Carrillo Franco v. CDOC Executive Director et al

Filing 7

ORDER dismissing this action, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 2/11/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-03016-BNB
CARRILLO FRANCO,
Plaintiff,
v.
LT. KENNETH STOLBA, BVMC Food Services Supervisor,
MICHAEL HUGHES, Life Safety Coordinator,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Carrillo Franco, is in the custody of the Colorado Department of
Corrections at the Buena Vista Correctional Facility. He initiated this action by filing a
Prisoner Complaint pro se alleging deprivations of his constitutional rights pursuant to
28 U.S.C. § 1343 and 42 U.S.C. § 1983. Mr. Franco has paid the applicable $400.00
filing fee.
On November 14, 2013, Magistrate Judge Boland reviewed the Complaint and
determined that it was deficient because Mr. Franco failed to allege the personal
participation of each of the five named Defendants in a deprivation of his constitutional
rights. Magistrate Judge Boland therefore directed Plaintiff to file an Amended
Complaint within thirty days of the November 14 Order. Mr. Franco filed an Amended
Complaint asserting claims against two Defendants on December 11, 2013.
On December 16, 2013, Magistrate Judge Boland reviewed the Amended
Complaint and determined that it was deficient because it failed to allege facts to show

an arguable deprivation of Mr. Franco’s Eighth Amendment rights. Magistrate Judge
Boland therefore directed Mr. Franco to file a Second Amended Complaint within thirty
days of the December 16 Order. Plaintiff filed his Second Amended Complaint on
January 10, 2014. (Doc. No. 6).
Pursuant to 28 U.S.C. § 1915A, the Court is required to review the Second
Amended Complaint because Mr. Franco is a prisoner and he is seeking redress from
officers or employees of a governmental entity. Pursuant to § 1915A(b)(1), the Court is
required to dismiss the Second Amended Complaint, or any portion thereof, that is
frivolous. A legally frivolous claim is one in which the plaintiff asserts the violation of a
legal interest that clearly does not exist or asserts facts that do not support an arguable
claim. See Neitzke v. Williams, 490 U.S. 319, 324 (1989).
The Court must construe the Second Amended Complaint liberally because Mr.
Franco is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21
(1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court
should not act as an advocate for pro se litigants. See Hall, 935 F.2d at 1110. For the
reasons discussed below, the Second Amended Complaint and this action will be
dismissed.
Mr. Franco alleges in the Second Amended Complaint that on June 6, 2013,
while he was performing his prison work assignment as a cook, he slipped and fell on
the drainage grate system that is installed in the Minimum Center Kitchen floor, injuring
his shoulders, right knee, neck, and left wrist. Plaintiff alleges that the floor grates were
installed improperly and were slick with water and oil. He asserts that Defendant
Solba, the kitchen supervisor, and Defendant Hughes, the facility’s life safety
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coordinator, knew that there was a problem with slippery grates after several slip and
fall incidents involving staff and offenders. According to Plaintiff, Defendant Stolba
“negligently allow[ed] an unsafe working condition(s) to exist.” (Doc. No. 6, at 3). Mr.
Franco further asserts that Defendants failed to implement appropriate safety measures
and ordered the inmates to work under the hazardous conditions, which resulted in
Plaintiff’s injury. Mr. Franco claims that Defendants acted with deliberate indifference to
his Eighth Amendment right against cruel and unusual punishment. He requests
monetary relief.
Mr. Franco has failed to state an arguable deprivation of his Eighth Amendment
rights. “To prevail on a ‘conditions of confinement’ claim under the Eighth Amendment,
an inmate must establish that (1) the condition complained of is ‘sufficiently serious' to
implicate constitutional protection, and (2) prison officials acted with ‘deliberate
indifference to inmate health or safety.’” Reynolds v. Powell, 370 F.3d 1028, 1031–1032
(10th Cir. 2004) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). Whether the
condition complained of is sufficiently serious is evaluated on an objective basis. Barney
v. Pulsipher, 143 F.3d 1299, 1310 (10th Cir.1998).
The objective component of a “conditions of confinement” claim requires that the
objectionable conditions be sufficiently serious so as to “deprive inmates of the minimal
civilized measure of life's necessities.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981).
The Tenth Circuit has held that a slippery prison floor is not a sufficiently serious
condition to warrant protection under the Eighth Amendment. See Reynolds, 370 F.3d
at 1031 (noting the general rule barring Eighth Amendment liability in prison slip and fall
cases and collecting cases from other jurisdictions). Simply put, “[a] ‘slip and fall,’
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without more, does not amount to cruel and unusual punishment. . . . Remedy for this
type of injury, if any, must be sought in state court under traditional tort law principles.”
Id. (citing and quoting Mitchell v. West Virginia, 554 F.Supp. 1215, 1216–17 (N.D.
W.Va.1983)). To maintain an Eighth Amendment claim, the plaintiff must therefore
allege unique or specialized facts about his situation. Reynolds, 370 F.3d at 1031.
Mr. Franco’s allegations that Defendants were on notice of the dangerous
condition because of prior slip and fall incidents do not constitute unique or specialized
facts sufficient to transform his negligence claim into a constitutional claim. According
to Plaintiff, the hazard he faced was the same as that faced by other inmates and staff
members. (Doc. No. 6, at 3-4). Accordingly, it is
ORDERED that the Second Amended Complaint and this action are DISMISSED
as legally frivolous pursuant to 28 U.S.C. § 1915A. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this
order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438
(1962). If Plaintiff files a notice of appeal he must also pay the full $505 appellate filing
fee or file a motion to proceed in forma pauperis in the United States Court of Appeals
for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
DATED at Denver, Colorado, this 11th day of

February

, 2014.

BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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