Flandro v. Salt Lake County Jail , 53 F. App'x 499 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS DEC 3 2002
TENTH CIRCUIT PATRICK FISHER
Clerk
STEPHEN W. FLANDRO,
Plaintiff - Appellant,
No. 01-4168
v.
D.C. No. 2:00-CV-621-ST
(D. Utah)
SALT LAKE COUNTY JAIL and
SALT LAKE COUNTY,
Defendants - Appellees.
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
*
This order and judgment is not binding precedent, except under the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.
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. 1
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.”
1
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.
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Farmer v. Brennan, 511 U.S. 825, 837 (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 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
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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
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