                        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        This order and judgment is not binding precedent, except under the doctrines of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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