Richard C. Pepperling, et al., Plaintiffs-appellees, v. Henry Risley, Warden, Montana State Prison, et al.,defendants-appellants, 739 F.2d 443 (9th Cir. 1984)

Stephen L. Pevar, Denver, Colo., for plaintiffs-appellees.

Nick A. Rotering, Helena, Mont., for defendants-appellants.

Appeal from the United States District Court for the District of Montana.

Before GOODWIN and FLETCHER, Circuit Judges, and PANNER,^*  District Judge.

ORDER

In Pepperling v. Crist, 678 F.2d 787 (9th Cir. 1982), we held that the warden's blanket prohibition against prisoners' receipt of nude photographs of their wives and girlfriends was invalid as overbroad and ordered that a less restrictive alternative be adopted. The warden neither sought review of our decision by this court on a petition for rehearing or rehearing en banc nor review by the Supreme Court. After remand, he continued enforcing the same rule on nude photographs that we had invalidated and refused to implement a less restrictive alternative. The warden presented no new arguments before the district court, but merely continued to argue that this court's final order was erroneous. The district court reaffirmed our order by setting aside the offending regulation, but leaving open to the prison officials the establishment of a less restrictive regulation. The warden appeals.

We dismiss the appeal because it is frivolous and brought in bad faith to vex, annoy, and delay. See De Witt v. Western Pacific, 719 F.2d 1448, 1451 (9th Cir. 1983). Accordingly, we award double costs and damages, to include attorneys' fees, to plaintiffs. 28 U.S.C. § 1912 (1982); Fed. R. App. P. 38. We remand to the district court to determine the amounts. See De Witt, 719 F.2d at 1452.

APPEAL DISMISSED and REMANDED.