                                                                              F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                              NOV 22 2004
                                     TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                 Clerk

 THOMAS WOODBERRY,

                  Plaintiff-Appellant,                      No. 04-3276
           v.                                            District of Kansas
 CHARLES SIMMONS, Secretary of                     (D.C. No. 03-CV-3249-GTV)
 Corrections; DAVID MCKUNE,
 Warden, Lansing Correctional Facility;
 STATE OF KANSAS; CARLA
 STOVALL, Attorney General of the
 State of Kansas,

                  Defendants-Appellees.


                                ORDER AND JUDGMENT          *




Before EBEL , MURPHY , and McCONNELL , Circuit Judges.


       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal.     See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is

therefore submitted without oral argument.



       This order and judgment is not binding precedent, except under the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.
      Thomas Woodberry, a state prisoner proceeding pro se, appeals the district

court’s dismissal of his 42 U.S.C. § 1983 complaint for failure to state a claim

upon which relief can be granted. After carefully reviewing Mr. Woodberry’s

brief, the district court’s ruling, and the applicable law, we agree that Mr.

Woodberry has failed to state a claim and therefore AFFIRM.

      Mr. Woodberry’s § 1983 complaint sought more than $25 million in

compensatory and punitive damages from various officials of the Kansas

Department of Corrections (“KDOC”) for alleged Eighth Amendment violations.

He claimed the KDOC engaged in cruel and unusual punishment when it

distributed free tobacco to inmates and then refused to provide inmates smoking

cessation programs, such as nicotine gum or patches, when it converted its prisons

to smoke-free facilities. He also alleged that the First through the Fourteenth

Amendments entitle him “to be medically screened for smoking related illnesses.”

Doc. No. 1 at 4. Finally, he claimed KDOC officials denied him access to the

courts by refusing to respond to his administrative grievances.

      The district court found that the KDOC, in its response to Mr. Woodberry’s

grievances, provided a copy of a bulletin in which “prisoners were offered

smoking cessation classes ‘to teach . . . techniques to stop smoking.’” Op. at 3,

citing Pl.’s Compl. This same bulletin also informed inmates they could purchase




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nicotine patches or nicotine gum.      Id. Thus, the district court held Mr. Woodberry

had “not stated a claim for relief under the Eighth Amendment.” Op. at 4.

      The district court also found Mr. Woodberry’s “claim regarding access to

the courts is not entirely clear” but was apparently based on his rebuffed attempt

to file an emergency grievance concerning smoking-related issues.        Id. His

emergency grievance was denied and Mr. Woodberry was advised to follow the

routine grievance procedure. The district court held those “circumstances do not

suggest any interference with [Mr. Woodberry’s] access to the courts.”         Id.

      On appeal, Mr. Woodberry renews his Eighth Amendment claim and his

claims of violations of the First through Fourteenth Amendments of the United

States Constitution. Though not specifically enumerated as such, he also

apparently appeals the district court’s ruling regarding his access to the courts by

claiming the state “refus[ed] to respond to any 1 of 5 grievances.” Appellant’s

Br. at 19. Because the district court dismissed the complaint for failure to state a

claim, we review its ruling de novo.     Sutton v. Utah State Sch. for Deaf & Blind   ,

173 F.3d 1226, 1236 (10th Cir. 1999).

      Mr. Woodbury first claims the Eight Amendment’s ban on cruel and

unusual punishment requires the KDOC to provide him, a voluntary cigarette

consumer, with a battery of medical procedures to determine whether he will

contract smoking-related illnesses at some future date. Appellant’s Br. at 18. He


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apparently has abandoned his claim that the KDOC should have provided smoking

cessation classes or aids—presumably because documents he attached to his

complaint indicate the KDOC already did so.         See Pl.’s Compl. at 13.

       Under the Eighth Amendment, prisoners are constitutionally entitled to

“humane conditions of confinement guided by ‘contemporary standards of

decency.’” Penrod v. Zavaras , 94 F.3d 1399, 1405 (10th Cir. 1996), quoting

Estelle v. Gamble , 429 U.S. 97, 103 (1976). Accordingly, prison officials must

“ensur[e] inmates receive the basic necessities of adequate food, clothing, shelter,

and medical care and . . . tak[e] reasonable measures to guarantee the inmates’

safety.” Barney v. Pulsipher , 143 F.3d 1299, 1310 (10th Cir. 1998), citing       Farmer

v. Brennan , 511 U.S. 825, 832–33 (1994). Prisoners state a claim of cruel and

unusual punishment by alleging prison officials demonstrated “deliberate

indifference to a prisoner’s serious illness or injury,”    Estelle , 429 U.S. at 105, or

that prison officials “have, with deliberate indifference,” involuntarily exposed a

prisoner to conditions “that pose an unreasonable risk of serious damage to [the

inmate’s] future health.”    Helling v. McKinney , 509 U.S. 25, 35 (1993).

       These cases demonstrate why Mr. Woodberry’s claim fails. KDOC officials

have not, as Estelle forbids, manifested “deliberate indifference” to Mr.

Woodberry’s “serious injury or illness.” To the contrary, the record undeniably

demonstrates that KDOC officials have accommodated Mr. Woodberry’s


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numerous medical requests. Among other treatments, he has received cremes and

ointments from a dermatologist to cure his legion skin ailments as well as a

testicular sonogram to investigate a knot in his left testicle.    See Doc. Nos. 4, 7

and Attachments. He has also received multiple antibiotics, special dietary

accommodations for his liver condition, and permission to cut his hair every two

weeks so he can apply a healing balm to his diseased scalp skin.        See id. Indeed,

the evidence Mr. Woodberry has provided shows the KDOC has adequately

responded to each of his medical requests. Thus,         Estelle provides no basis for

Mr. Woodberry’s claims.

       Additionally, Helling does not support Mr. Woodbury’s claim because he

seeks medical treatment to predict future illnesses that may result from his own

volitional actions. The nonsmoking plaintiff in        Helling sought damages because

he was involuntarily exposed to Environmental Tobacco Smoke (“ETS”) when his

cellmate smoked five packs of cigarettes daily. 509 U.S. at 28. The Court

compared the plaintiff’s involuntary exposure to ETS to potential personal safety

threats from “exposed electrical wiring, deficient firefighting measures, and the

mingling of inmates with serious contagious diseases with other prison inmates.”

Id. at 34. In remanding to allow the plaintiff the chance to prove “that the level

of ETS to which he has been      involuntarily exposed is such that his future health is

unreasonably endangered,” the Court emphasized that the plaintiff must “establish


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that it is contrary to current standards of decency for anyone to be so exposed

against his will and that prison officials are deliberately indifferent to his plight.”

Id. at 35 (emphasis added).

      By Mr. Woodberry’s own admissions,         Helling is inapplicable here. He was

not forced to smoke cigarettes “against his will.” His exposure to cigarette smoke

was voluntary. Though scientific discoveries about the dangers of smoking may

have caused Mr. Woodberry to regret his choices, the Constitution does not

require the KDOC to provide screening exams for non-existent medical conditions

that may eventually arise due to his past volitional acts.

      Mr. Woodberry’s second claim—that the KDOC violated the First through

the Fourteenth Amendments—is hazier. His brief centers mainly on his assertion

that the KDOC “must provide a medical screen for all smoking related illnesses.”

Appellant’s Br. at 19. As we have discussed, this claim has no merit under the

Eighth Amendment, and Mr. Woodberry fails to explain how the KDOC’s actions

violate the other thirteen of the first fourteen amendments. Though we construe

Mr. Woodberry’s pro se pleading liberally and apply a less stringent standard than

we would to pleadings filed by lawyers, we “will not supply additional factual

allegations to round out [Mr. Woodberry’s] complaint or construct a legal theory

on [Mr. Woodberry’s] behalf.”    Whitney v. New Mexico , 113 F.3d 1170, 1173–74




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(10th Cir. 1997), citing   Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991).

We thus affirm the district court’s dismissal of this claim.

       Finally, Mr. Woodberry claims KDOC officials “denied [him] access to the

courts by refusing to respond to any 1 of 5 grievances.” Appellant’s Br. at 19.

The district court construed this claim as referring to an emergency grievance Mr.

Woodberry filed concerning smoke-related issues.          See Op. at 4. It found Mr.

Woodberry’s emergency grievance was rejected and he was instructed to follow

the “routine grievance procedure.”      Id. Since Mr. Woodberry does not point us to

which five specific grievances the KDOC allegedly ignored, we cannot say that

the district court unreasonably interpreted this claim.     See Roska ex rel. Roska v.

Peterson , 328 F.3d 1230, 1246 n.13 (10th Cir. 2003) (noting this Court will not

search the record to develop evidence not specifically identified in the appellate

briefs). We also agree with its conclusion that “[t]hese circumstances do not

suggest any interference with [Mr. Woodberry’s] access to the courts.” Op. at 4.

       The judgment of the United States District Court for the District of Kansas

is AFFIRMED .

       Mr. Woodberry’s motion to proceed           in forma pauperis is GRANTED . He

is reminded that he is obligated to continue making partial payments toward the




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balance of his assessed fees and costs until they are paid in full.



                                                    Entered for the Court,

                                                    Michael W. McConnell
                                                    Circuit Judge




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