Harksen v. Pease , 282 F. App'x 292 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-6015
ROBB M. HARKSEN,
Plaintiff - Appellant,
v.
T. PEASE, Mailroom Officer; D. A. BRAXTON; S. SHORTRIDGE,
Operations Officer; R. A. YOUNG, Regional Director; L. HUFFMAN,
Regional Director; S. MULLINS, Treatment Program Supervisor; S.
BUNCH, Mailroom Officer; J. ARMENTROUT, Assistant Warden
Operations; G. DEEL; T. HALE, Corrections Officer; T. WOODS,
Defendants - Appellees.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior District
Judge. (CA-04-243)
Submitted: May 21, 2008 Decided: June 27, 2008
Before WILKINSON and MICHAEL, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Robb M. Harksen, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robb M. Harksen appeals the district court’s orders
dismissing without prejudice his action filed under 42 U.S.C.
§ 1983 (2000), and denying his Fed. R. Civ. P. 59(e) motion.
Harksen asserted, inter alia, that he was denied free or gift
publications in violation of the First Amendment. The district
court held that the prison regulation banning receipt of free or
gift publications was constitutional. However, the case on which
the district court relied to reach that conclusion was reversed on
appeal. See Zimmerman v. Simmons, 260 F. Supp. 2d 1077 (D. Kan.
2003) (applying four-part test in Turner v. Safley, 482 U.S. 78(1987), and concluding that regulation banning receipt of gift
publications was constitutional), rev’d sub nom. Jacklovich v.
Simmons, 392 F.3d 420, 428-32 (10th Cir. 2004) (finding genuine
issues of material fact existed regarding behavior management and
security rationales proffered by defendants in support of policy
denying access to publications and to remaining Turner factors);
see also Prison Legal News v. Lehman, 397 F.3d 692, 698-701 (9th
Cir. 2005) (applying Turner and holding that ban on nonsubscription
bulk mail and catalogs requested by inmate was unconstitutional).
Although we express no view on the merits, we conclude that it is
appropriate to vacate the district court’s summary dismissal of
Harksen’s First Amendment claims regarding receipt of free or gift
publications. On remand the district court should consider the
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state’s justification for its regulation and resolve any factual
issues relevant to the merits of Harksen’s claims.
With regard to Harksen’s remaining claims, we have
reviewed the record and find no reversible error. Accordingly, we
affirm those claims for the reasons stated by the district court.
Harksen v. Braxton, No. 7:04-cv-00243 (W.D. Va. Nov. 9, 2004;
Dec. 10, 2004). We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
AFFIRMED IN PART, VACATED
IN PART, AND REMANDED
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