MEMORANDUM**

Sands appeals from the grant of summary judgment in favor of the defendants-appellees in Sands' section 1983 action for damages and injunctive relief. We reverse and remand.

We review de novo a grant of summary judgment. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986). We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir.1986).

Sands claims that the restrictions on his ability to make telephone calls restricted his ability to contact his attorney, thus depriving him of his due process right to access to the courts. He claims that he is allowed only one five-minute call per week, that he is unable to schedule this call in order to contact his attorney at a time when his attorney is available, and that his attorney was unable to contact him through prison officials about a pending civil action.

The district court granted summary judgment for the defendants because the telephone restrictions were within the discretion of the prison officials, Sands was not denied any privileges, and he was not the object of discrimination. We reverse.

First, it is not apparent that the district court realized Sands' constitutional rights could be violated by restricting his ability to telephone his attorney. Contrary to defendant's assertions before the district court and on appeal, denial of the ability to contact counsel by telephone may violate a prisoner's due process rights. See Milton v. Morris, 767 F.2d 1443 (9th Cir.1985); Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir.1980).

Second, there are genuine issues of material fact on this issue. The defendants contend that in addition to the two five-minute calls per week each inmate is permitted to make, the prison has liberal policies that allow a prisoner to contact his attorney. C.R. 12 ex. A. Specifically, C.R. 14 ex. A describes the policy of the prison: if an attorney calls a prison counselor to request that his client call, the counselor will arrange a call for the inmate. The defendants claim they are not aware of any attempts by Sands' attorney to contact Sands.

In contrast, Sands claims he is allowed only one five-minute call per week and that he is unable to schedule this call at a time when his attorney is available. A letter from Sands' attorney, E.R. 14 ex. B1, states that the attorney tried several times to contact Sands through his counselor, Mr. Burrow, but that Sands had not yet contacted him. Counsel needed Sands to contact him about an impending civil suit. Burrows claimed that he had never received a call from Sands' attorney.

Sands also claims that his inability to take his Bible outside to the prison athletic field violates his free exercise rights. The district court granted summary judgment for the defendants on this issue because this prohibition was within the discretion of the prison officials.

Since the district court issued its order, this court has adopted a four-part test to determine the reasonableness of a regulation that impinges on a prisoners' constitutional rights. See Standing Deer v. Carlson, 831 F.2d 1525, 1528 (9th Cir.1987).

Accordingly, we reverse the grant of summary judgment on Sands' free exercise claim and remand it to the district court with instructions to apply Standing Deer.

The district court did not err by failing to enter default judgment when the defendants chose not to respond to Sands' motion for summary judgment. In addition, Sands' claim that a proposed, but unadopted, regulation will deprive him of property is not ripe for review.

REVERSED AND REMANDED.