Click Back Button to Return to Publication
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
STEPHEN W. FLANDRO,
Plaintiff - Appellant,
v.
SALT LAKE COUNTY JAIL, et al.
Defendants - Appellees.
53 Fed. Appx. 499
December 3, 2002, Filed
NOTICE: RULES OF THE TENTH CIRCUIT COURT OF APPEALS
MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE RULES OF THE
UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.
ORDER AND JUDGMENT *
Before SEYMOUR, EBEL and
BRISCOE, Circuit Judges.
While an
inmate in the Salt Lake County Jail, Stephen Flandro filed a complaint under 42
U.S.C. § 1983 alleging his slip and fall in a soapy shower violated the Cruel
and Unusual Punishment Clause of the Eighth Amendment. The district court
construed plaintiff's complaint as asserting two separate claims, one under §
1983 for violation of the Eighth Amendment, and the other for negligence under
state tort law. The court dismissed the Eighth Amendment cause of action for
failure to state a claim, and the perceived negligence cause of action on the
ground that it was barred by the Utah Governmental Immunity Act. On appeal, Mr.
Flandro challenges the dismissal of his Eighth Amendment claim. n1 For the reasons
set out below, we affirm.
We review the trial court's dismissal of these claims de
novo. Sutton v. Utah State Sch. for
Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). We will accept the
complainant's allegations of fact as true, but we will not accept assertions of
opinions or conclusions where no facts are alleged to support them. Id.; Coopersmith
v. Superior Court, 465 F.2d 993, 994 (10th Cir. 1972) (per curiam). Mr. Flandro asserts that the
jail's shower floor became slippery due to the mixture of shampoo, soap, and
water, and that this condition was sufficiently serious to violate the Eighth
Amendment. Mr. Flandro cites no authority for this proposition.
The correct
standard for an Eighth Amendment conditions-of-confinement claim requires a
knowing disregard of "excessive risk to inmate health or safety."
Farmer v. Brennan, 511 U.S. 825, 837, 128 L. Ed. 2d 811, 114 S. Ct. 1970
(1994); Garrett v. Stratman, 254 F.3d 946, 949 (10th Cir. 2001). Furthermore, the condition must
deprive the inmate of "the minimal civilized measure of life's
necessities" and the official involved must have a "sufficiently
culpable state of mind" amounting
to "deliberate indifference" to a "substantial risk of serious
harm to an inmate." Barney v. Pulsipher, 143 F.3d 1299, 1310 (10th
Cir. 1998) (internal quotations omitted).
Slippery
shower floors constitute a daily risk faced by the public at large. Cases from
other jurisdictions have held that slippery floors do not violate the Eighth
Amendment. See, e.g., LeMaire
v. Maass, 12 F.3d 1444, 1457 (9th Cir. 1993) ("slippery prison floors . .
. do not state even an arguable claim for cruel and unusual punishment"
(quoting Jackson v. Arizona, 885 F.2d 639, 641 (9th Cir. 1989))); Denz v.
Clearfield County, 712 F. Supp. 65, 66 (W.D.Pa. 1989) (slippery cell from
humidity); Robinson v. Cuyler, 511 F. Supp. 161, 163 (E.D. Pa. 1981) (slippery
kitchen floor); Tunstall v. Rowe, 478 F. Supp. 87, 89 (N.D. Ill. 1979) (greasy
stairway); Snyder v. Blankenship, 473 F. Supp. 1208, 1212 (W.D. Va. 1979) (pool
of soapy water from [*501] leaking dishwasher). Mr. Flandro seeks to meet the
excessive risk or substantial risk standard on a result-oriented basis, that
is, he has alleged a serious injury so
he maintains the condition must be serious. However, a serious injury by itself
does not necessarily render a condition excessively or even substantially
risky. Because a soapy shower floor does not constitute an excessive or
substantial risk nor deprive an inmate of the minimal civilized measure of
life's necessities, we agree with the district court that Mr. Flandro has
failed to state a constitutional claim.
We AFFIRM.
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
FOOTNOTES:
* 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.
n1 Mr. Flandro appears to have construed
the district court's order as saying that it dismissed his § 1983 action for
failure to state a claim, and that even if it did state a claim it would have
been barred by the state immunity law. As noted above, however, we believe the
district court was only applying state immunity law to what it perceived to be
a state law claim for negligence. As Mr. Flandro has stated that he does not
assert a negligence claim, we address only the Eighth Amendment claim and do
not discuss the applicability of state immunity law.