* This order and judgment is not binding precedent, e xcept under the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

### MAR 3 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

CINDY CERKA,

Plaintiff-Appellant,

v. SALT LAKE COUNTY; AARON KENNARD, individually and/or in his capacity as Salt Lake County Sheriff,

Defendants-Appellees. No. 98-4034 (D.C. No. 97-CV-203-G) (D. Utah)

ORDER AND JUDGMENT *

Before ANDERSON , KELLY , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist 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-

Plaintiff Cindy Cerka appeals the district court’s order dismissing her complaint for failure to state a claim upon which r elief can be granted, pursuant to Fed. R. Civ. P. 12(b)(6). See Cerka v. Salt Lake County , 988 F. Supp. 1420 (D. Utah 1997). We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.
Background Plaintiff worked as a nurse in the Salt Lake CountyJail. In November 1992, jail inmates and employees, including plainti ff, began to experience respiratory problems associated with working at the jail. In January 1993, the Salt Lake County Health Department inspected the ja il and discovered that raw sewage had leaked into the concrete tunnel that bro ught fresh air into the jail. As a result, sewer gas and other sewer-grown bioaeroso ls had contaminated the jail’s air. The Health Department reported that medical s tudies had linked bioaerosols with serious respiratory illnesses and other allerg ic symptoms. From November 1992 to March 6, 1993, plaintiff suffered from alle rgic symptoms due to exposure from the jail ventilating system. On March 6, 1993 , plaintiff suffered severe respiratory difficulty and lost consciousness, caus ing severe, permanent brain injury. She then brought suit in a Utah state court claiming violation of her federal civil rights, pursuant to 42 U.S.C. §§ 1983 & 1988, and for damages pursuant to state law. Defendants removed the case to federal court, pursuant-3-

to 28 U.S.C. § 1441, and moved to dismiss. The fed eral district court granted dismissal. Plaintiff appeals.

Standards of Review We review de novo whether a complaint is sufficientto withstand dismissal under Rule 12(b)(6), accepting as true all well-ple aded facts of the complaint and construing them in the light most favorable to plaintiff. See Bauchman ex rel. Bauchman v. West High School , 132 F.3d 542, 550 (10th Cir. 1997), cert. denied , 118 S. Ct. 2370 (1998). “Dismissal is appropriate only if the plaintiff can prove no set of facts in support of the claim entitling h er to relief,” but “[t]he complaint itself must show [plaintiff] is ‘entitled to relief’ under each claim raised.” Id. (quoting Fed. R. Civ. P. 8(a)(2)). We apply the law of Utah, the forum state, to the state law claims. See Lytle v. City of Haysville , 138 F.3d 857, 868 (10th Cir. 1998).-4- Federal Due Process Claim Plaintiff first alleges the district court erred in dismissing her claim for violation of her rights under the Due Process Claus e of the Fourteenth Amendment, brought pursuant to 42 U.S.C. §§ 1983 & 1988. The Due Process Clause “was intended to prevent government official s ‘from abusing [their] power, or employing it as an instrument of oppression.’” Collins v. Harker Heights , 503 U.S. 115, 126 (1992) (quoting DeShaney v. Winnebago County Dep’t of Social Servs. , 489 U.S. 189, 196 (1989) (further quotation omitt ed)). The core of due process is to protect against arbitrary governmental action, but “only the most egregious official conduct can be sa id to be ‘arbitrary in the constitutional sense.’” County of Sacramento v. Lewis , 523 U.S. 833, 118 S. Ct. 1708, 1716 (1998) (quoting Collins , 503 U.S. at 129). The Due Process Clause does not “impose federal duties that are analogous to those traditionally imposed by state tort law,” Collins , 503 U.S. at 128, and does not impose “liability whenever someone cloaked with [governmental] authority causes harm,” Lewis , 118 S. Ct. at 1717. To state a substantive due pro cess claim, a plaintiff must allege an abuse of power that shocks the contemporary conscience. See id. at 1717 & n.8. Further, the Supreme Court has caution ed restraint in expanding the concept of substantive due process. See Collins , 503 U.S. at 125.-5-

“[C]onduct intended to injure in some way unjustifi able by any government interest is the sort of official action most likelyto rise to the conscience-shocking level.” Lewis , 118 S. Ct. at 1718. Here, plaintiff argues that her complaint can withstand dismissal because she alleged intentional conduct on the part of the defendants, i.e. that they intended for her to continue to perform the duties of her job at the contaminated jail. The intent required for a substantive due process violation is an intent to injure, not an intent that plaintiff perform the duties of her job. See Collins , 503 U.S. at 117-18, 125 (no due process violationeven though state actor intentionally sent plaintiff’s d ecedent into sewer where he sustained mortal injury); Lewellen v. Metropolitan Gov’t of Nashville & Davidson County , 34 F.3d 345, 351 (6th Cir. 1994) (no due process violation even though state actors intentionally delayed moving po wer line that injured plaintiff). Plaintiff also argues that defendants actively misl ed her to believe her working environment was safe even though they knew it was not, but she has not alleged facts to support her argument. See Gaines-Tabb v. ICI Explosives, USA,
Inc. , 160 F.3d 613, 619 (10th Cir. 1998) (A “plaintiff[ ] may not rely on arguments extending beyond the allegations of the complaint t o overcome pleading deficiencies; rather, the complaint itself must sho w that plaintiff[ is] entitled to relief.” (quotation omitted)).-6-

Plaintiff’s amended complaint does not state a clai m for violation of her federal due process rights because it does not alle ge an abuse of governmental power that shocks the conscience. Therefore, distr ict court correctly dismissed this claim.

State Law Claims Plaintiff also appeals the district court’s dismiss al of her pendent state law claims. She asserts that (1) her allegations of intentional conduct removed her case from the restrictions on recovery imposed by the Utah workers’ compensation statutes, and (2) governmental immunity was waived because her injury arose from a dangerous or defective conditio n of a public building. Under Utah law, an employee injured in the course o f her employment generally is limited to remedies provided by the wo rkers’ compensation act, except for injuries based on certain intentional torts. See Bryan v. Utah Int’l , 533 P.2d 892, 894 (Utah 1975) (providing for except ion to general exclusivity of remedies). To qualify under the intentional tort exception to the workers’ compensation remedies, an employee must “show that [her] employer or fellow employee manifested a deliberate intent to injure [her].” Lantz v. National Semiconductor Corp. , 775 P.2d 937, 940 (Utah Ct. App. 1989). Here, plaintiff alleges that defendants were aware that jail employees and inmates had complained of respiratory problems, the Health Department had1 Renumbered by amendment in 1996, effective July 1, 1997, to Utah Code

Ann. § 34A-2-105. -7- reported that certain areas of the jail were contam inated, the type of contamination at the jail was linked with serious r espiratory illnesses and other allergic symptoms, defendants failed to remedy the situation prior to plaintiff’s injury, and defendants continued to require plaintiff to work in the jail. Plaintiff has not alleged “an actual deliberate intent to injure [her],” id. , and therefore she has failed to state a claim entitling her to relief under the intentional torts exception to the exclusive workers’ compensation re medies. Finally, plaintiff claims she may maintain a suit a gainst these governmental defendants because governmental immunity is waived when an injury was caused by a dangerous or defective condition of a public b uilding, including the jail in which she worked. See Utah Code Ann. § 63-30-9 (1965). Utah Code Ann. § 35-1-60 (1949) 1 provides that the right to recover workers’ compensation benefits for injuries sustain ed by an employee “shall be the exclusive remedy against the employer and . . . the liabilities of the employer imposed by [the workers’ compensation scheme] shall be in place of any and all other civil liability whatsoever . . . on account o f any . . . injury . . . in any way contracted, sustained, aggravated, or incurred by the employee.” (emphasis added). See also Gourdin ex rel. Close v. Sharon’s Cultural Educ. R ecreational2 Renumbered by amendment in 1997, effective July 1, 1997, to Utah Code

Ann. § 34A-2-106. -8- Ass’n , 845 P.2d 242, 244, 245 (Utah 1992) (employee’s ex clusive remedy for injury is workers’ compensation). In construing st atutes, the court’s “duty [is] to construe each act of the legislature so as to give it full force and effect. When a construction of an act will bring it into serious c onflict with another act, our duty is to construe the acts to be in harmony and avoid conflicts.” Jerz v. Salt Lake County , 822 P.2d 770, 773 (Utah 1991). A federal court applies “the substantive law of the forum state [to] reach the same decision[it] believe[s] that state’s highest court would.” Lytle , 138 F.3d at 868. An interpretation permitting plaintiff to recover u nder § 63-30-9 would impermissibly conflict with the provisions of § 34A -2-105 providing the exclusive remedy to an injured employee. In additi on, Utah Code Ann. § 63-30-4(2) (1965) provides that nothing in the go vernmental immunity act “may be construed as adversely affecting any immunity fr om suit that a governmental entity or employee may otherwise assert under state or federal law.” Here, defendants may assert the immunity from suit provid ed by the workers’ compensation act. We note further that Utah Code Ann. § 35-1-62 (1953) 2 permits a claim for damages only against persons other than the employer or its agent. Therefore, construing the statutes to avoidconflict, we conclude that-9-

plaintiff is limited to the remedies available unde r the workers’ compensation act and she may not maintain a claim under § 63-30-9.

Conclusion We have carefully reviewed the materials submitted by the parties, as well as the applicable law. For the reasons stated here in, the judgment of the United States District Court for the District of Utah is A FFIRMED.

Entered for the Court

Stephen H. Anderson Circuit Judge