89 F.3d 850 | 10th Cir. | 1996
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Kenneth JACKSON, Plaintiff-Appellant,
v.
Nancy BURNS, Richard Kaminski and Verdis Roberson, in their
individual and official capacity as members of the
Board of County Commissioners of
Wyandotte County, Defendants-Appellees.
Case No. 95-3359
United States Court of Appeals, Tenth Circuit.
June 28, 1996.
After examining the briefs and the appellant 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); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.
Pro se plaintiff Kenneth Jackson, an inmate at the Wyandotte County Jail in Kansas City, Kansas, appeals the dismissal of his 42 U.S.C. § 1983 claim against several Wyandotte County Commissioners. Mr. Jackson challenges the decision to ban smoking in the Wyandotte County Jail. The district court dismissed Mr. Jackson's complaint as frivolous under 28 U.S.C. § 1915(d). We grant Mr. Jackson's motion to proceed in forma pauperis, consider the merits of this appeal, and affirm the district court's decision.
We review the district court's determination of frivolousness under § 1915(d) for an abuse of discretion. Denton v. Hernandez, 504 U.S. 25, 33-34 (1992); Fratus v. DeLand, 49 F.3d 673, 674 (10th Cir.1995). Under § 1915(d), an in forma pauperis complaint is frivolous only if "it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Here, Mr. Jackson alleges that the ban on smoking violates his Eighth Amendment right to be free from cruel and usual punishment and deprives him of a liberty interest in violation of the Fourteenth Amendment. We find no abuse of discretion in the district court's dismissal of these claims. Corrections officials retain broad discretion in administering jails and prisons. See Turner v. Safley, 482 U.S. 78, 84-85 (1987). Although the Supreme Court has concluded that prison officials may have a constitutional duty to protect inmates from cigarette smoke, see Helling v. McKinney,113 S.Ct. 2475 (1993), there is, as of yet, no constitutional right of inmates to smoke, see Beauchamp v. Sullivan, 21 F.3d 789, 790 (7th Cir.1994). Moreover, to the extent that he has developed stress-related health problems, Mr. Jackson acknowledges that jail personnel have provided appropriate treatment. See Rec. doc. 2 at 5 (stating that Mr. Jackson was evaluated by a physician and referred to a psychologist).
Accordingly, the district court's dismissal of Mr. Jackson's complaint pursuant to 28 U.S.C. § 1915(d) is AFFIRMED.
The mandate shall issue forthwith.1
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
Mr. Jackson's motion for a prehearing conference is denied