Filed: Apr. 10, 1995
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 95-10028 BRUCE MONTGOMERY, Plaintiff-Appellant, versus GEORGE E. KILLINGER, Warden FCI, Fort Worth, ET AL., Defendant-Appellee. Appeal from the United States District Court for the Northern District of Texas (4:94-CV-736-Y) (April 24, 1995) Before GARWOOD, HIGGINBOTHAM, and DAVIS, Circuit Judges. PER CURIAM:* Bruce Montgomery appeals the district court's dismissal of his civil rights action without prejudice and its denial of his in
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 95-10028 BRUCE MONTGOMERY, Plaintiff-Appellant, versus GEORGE E. KILLINGER, Warden FCI, Fort Worth, ET AL., Defendant-Appellee. Appeal from the United States District Court for the Northern District of Texas (4:94-CV-736-Y) (April 24, 1995) Before GARWOOD, HIGGINBOTHAM, and DAVIS, Circuit Judges. PER CURIAM:* Bruce Montgomery appeals the district court's dismissal of his civil rights action without prejudice and its denial of his in ..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-10028
BRUCE MONTGOMERY,
Plaintiff-Appellant,
versus
GEORGE E. KILLINGER, Warden
FCI, Fort Worth, ET AL.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Texas
(4:94-CV-736-Y)
(April 24, 1995)
Before GARWOOD, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:*
Bruce Montgomery appeals the district court's dismissal of his
civil rights action without prejudice and its denial of his in
forma pauperis application. We affirm.
Montgomery, an inmate of the Federal Medical Center at Fort
Worth, Texas, filed this action pro se and in forma pauperis
alleging that Warden Killinger acted with deliberate indifference
in failing to enforce the prison's environmental tobacco smoke
*
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
policy in designated non-smoking areas. Montgomery alleges that he
has emphysema and that the smoke has caused him irreparable damage
to his health and poses "a life-threatening situation." He states
in his complaint that on many occasions in the past two months, he
has asked Unit Counselor Habeeb, Unit Counselor George, Unit
Manager Butler, and Warden Killinger to enforce the no-smoking
policy in the television areas, bathrooms, and hallways, but that
they offered him only "unenforced, ineffective promises." No
bulletin has been posted to alert other inmates of the need to
comply with the no-smoking policy, nor have any other corrective
steps been taken, he alleges.
The district court reviewed his complaint and ordered
Montgomery to show cause why it should not be dismissed. The court
found Montgomery's complaint deficient on two grounds. First, his
in forma pauperis application was incomplete. Second, his
complaint was "far too vague to make out a constitutional civil
rights claim." The court accordingly ordered Montgomery to allege
the facts of his constitutional claim with more specificity. In
particular, the court wanted to know how often or to what degree
Montgomery encountered cigarette smoke at the facility, whether
Montgomery was actually forced to breathe it, and whether there was
any evidence that Warden Killinger was personally involved in the
perceived wrong.
Montgomery's response to the show cause order failed to
correct the omissions of his in forma pauperis petition, but it did
state his claim with more specificity. He alleged that he was
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exposed to smoke "on an everyday basis, twenty-four hours daily,
seven days weekly." He stated that smoke violations occurred in
the hallways, community bathrooms, recreation rooms, TV rooms,
sleeping areas and other public areas. He stated that he needed to
remain outside or move constantly from area to area to avoid the
smoke. This deprived him of socializing with other non-smokers
inside and forced him to "exist as a virtual recluse." Finally, he
stated that his lungs were functioning at only ten percent capacity
and that the smoke worsened his breathing problems. Montgomery's
response also added as defendants the prison officials named above
whom he had asked to enforce the non-smoking policy.
Having reviewed Montgomery's response, the district court
dismissed his action. First, it noted that Montgomery had failed
to comply with its unambiguous order to complete his in forma
pauperis application. Second, the court stated that the response
"sheds no light on the substance of his claim as it is virtually
devoid of factual allegations." The court dismissed the case
without prejudice before ordering service of process, a dismissal
we construe as based upon a finding of frivolousness. See Boyd v.
Biggers,
31 F.3d 279, 281 (5th Cir. 1994) (construing dismissal
before service as pursuant to 28 U.S.C. ยง 1915(d)). Montgomery now
appeals.
We disagree with the district court's conclusion that this
case is frivolous. The legal theory upon which it is based is not
indisputably meritless. It rests upon Helling v. McKinney, 113 S.
Ct. 2475 (1993), which held that prisoners exposed to environmental
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smoke could state an Eighth Amendment claim. Nor are Montgomery's
allegations baseless or conclusory, at least upon the current
record. He has stated where and with what frequency he encounters
second-hand smoke, and he has alleged a non-trivial medical injury.
Of course, if as this case proceeds it becomes clear that the only
real injury the smoke poses Montgomery is limiting his social life,
Montgomery's claim will be short-lived. On the other hand, if the
second-hand smoke is exacerbating his emphysema and posing a life-
threatening situation, he may have a claim.
However, the district court acted within its discretion in
dismissing without prejudice for Montgomery's failure to comply
with its order to complete the in forma pauperis application.
Montgomery offers an excuse to this court that he did not offer the
district court. We will not listen.
AFFIRMED.
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