Williаm C. Richardson (“Richardson”), a Louisiana prisoner, appeals the dismissal of his 42 U.S.C. § 1983 claim against Sergeant James Spurlock and other prison officials. Hе alleges, among other things, that he was occasionally exposed to second-hand smoke in violation of the Eighth Amendment’s prohibition against cruel and unusual punishment. We affirm.
Richardson is an inmate at the Louisiana State Penitentiary. On “several occasions,” he claims that he was exposed to seсond-hand smoke from other inmates’ cigarettes during bus rides to and from work assignments. As a result, he says he had to “gasp for breath,” and suffered from nausea. The smoke also allegedly aggravated his “existing medical conditions such as high blood pressure, blood clotting, edema, arthritis, tumors etcetera,” and increased his risk for “fatal cancers.” Richardson claims that prison officials deliberately allowed this to occur, despite his complaints.
He filed an in forma pauperis § 1983 suit against several prison officials, seeking injunctive relief as well as over $50 million in damages. 1 He states that the exposure to second-hand smoke violated his constitutionаl right to be free from cruel and unusual punishment. Richardson also claims that his Eighth Amendment right was violated when he was forced to wash plastic trays by himself on *498 four different occasions in violation of his medical duty status. He finally alleges that Sergeant Spurlock retaliated by filing a false disciplinary report, and assigning him unfavorable work assignments such as cutting onions and squeezing oranges. Noting that the smoke caused only “discomfort,” a federal magistrate judge dismissed as frivolous Richаrdson’s in forma pauperis claim of an Eighth Amendment violation. The judge further found little evidence that washing trays violated his medical duty status. The judge then dismissed Richardson’s remaining claims beсause some of them were still administratively pending, while another had been barred by his failure to exhaust available administrative remedies.
Richardson filed written objections to the magistrate judge’s report and recommendation. The district court overruled his objections, and adopted the magistrate judge’s findings.
See
28 U.S.C. § 1915(e)(2) (allowing a court to dismiss an
in forma pauperis
сomplaint as frivolous if it lacks an arguable basis in law or fact). A complaint lacks an arguable basis in law if it is based on a meritless legal theory.
See Siglar v. Hightower,
We hold thаt the district court did not abuse its discretion in dismissing Richardson’s complaint. The Supreme Court has applied a two-prong test to determine whether exposurе to second-hand smoke violates a prisoner’s Eighth Amendment right. First, a prisoner must prove objectively that he is “being exposed to
unreasonably high levels
of ETS [Environmental Tobacco Smoke].”
Helling v. McKinney,
Richardson’s claim fails to meet the first prong of the
Helling
test. While Richardson’s sporadic and fleeting exposure to second-hand smoke might have been unwelcome and unpleasant, it did not constitute “unreasonably high levels of ETS.”
Id.
Richardson’s case can be factually distinguished from
Helling.
The prisoner there shared a cell with another inmate who smoked five packs of cigarettes a day.
See id.
Indeed, other courts have rejected ETS-based Eighth Amеndment claims even where the exposure was more pervasive and pronounced than that claimed by Richardson. For example, the Seventh Cirсuit has held that an inmate who shared a cell with a smoker for 133 days failed to show that he had a serious medical need or that he had been denied “the minimal civilized measure of life’s necessities.”
Oliver,
We further uphold the district court’s dismissal of Richardson’s other claims. First, Richardson alleges that prison officials acted with deliberate indifference in assigning him the job of washing plastic trays, which required him to stand up and inflamed his swollen wrists. He argues that the assignment violated his medical duty status requiring him to sit down when working. We have said that if prison officials knowingly forced a prisoner to engage in work “which they knew would significantly aggravate his serious physical ailment[,] such a decision would constitute deliberate indifference to serious medical needs” in violation of the Eighth Amendment.
Jackson v. Cain,
Second, the district court properly dismissed for failure to exhaust administrative remеdies Richardson’s claim that prison authorities filed a retaliatory, false disciplinary report.
See
42 U.S.C. § 1997e(a) (“No action shall be brought with respect to prison conditions under § 1983 of this title ... until such administrative remedies as are available are exhausted.”). We review de novo the dismissal of an inmate’s § 1983 suit for failure to еxhaust administrative remedies.
See Powe v. Ennis,
Third, Richardson’s other retaliatory claims fail because he admits that the *500 administrative process for them was still pending when he filed this § 1983 suit. See 42 U.S.C. § 1997e(a) (requiring the exhaustion of administrative remedies). Likewise, the district court did not err in denying his motion to expаnd the record to include documents relating to these unexhausted claims.
AFFIRMED.
Notes
. Section 1983 reads in part: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ...”42 U.S.C. § 1983.
. The record reflects that prison authorities have now ordered that smoking inmates be segregated from the non-smokers during bus rides.