* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 20 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KENNETH ELLIOTT,

Plaintiff-Appellant,

v. JOSEPH M. BROOKS, Warden; E. HANSEN, Captain; ESPINOZA, Acting Unit Manager; T. D. ALLPORT, Counselor,

Defendants-Appellees. No. 98-1470 (D.C. 98-WM-732) (District of Colorado)

ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, BALDOCK , and HENRY , Circuit Judges.

After examining the briefs and appellate record, th is 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). T he case is therefore ordered submitted without oral argument.2

Mr. Elliott brought this action against the defenda nts in their individual capacity pursuant to Bivens v. Six Unknown Named Ag ents of the Fed. Bur. of Narcotics , 403 U.S. 388 (1971). The district court dismisse d the complaint under Fed. R. Civ. P. 12 (b)(6). We review the 12 (b)(6) dismissal de novo, see Perkins v. Kansas Dep’t of Corrections , 165 F.3d 803, 806 (10th Cir. 1999). Because it i s clear that the plaintiff can prove no set of facts in support of the claims that would entitle him to relief, accepting the well-ple aded allegations of the complaint as true and construing them in the light most favorable to the plaintiff,

see id. , we affirm the district court’s dismissal. See Jennings v. Natrona County Detention Center Medical Facility , No. 98-8032, 98-8035, 1999 WL 248634 at *4 (10th Cir. Apr. 20, 1999) (holding that for purpose s of counting strikes under 28 U.S.C. § 1915, an affirmance of a district court di smissal would count as a single strike, whereas a dismissal of an appeal from a dis trict court dismissal may count as a second strike in addition to the strike for th e original dismissal). Mr. Elliott alleges infringement of his and other w hite inmates’ right to watch television, based on a system of television b roadcast selection that favors the selections of the black majority. We affirm th e district court’s finding that this fails to allege a cognizable constitutional vi olation. There is no constitutional right to watch television. Mr. Elliott further alleges the defendants have lab eled him a “snitch and3

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 alleg ations of putting him at risk of harm insufficient to rise to the level of an Eig hth Amendment violation. We affirm the decision of the district court on this i ssue for substantially the same

reasons. Holding that Mr. Elliott failed to identify constit utional violations for which relief could be provided, we need not address the district court’s alternative ruling that Mr. Elliott failed to exhaust his admin istrative remedies. Accordingly, we AFFIRM the decision of the districtcourt holding Mr. Elliott has failed to identify a constitutional vio lation.

Entered for the Court, Robert H. Henry Circuit Judge