A non-smoking prisoner brought a complaint under 28 U.S.C. sec. 1983, alleging that he had been deprived of his constitutional rights by being forced to breathe environmental tobacco smoke while incarcerated. A magistrate judge recommended dismissal of the complaint without prejudice; the district court adopted the recommendation. The Ninth Circuit Court of Appeals ruled that the prisoner’s complaint “should be dismissed only if no set of facts can be proven that would entitle him to relief” and concluded that “Maciel’s complaint should not have been dismissed prior to service of process.” Thus, the dismissal was vacated and the case remanded to the district court for further proceedings.
106 F.3d 408, 1997 U.S. App. LEXIS 896.