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 Pursuant to that Rule, the Court has determined that this opinion should not be published.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

2 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,

(5th Cir. 1994) (construing dismissal

before service as pursuant to

(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,

(1993), which held that prisoners exposed to environmental

3 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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