Frank M. Gaster, Plaintiff-appellant, v. Carroll A. Campbell, Jr., Governor of the State of Southcarolina; Michael D. Jarrett, Commissioner of Thedepartment of Health and Environmental Control; John F.brown, Toxicologist of the Department of Health Andenvironmental Control, Defendants-appellees, 4 F.3d 985 (4th Cir. 1993)

Frank M. Gaster appeals from the district court's order adopting the magistrate judge's recommendation and dismissing his 28 U.S.C. § 1983 (1988) complaint without issuance and service of process. We find that Gaster's complaint states a cognizable Eighth Amendment claim. Consequently, we vacate the district court's order and remand the case for further proceedings consistent with this opinion.

Gaster, a South Carolina state inmate, filed an action complaining that South Carolina failed to provide a smoke-free environment for prisoners. He alleges the lack of such a policy violates his Eighth Amendment protection against cruel and unusual punishment because he is a non-smoker and must endure the cigarette smoke present in prison. The magistrate judge recommended dismissal, apparently under 28 U.S.C. § 1915(d) (1988),¹  on the grounds that complaints about cigarette smoke do not assert a cognizable constitutional claim. (R. 6). Gaster was warned that failure to file objections to the magistrate judge's report would result in waiver of his right to appeal the district court's order, if the district court adopted the recommendations. Because Gaster made only general objections and did not point to particular errors in the magistrate judge's report, the district court declined to exercise de novo review and, adopting the magistrate judge's recommendation, dismissed the case without issuance and service of process.² 

As stated earlier, based on the case law cited by the magistrate judge, the district court's dismissal without service is best understood as an action under 28 U.S.C. § 1915(d) (1988). Pursuant to Sec. 1915(d), a court may dismiss a non-fee-paying litigant's claims without prejudice "if satisfied that the action is frivolous."³ 

Dismissals under Sec. 1915(d) are reviewed under an abuse of discretion standard, and an appellate court should not lightly overturn a district court's finding of frivolousness. White v. White, 886 F.2d 721, 724 (4th Cir. 1989). Nevertheless, the legal standard that must be applied by the district court remains strict: dismissal under Sec. 1915(d) is appropriate only where the plaintiff's factual contentions are clearly baseless, or the claim is based on an indisputably meritless legal theory. See Neitzke v. Williams, 490 U.S. 319, 327 (1989). If a pro se complaint contains a potentially cognizable claim, the plaintiff should be given an opportunity to particularize his allegations. See Coleman v. Peyton, 340 F.2d 603, 604 (4th Cir. 1965).

Shortly after the district court issued its order, the Supreme Court decided Helling v. McKinney, 61 U.S.L.W. 4648 (U.S.1993). McKinney held that a plaintiff "states a cause of action under the Eighth Amendment by alleging that [the defendants] have, with deliberate indifference, exposed him to levels of [environmental tobacco smoke] that pose an unreasonable risk of serious damage to his future health." Id. at 4650. To prove an Eighth Amendment violation, a plaintiff must demonstrate two objective elements: (1) he is being exposed to unreasonably high levels of environmental tobacco smoke, and (2) today's society will not tolerate his exposure to this risk. Id. Furthermore, plaintiff must prove a subjective element: the defendants are deliberately indifferent to his exposure to this risk. Id. at 4651.

Gaster's complaint alleges that Defendants exposed (and continue to expose) him to cigarette smoke, a known human carcinogen, in violation of his Eighth Amendment protection against cruel and unusual punishment. Although it remains to be seen whether Gaster will be able to meet the subjective and objective elements of McKinney, his complaint states a cognizable Eighth Amendment claim and the district court erred by dismissing it on the grounds that his complaint raised no constitutional issues.

Named as Defendants in Gaster's complaint are Carroll A. Campbell, Jr., Governor of South Carolina, and Michael D. Jarrett and John F. Brown, respectively the Commissioner and Toxicologist of the South Carolina Department of Health and Environmental Control. We find that these Defendants are not the proper parties against whom Gaster may bring his action, because they are not directly responsible for prison administration.⁴  When a pro se litigant brings a potentially meritorious cause of action against the wrong parties, the district court should "afford him a reasonable opportunity to determine the correct person or persons against whom the claim is asserted, advise him how to proceed and direct or permit amendment of the pleadings to bring that person or persons before the court." Gordon v. Leeke, 574 F.2d 1147, 1153 (4th Cir.), cert. denied, 439 U.S. 970 (1978). The district court should provide Gaster with such an opportunity.

For these reasons, we vacate the district court's order and remand this case to the district court for further proceedings. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.

VACATED AND REMANDED.