Thomas

MEMORANDUM **

Gregory O. Thomas, an inmate at the Washington State Penitentiary (“WSP”), appeals pro se the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging that prison officials violated the First and Fourteenth Amendments by refusing to deliver to him magazines deemed to be “sexually explicit” under WSP policy 450.100. We have jurisdiction pursuant to 28 U.S.C. § 1291 . We review dismissals under 28 U.S.C. § 1915A(b)(1) de novo, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.2000), and dismissals under 28 U.S.C. § 1915 (e)(2)(B)© for abuse of discretion, Denton v. Hernandez, 504 U.S. 25, 33 , 112 S.Ct. 1728 , 118 L.Ed.2d 340 (1992). We affirm in part, vacate in part, and remand.

Thomas alleged that the prison officials violated his equal protection rights by permitting the WSP library to stock allegedly sexually explicit books, but refusing to deliver similarly sexually explicit magazines to him. The district court properly dismissed this claim. See Lee v. City of Los Angeles, 250 F.3d 668, 686-87 (9th Cir.2001).

However, the district court improperly dismissed Thomas’ First Amendment challenge to WSP policy 450.100 because, in the absence of published…