                                                                           F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                            OCT 15 1998
                                 TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                 Clerk

 JOE JOHNSON, JR,
               Plaintiff - Appellant,                     No. 98-6225
          v.                                         (D.C. No. 98-CV-379)
 JAMES L. SAFFLE; STEVE                                   (W.D. Okla.)
 HARGETT; and DELORES RAMSEY,
               Defendants - Appellees.


                            ORDER AND JUDGMENT *


Before ANDERSON, McKAY, and LUCERO, Circuit Judges.



      After examining Plaintiff-Appellant’s brief and the 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.

The case is therefore ordered submitted without oral argument.

      Plaintiff, a pro se state prisoner, appeals the district court’s dismissal of his

42 U.S.C. § 1983 action. Plaintiff filed a section 1983 action claiming that

Defendants violated his constitutional rights by prohibiting smoking except in


      *
       This order and judgment is not binding precedent, except under the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.
certain designated areas in the prison facility in which he is confined.

Specifically, he contends that the “no smoking” policy amounts to cruel and

unusual punishment under the Eighth Amendment, deprives him of due process

and equal protection under the First, Fifth, and Fourteenth Amendments, and

violates an Oklahoma statute. In his Report and Recommendation filed April 16,

1998, the magistrate judge recommended that Plaintiff’s complaint be dismissed

as frivolous and for failure to state a claim under 28 U.S.C. § 1915A. After

considering Plaintiff’s objections, the district court adopted the magistrate judge’s

recommendation and dismissed Plaintiff’s action.

      After reviewing the record and Plaintiff’s arguments on appeal, we affirm

the district court’s dismissal of Plaintiff’s section 1983 action for substantially

the same reasons set forth by the magistrate judge and adopted by the district

court in its Order filed May 12, 1998.

      AFFIRMED and DISMISSED.

                                                Entered for the Court



                                                Monroe G. McKay
                                                Circuit Judge




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