UNITED STATES COURT OF APPEALS
Filed 12/12/96
TENTH CIRCUIT
CLINT SMITH,
Plaintiff - Appellant, No. 96-1250
v. D. Colorado
PEOPLE OF THE STATE OF (D.C. No. 96-S-279)
COLORADO; DEPARTMENT OF
CORRECTIONS; ARISTEDES
ZAVARAS; ROY ROMER, Governor;
JOE HUNTER; PAT CRAIG; ADOLPH
MARTINEZ; CAPTAIN EHRMAN;
MIKE COLVIN; ROBERT J.
FURLONG; MAJOR MURRAY; BILL
PRICE,
Defendants - Appellees.
ORDER AND JUDGMENT*
Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.
*
This order and judgment is not binding precedent, except under the doctrines of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.
After examining the briefs and appellate 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. This cause is therefore ordered
submitted without oral argument.
Clint Smith appeals the dismissal under 28 U.S.C. § 1915(d) of his civil rights
action against various employees of the Colorado Department of Corrections, and other
defendants. Mr. Smith contends that the district court displayed prejudice against his
case, rushed justice, and, in doing so, erred in dismissing Smith’s complaint prior to
service upon the defendants, and without adequate consideration or taking evidence with
respect to his allegations. Mr. Smith alleges that the district court’s legal conclusions
were wrong (he does not dispute any of the factual findings) and, among other things,
asks us to rule that Colo. Rev. Stat. § 17-20-114.5 (Supp. 1995) is unconstitutional either
as written or as applied to him. Colo. Rev. Stat. § 17-20-114.5 (Supp. 1995) provides:
Restriction of privileges in correctional facilities - restriction of
privileges because of lawsuit filed without justification. (1) Any person
convicted of a crime and confined in any state correctional facility listed in
section 17-1-104.3 is not entitled to any privileges that may be made
available by the department of corrections. If any such person is required
by the department to perform any available labor, participate in any
available educational program or work program, undergo any available
counseling, or any one or a combination of the foregoing and such person
does not perform the labor, participate in the program, undergo the
counseling, or do any one or a combination of the foregoing as required by
the department, the department shall deny specified privileges to such
person. The privileges that the department shall deny to such person
include, but are not limited to, television, radios, entertainment systems,
cigarettes, and access to snacks. If the department denies television
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privileges, it may allow a person to watch television for educational
purposes, including public television broadcasts transmitted to or available
to the facility. A person who is physically unable to perform labor,
participate in an educational program or work program, or undergo
counseling may be allowed the privileges specified in this subsection (1).
Nothing in this subsection (1) shall be construed to grant as a right any such
labor, program, or counseling or any privileges listed in this subsection (1).
A district court may dismiss an in forma pauperis case sua sponte if it determines
that the action is frivolous. 28 U.S.C. § 1915(d) (applicable at the time of filing Feb. 1,
1996); 28 U.S.C. § 1915(e)(2)(B)(i) (applicable at the time of dismissal May 1, 1996);
Hall v. Bellmon, 935 F.2d 1106, 1108 (10th Cir. 1991). A complaint is frivolous when it
“lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325
(1989). On appeal, construing pro se pleadings liberally, Haines v. Kerner, 404 U.S. 519,
520 (1972); Brown v. Zavaras, 63 F.3d 967, 970 (10th Cir. 1995), we review a section
1915(d) dismissal for abuse of discretion. Denton v. Hernandez, 504 U.S. 25, 33 (1992);
Green v. Seymour, 59 F.3d 1073, 1077 (10th Cir. 1995).
Mr. Smith’s grievances mostly stem from a denial of privileges due to his alleged
refusal to attend an institutional drug addiction recovery program. In this context he cites
constitutional violations involving prison classification, religion, equal protection, due
process, double jeopardy, excessive fines, cruel and unusual punishment, and other
claims. Mr. Smith sets out at great length his grievances regarding his treatment by
corrections personnel, and we have read this material carefully. However, we agree with
the district court that no violation of a constitutional right has been stated. Further, we do
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not find that Colo. Rev. Stat. § 17-20-114.5 (Supp. 1995) is unconstitutional as written or
as it has been applied to Mr. Smith.
Contrary to Mr. Smith’s assertion that the district court rushed to dispose of this
case, the record shows that the district court sought and considered a more definite
statement of Mr. Smith’s claims, then patiently addressed them in a lengthy order. The
district court did not abuse its discretion in dismissing this case, and we affirm that
dismissal substantially for the reasons set out in the district court’s order filed on May 1,
1996. See also Lewis v. Casey, 116 S. Ct. 2174, 2180 (1996).
AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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Smith v. People of the State
Combined Opinion