests.” Muhammad , 966 F.2d at 902 (footnote om itted).

The prison has not articulated a legitimate penological interest in restricting the tape player

and religious cassettes. A hearing was conducted pursuant to S pears v. McCotter

, 766 F.2d 179 (5th

Cir. 1985), in which the prison warde n t estified that prison policy typically prohibits inmates from

possessing tape players or cassettes in their cells. He did not indicat e a reaso n for this policy.

Moreover, the Muhammad case indicates that prisoners in the same system as Joiner are permitted

tape players for various reasons. The M uhammad court, in part, addressed a claim factually similar

to Joiner’s, but only in the context of a potential equal protecti on violation. Joiner maintains that his

First Amendment right to the freedom of religion is being violated by the prison’s refusal to permit

him to possess the cassettes and tape player in his cell. Joiner’s contention that M uhammad is not

controlling is thus valid. Unlike Joiner in this case, Muhammad did not invoke evaluation of his claim

under the “legitimate penological interest” standard set forth by the Supreme Court i n T urner v.

Safley

, 482 U.S. 78 (1987) and O’Lone v. Estate of Shabazz

, 482 U.S . 342 (1987). Because the

instant claim is distinguishable from that of the inmate in Muhammad

, Joiner’s suit is not without an

arguable basis in law and the dismissal of his suit as frivolous was an abuse of the court’s discretion.

See Denton v. Hernandez , 504 U.S. 25, 31-34 (1992).

The dismissal is VACATED and the case REMANDED for further proceedings.