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1 Local Rule 47.5.1 provides: "The publication of opinions that have no precedential value and
merely decide particular cases on the basis of well-settled principles of law imposes needless expense
on the public and burdens on the legal profession." Pursuant to that rule, the court has determined
that this opinion should not be published.
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_________________________________________
No. 92-8240
Summary Calendar
_________________________________________
LAWRENCE EDWARD THOMPSON,
Plaintiff-Appellant,
VERSUS
EMMETT SOLOMON, ET AL.,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(W-92-CA-47)
_________________________________________________________________
June 2, 1993
Before JOLLY, DUHÉ, and BARKSDALE, Circuit Judges.
PER CURIAM:1
Lawrence Edward Thompson, an inmate in the Texas Department of Criminal Justice,
Institutional Division (TDCJ-ID), appeals, pro se, the 28 U.S.C. § 1915(d) dismissal of his 42 U.S.C.
§ 1983 complaint, contending that the district court improperly disposed of his complaint on the
merits and without sufficient evidence. Because we find an arguable basis in law and in fact for
several of Thompson's claims, we conclude that the district court abused its discretion in dismissing
them as frivolous. We affirm as to the remainder.
I.

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2 Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
Thompson is a member of the Lost-Found Nation of Islam, which observes Ramadan during
the month of December. During Ramadan, all Muslims must fast between sunrise and sunset. In
1989, Thompson requested that prison authorities provide meals for Nation of Islam prisoners during
Ramadan observance in December, as they do for orthodox Muslim inmates in the spring. According
to Thompson, Chaplain Emmett Solomon, administrator of the Chaplaincy Program, responded that
his department assists inmates one month a year in observing Ramadan, and that if Thompson wants
to observe Ramadan at another time, he will have to make his own provisions.
Thompson brought this action against Solomon and Mansur Beyah, Islamic Chaplain, claiming
violation of his First and Fourteenth Amendments of the United States Constitution and the Texas
Constitution. He alleged, inter alia, that appellees (1) refuse to accommodate the Nation of Islam's
observance of Ramadan; (2) maintain a policy of classifying members of the Nation of Islam as
"disruptive"; (3) deny all Muslim inmates the right to possess a book titled Farrakhan's Final Call
by Louis Farrakhan; (4) refuse to provide religious newspapers, "Final Call" and "Muhammad
Speaks", to inmates in solitary and administrative segregation; and (5) fail to provide pork-free meals.
He requested, inter alia, a declaratory judgment, injunctive relief, and compensat ory and punitive
damages. Thompson was granted leave to proceed in forma pauperis.
A Spears hearing2 was held, in which the assist ant warden testified that the Hughes Unit
accommodates the orthodox Ramadan in March, and cannot provide for each individual sect that
desires to observe it at another time. He noted that the provision of special meals requires additional
work. The assistant warden did not deny that the book Farrakhan's Final Call has been deemed
"racist", but stated that its classification is determined by the Director's review. In addition, he stated
that all inmates in solitary and administrative segregation are only allowed to have the Bible or Koran.

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3 See Ruiz v. Estelle, 503 F. Supp. 1265 (S.D.Tex. 1980), aff'd in part and vacated in part,
679 F.2d 1115, amended in part and vacated in part, 688 F.2d 266 (5th Cir. 1982), cert. denied, 460
U.S. 1042 (1983).
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Based upon the hearing, the magistrate judge recommended dismissal of Thompson's damages
claims, and the transfer of his claims for equitable relief to the court handling the global Ruiz decree.3
Over Thompson's objections, the district court adopted the recommendation.
Because the Ruiz decree did no t encompass claims of religious freedom, the case was
transferred back to the western district of Texas. Accordingly, the magistrate judge issued another
report, recommending dismissal of the remaining claims for equitable relief. The magistrate judge
concluded that "[t]he allegations of [Thompson's] complaint, as well as his testimony at a Spears
hearing ..., do not indicate that [Thompson] has been denied the opportunity to practice his professed
religion, nor has he been punished for adhering to certain religious practices". In addition, the
magistrate judge reiterated the factors set forth in Turner v. Safely, 482 U.S. 78 (1987) used to
determine whether a regulation is "reasonably related to legitimate penological interests", and
concluded t hat "[t]he foregoing analysis applies in the present case to all of [Thompson's]
allegations". Over Thompson's objections, the district court adopted the recommendation, and
dismissed the complaint as frivolous.
II.
A dismissal as frivolous is appropriate where the claim has no arguable basis in law or in fact.
Denton v. Hernandez, ___ U.S. ___, 112 S. Ct. 1728, 1733 (1992); Gartrell v. Gaylor, 981 F.2d
254, 256 (5th Cir. 1993). Accordingly, a district court may dismiss a claim based on "an indisputably
meritless legal theory", Neitzke v. Williams, 490 U.S. 319, 327 (1989), or whose factual contentions
"rise to the level of the irrational or the wholly incredible". Denton, ___ U.S. ___, 112 S. Ct. at
1733. "[W]e review § 1915(d) dismissals for abuse of that discretion". Gartrell, 981 F.2d at 256.
The First and Fourteenth Amendments require that an inmate be given "a reasonable
opportunity of pursuing his faith comparable to the opportunity afforded fellow prisoners who adhere
to conventional religious precepts". Cruz v. Beto, 405 U.S. 319, 322 (1972). A prison regulation

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4 We were not provided with a transcript of the hearing; accordingly, we reviewed the
audiotape.
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that impinges on inmates' constitutional rights is valid "if it is reasonably related to legitimate
penological interests". Turner v. Safely, 482 U.S. 78, 89 (1987). Consideration of the following
factors set forth in Turner aids a court's determination of such reasonableness:
(1) whether the regulation has a logical connect ion to the legitimate
government interests invoked to justify it, (2) whether there are alterative
means of exercising the rights that remain open to the inmates, (3) the impact
that accommodation of the asserted constitutional rights will have on other
inmates, guards and prison resources, and (4) the presence or absence of
ready alternatives that fully accommodate the prisoner's rights at de minimis
costs to valid penological interests.
Kahey v. Jones, 836 F.2d 948, 950 (5th Cir. 1988) (citations omitted).
A court, however, is not required "to weigh evenly, or even consider, each of these factors".
Scott v. Mississippi Dept. of Corrections, 961 F.2d 77, 80 (5th Cir. 1992). Upon review of
Thompson's complaint and the testimony at the Spears hearing,4 we conclude that several of
Thompson's claims were not properly dismissed under § 1915(d).
A.
Concerning Thompson's request for accommodation during the December observance of
Ramadan, the TDCJ's refusal to accommodate that observance arguably infringes Thompson's
constitutional rights. In examining the reasonableness of this policy, the district court relied on the
assistant warden's cursory response that the prison accommodates the orthodox observance in June,
and that a separate accommodation in December requires substantial "lead work". We conclude that
the above response provides an insufficient factual basis to conclude that Thompson's reasonableness
challenge under Turner is indisputably without merit. See Saleem v. Evans, 866 F.2d 1313, 1317
(11th Cir. 1989) (holding that the district court erred in dismissing prisoner's complaint for failure to
state a claim without developing facts surrounding state justification for refusing to accommodate
December Ramadan).
B.

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The court similarly erred in dismissing as frivolous Thompson's objection to the denial of
books except the Bible and the Koran in solitary, and the classification of Farrakhan's book as
"racist". In dismissing these claims, the magistrate applied the Turner standard and correctly noted
that distinctions between publicat ions solely on the basis of their potential implications for prison
security are "neutral" under Turner. See Thornburgh v. Abbott, 490 U.S. 401, 109 S. Ct. 1874
(1989); however, there is no basis in the record for concluding that the restrictions were based on
concerns for prison security. That a committee labelled Farrakhan's book "racist", standing alone,
does not sufficiently justify its prohibition. We cannot infer that the relevant authorities concluded
that the book's "racist" content threatened prison security. See Thornburgh v. Abbott, 490 U.S. 399
(1989) (distinguishing prohibitions on writings that express "inflammatory political, racial, religious,
or other views" from those that are found to threaten prison security).
C.
On the other hand, the magistrate properly rejected Thompson's claims based on his alleged
inability to obtain a pork free meal, and discrimination resulting from the classification of members
of the Nation of Islam as "disruptive". TDCJ acco mmodates Muslim dietary restrictions. As
Thompson testified, all pork is indicated by an asterisk, and a pork free meal is provided every 72
hours. When in solitary confinement, a po rk free meal is provided upon request. Concerning his
discrimination claim, he failed to offer supporting facts. See Wesson v. Oglesby, 910 F.2d 278, 281
(5th Cir. 1990).
D.
Finally, we examine the court's dismissal of Thompson's damages claims. We agree with the
district court that Thompson failed to set forth facts in support of "actual injury", or, in support of
the allegation that appellees' conduct involved "reckless or callous indifference to the federally
protected rights of others". Brown v. Byer, 870 F.2d 975, 982 (5th Cir. 1989) (standard for punitive
damages in § 1983 action). Accordingly, his claims for actual damages and punitive damages were

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properly dismissed. See Memphis Community School District v. Stachura, 477 U.S. 299 (1986).
Of course, if Thompson establishes a constitutional violation, he remains entitled to nominal damages.
Mann v. Smith, 796 F.2d 79, 86 (5th Cir. 1986).
III.
For the foregoing reasons, the judgment of the district court is AFFIRMED in part and
REVERSED in part and this case is REMANDED for proceedings consistent with this opinion.
AFFIRMED in Part; REVERSED in Part; and REMANDED.

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