                            UNPUBLISHED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Affirmed in part, vacated in part, and remanded by unpublished per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Unpublished opinions are not binding precedent in this circuit.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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