Elliott v. Brooks, 10th Cir. (1999)
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UNITED STATES COURT OF APPEALS
United States Court of Appeals
Tenth Circuit
TENTH CIRCUIT
JUL 20 1999
PATRICK FISHER
Clerk
KENNETH ELLIOTT,
Plaintiff-Appellant,
v.
JOSEPH M. BROOKS, Warden; E.
HANSEN, Captain; ESPINOZA,
Acting Unit Manager; T. D.
ALLPORT, Counselor,
No. 98-1470
(D.C. 98-WM-732)
(District of Colorado)
Defendants-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, BALDOCK, and HENRY, Circuit Judges.
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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered 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This order and judgment is not binding precedent, except under the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.
*
Mr. Elliott brought this action against the defendants in their individual
capacity pursuant to Bivens v. Six Unknown Named Agents of the Fed. Bur. of
Narcotics, 403 U.S. 388 (1971). The district court dismissed the complaint under
Fed. R. Civ. P. 12 (b)(6). We review the 12 (b)(6) dismissal de novo,
v. Kansas Dept of Corrections
see Perkins
, 165 F.3d 803, 806 (10th Cir. 1999). Because it is
clear that the plaintiff can prove no set of facts in support of the claims that
would entitle him to relief, accepting the well-pleaded allegations of the
complaint as true and construing them in the light most favorable to the plaintiff,
see id. , we affirm the district courts dismissal.
Detention Center Medical Facility
See Jennings v. Natrona County
, No. 98-8032, 98-8035, 1999 WL 248634 at *4
(10th Cir. Apr. 20, 1999) (holding that for purposes of counting strikes under 28
U.S.C. 1915, an affirmance of a district court dismissal would count as a single
strike, whereas a dismissal of an appeal from a district court dismissal may count
as a second strike in addition to the strike for the original dismissal).
Mr. Elliott alleges infringement of his and other white inmates right to
watch television, based on a system of television broadcast selection that favors
the selections of the black majority. We affirm the district courts finding that
this fails to allege a cognizable constitutional violation. There is no
constitutional right to watch television.
Mr. Elliott further alleges the defendants have labeled him a snitch and
2
shot-caller, Aplt. Br. at 2, knowingly putting him at serious risk of substantial
harm. The district court interpreted this claim as one alleging an Eighth
Amendment violation, and found the conclusory allegations of putting him at risk
of harm insufficient to rise to the level of an Eighth Amendment violation. We
affirm the decision of the district court on this issue for substantially the same
reasons.
Holding that Mr. Elliott failed to identify constitutional violations for
which relief could be provided, we need not address the district courts alternative
ruling that Mr. Elliott failed to exhaust his administrative remedies.
Accordingly, we AFFIRM the decision of the district court holding Mr.
Elliott has failed to identify a constitutional violation.
Entered for the Court,
Robert H. Henry
Circuit Judge
