                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                        FEB 23 2001
                              TENTH CIRCUIT
                                                                   PATRICK FISHER
                                                                             Clerk
 JEFFREY M. YOUNG-BEY,

          Plaintiff-Appellant,
 v.

 RANDY SWANSON, Counselor,
 United States Penitentiary,
 Leavenworth; DONALD AUXIER,
 Counselor, United States Penitentiary,
                                                      No. 00-3272
 Leavenworth; R. TORIX, Unit
                                                 (D.C. No. 98-CV-3126)
 Manager, United States Penitentiary,
                                                        (D. Kan.)
 Leavenworth; JAMES W. BOOKER,
 Warden, United States Penitentiary,
 Leavenworth; KATHLEEN (NMN)
 HAWK, Ph.D., Director of Federal
 Bureau of Prisons, Washington D.C.;
 UNITED STATES BUREAU OF
 PRISONS, Washington, D.C.,

          Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before EBEL, KELLY and LUCERO, Circuit Judges.



      *
        After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
Order and Judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 36.3.
      Jeffrey Young-Bey filed these lawsuits for damages against a number of

prison officials and the Federal Bureau of Prisons, presumably under Bivens v.

Six Unknown Named Agents, 403 U.S. 388 (1971). The two complaints were

ultimately consolidated in the district court. In the first action, docket number 98-

CV-3126, he alleged the officials wrongfully prevented him from attempting to

communicate with certain people, in violation of his rights under the First,

Fourth, Fifth, Sixth, and Eighth Amendments, as well as federal civil-rights and

conspiracy statutes. (No. 98-CV-3126, doc. 1.) In the second action, docket

number 99-CV-3080, Young-Bey alleged that Defendants interfered with his

contractual relationships with other people, in violation of his constitutional

rights and federal statutes. (No. 99-CV-3080, doc. 6.)

      Federal prisoners are ordinarily allowed to make telephone calls to people

on their official telephone list. See 28 C.F.R. § 540.101(a). When a prisoner

submits a name for the list, he is representing that to the best of his knowledge,

that person is agreeable to receiving telephone calls from him. See id.

§ 540.101(a)(1). If a prisoner seeks to add a person who is not immediate family

or on his visiting list, the prison will ordinarily advise the potential recipient of

the prisoner’s telephone calls that “the recipient’s number will be removed from

the list if the recipient makes a written request to the institution.” Id.

§ 540.101(a)(2). The record of administrative appeals in this case shows that the

                                           -2-
prison removed one person 1 from Young-Bey’s approved telephone list at that

person’s request and ordered Young-Bey not to submit future requests to call that

person. (No. 98-CV-3126, doc. 11, attach. 1.) When Young-Bey nevertheless

submitted such a request, he was disciplined. (Id.) Under the authority of Van

Woudenberg ex rel. Foor v. Gibson, 211 F.3d 560, 568 (10th Cir. 2000), the

district court took judicial notice of this and other information from Young-Bey’s

related habeas case. (No. 98-CV-3126, doc. 36, at 3-4.)

      The district court granted Young-Bey’s motion to have the U.S. Marshal

appointed for service of process. (No. 98-CV-3126, doc. 27, at 2; No. 99-CV-

3080, doc. 19, at 3.) In a second order, the district court dismissed the statutory

claims (other than the civil-rights claims) as frivolous and the rest of the claims

for failure to state a claim upon which relief can be granted. (No. 98-CV-3126,

doc. 36, at 5-6.)

      Young-Bey raises two issues on appeal. First, he argues the district court

violated the law-of-the-case doctrine by dismissing his complaint after ordering

service on Defendants. We note first that the district court’s order appointing the

U.S. Marshal did not direct service of process on Defendants; in one of the

orders, the court specifically noted that it was granting Young-Bey’s motion



      1
       The record is sealed, and in an abundance of caution we have chosen not
to identify this person.

                                         -3-
“subject to the court’s finding that service is appropriate in this action.” (No. 99-

CV-3080, Doc. 19, at 3.) Further, the second order did not “reconsider[]” or

“over-rule[]” the earlier order, as Young-Bey asserts. (Opening Brief at 2.)

Finally, 28 U.S.C. § 1915(e)(2) requires a court to dismiss a complaint “at any

time” if it fails to state a claim, regardless of whether the defendants have been

served. We therefore find no error on this issue.

      Second, Young-Bey argues that the court erred in dismissing his complaint.

We review the dismissal for failure to state a claim de novo. See Hunt v. Uphoff,

199 F.3d 1220, 1223 (10th Cir. 1999). We review the dismissal of a claim as

frivolous for abuse of discretion. See Schlicher v. Thomas, 111 F.3d 777, 779

(10th Cir. 1997).

      A regulation that infringes on Young-Bey’s constitutional right to

communicate with people outside the prison is valid if it is “reasonably related to

legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). We

agree with the Eleventh Circuit that “[r]eduction of criminal activity and

harassment qualifies as a legitimate governmental objective.” Pope v. Hightower,

101 F.3d 1382, 1385 (11th Cir. 1996). The federal regulation is well-tailored to

advance this objective by allowing potential recipients of prisoners’ telephone

calls to block communication from a prisoner. Similar reasoning governs the




                                         -4-
alleged restriction of Young-Bey’s mail privileges. For substantially the reasons

stated by the district court, we AFFIRM its dismissal of the complaints. 2

       We GRANT Young-Bey’s motion to seal the file on appeal. We remind him

of his obligation to continue making partial payments of appellate costs and fees

until paid in full.



                                       ENTERED FOR THE COURT


                                       David M. Ebel
                                       Circuit Judge




       We express no view on the district court’s alternative suggestion that these
       2

lawsuits would be barred by Heck v. Humphrey, 512 U.S. 477 (1994), and
Edwards v. Balisok, 520 U.S. 641 (1997).

                                        -5-
