                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                IN THE UNITED STATES COURT OF APPEALS               February 4, 2004
                        FOR THE FIFTH CIRCUIT
                                                                Charles R. Fulbruge III
                                                                        Clerk

                               No. 03-30669
                             Summary Calendar



     RODERICK PRESIDENT,

                                               Plaintiff-Appellant,

           versus

     RICHARD L. STADLER, Individually,
     and in His Official Capacity;
     BARON KAYLO, Individually and in His
     Official Capacity; STORE MANAGER
     AVOYELLES CORRECTIONAL CENTER,
     Individually and in His Official
     Capacity; CLYDE BENSON, Individually
     and in His Official Capacity,

                                               Defendants-Appellees.




            Appeal from the United States District Court
                for the Western District of Louisiana
                          USDC No. 01-CV-655



Before GARWOOD, EMILIO M. GARZA and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Louisiana prisoner Roderick President appeals from the summary

judgment dismissal of his 42 U.S.C. § 1983 complaint alleging that



     *
       Pursuant to 5TH CIR. R. 47.5 the Court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
he had been detrimentally exposed to environmental tobacco smoke.

In   dismissing     his    complaint,    the   district   court   ruled    that

President had not propounded either evidence suggesting that the

exposure    was    the    cause   of   his   various   ailments   or   evidence

suggesting that recent changes to his prison’s smoking policy were

ineffective.      We affirm.

      President has filed before this court on appeal affidavits of

several inmates, including himself, in an attempt to show that the

prison’s    smoking      policy   is   not   enforced.    These   affidavits,

however, do not appear in the record, and they are not referenced

therein.    As the affidavits were not before the district court, we

will not consider them now as part of President’s summary judgment

evidence.     See Munoz v. Orr, 200 F.3d 291, 303 (5th Cir. 2000).

Moreover, because President gives no explanation, either in his

briefs on appeal or in the record before the district court, as to

why he could not file these affidavits, including his own, before

the district court in support of his claim, the district court’s

failure to grant President’s Rule 56(f) motion was not abuse of

discretion.       See Beattie v. Madison County Sch. Dist., 254 F.3d

595, 605–06 (5th Cir. 2001).

      Furthermore, because 28 U.S.C. § 1915 does not give the

district court the authority to either pay or waive fees for the

services President requested of the United States Marshals, the

district court properly denied President’s motion for leave to


                                         2
perform a cotinine test.1       See Pedraza v. Jones, 71 F.3d 194, 196

(5th Cir. 1995).

                                  AFFIRMED.




      1
        A test designed to measure the amount of nicotine a person has inhaled.
We also observe that there is nothing to suggest that the results of this test
could alone suffice to authorize the granting of any relief.

                                      3
