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 IN T H E U N IT E D STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

CARL D. GASKIN,

Plaintiff,

vs. Case No. 5:10cv44/MCR/CJK

W. MATHEWS, et al., 

Defendants.

REPORT AND RECOMMENDATION

Plaintiff, proceeding pro se and in forma pauperis, has filed a second amended

civil rights complaint under 42 U.S.C. § 1983. (Doc. 21). Upon review of the

amended complaint, the Court concludes that plaintiff has not presented an actionable

claim against three of the named defendants, and that dismissal of those defendants

is warranted.

BACKGROUND AND PROCEDURAL HISTORY

Plaintiff was an inmate of the Florida Department of Corrections (“DOC”)

when he initiated this lawsuit on March 3, 2010. (Doc. 1). Plaintiff was released

from DOC custody on October 4, 2010 (doc. 17), and filed his second amended

complaint on December 15, 2010. (Doc. 21). Plaintiff seeks compensatory and

punitive damages based on his claims that, while working in the kitchen at Calhoun

Correctional Institution (“Calhoun CI”), plaintiff broke his femur in a slip-and-fall

accident and did not receive proper treatment from medical staff. (Doc. 21). 

Plaintiff’s second amended complaint names four defendants, all Calhoun CI

employees: Nurse Mathews, a Senior Licensed Practical Nurse; Nurse Ziegler, a

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Senior Licensed Practical Nurse; Colonel McAlpin, the “head of security”; and

Corrections Officer Abbott, a kitchen supervisor. (Doc. 21, pp. 1-2). The essential

facts are these. 

In early 2008, defendant McAlpin, either on his own initiative or by direction

of DOC officials in Tallahassee, removed all rubber safety mats from the kitchen

work area at Calhoun CI. (Doc. 21, Statement of Facts ¶ 4). On March 13, 2009 at

approximately 3:00 p.m., plaintiff slipped and fell while working in the kitchen. The

accident occurred near four boiler kettles, which is a congested area with a tiled floor. 

Plaintiffslipped on a slick stainless steel flange which is part of the drainage system. 

(Id. ¶¶ 9-13). Plaintiff fell on his right hip. Plaintiff states that it was visually

obvious that his femur bone was broken, because it was “in a distorted alignment.” 

(Id. ¶ 14). Plaintiff states this “is an incident of high occurrence, where floors are

more often than not subject to spills of food substance, soaps, water and assorted

liquids of varying consistencies, viscosities, temperature and amounts.” (Id. ¶ 16).

Another inmate saw plaintiff fall and helped plaintiff pull himself from the

floor. (Id. ¶ 23). Plaintiff complains that defendant Abbott was not “within the

immediate area,” and did not appear until after several inmates arrived to assist

plaintiff. (Id. ¶ 24). Someone called for medical assistance and defendant Nurse

Mathews arrived with a wheelchair. (Id. ¶ 26). Plaintiff complains that Nurse

Mathews began “threatening” plaintiff to either get up and get into the wheelchair or

be physically forced to do so by Mathews. (Id. ¶ 28). After plaintiff yelled that he

could not move, several inmates assisted plaintiff into the wheelchair. (Id. ¶¶ 29-30). 

Plaintiff complains that Nurse Mathews and Officer Abbott “stood by idly and

watch[ed]” and that Nurse Mathews threatened plaintiffthat plaintiff “had better hope

that something serious was wrong with him or he [Mathews] was going to place him

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in confinement.” (Id. ¶¶ 30-31). Plaintiff was taken to the medical department and

admitted to the infirmary. On March 15, 2009 at approximately 9:00 a.m., Nurse

Mathews entered the infirmary with a pair of crutches and a pass for “bed rest lay-in”

for eight days. Plaintiff states that “[n]o doctor or P.A. had signed off on the pass.” 

(Id. ¶ 34). Plaintiff informed Mathews that he “was wracked with pain” and could not

move from the waist down. Nurse Mathews warned plaintiff that if he did not leave

the infirmary he would be placed in confinement. (Id. ¶¶ 34-35). Plaintiff left on

crutches and went to his housing unit. 

The following morning an officer in plaintiff’s dormitory inquired of plaintiff

when he had last eaten. (Id. ¶ 42). Plaintiff responded that it had been 30 hours, and

that he could not go to the chowhall because he was in too much pain and was unable

to move from the waist down. (Id.). The officer called defendant Abbott and

requested a bag lunch for plaintiff. (Id. ¶ 43). Defendant Abbott refused a bag lunch

and informed the officer that plaintiff must go to the chowhall to eat.

After allegedly going six days without food, (id., ¶ 43), the officer declared a

medical emergency. Defendant Nurse Zeigler responded with a wheelchair. (Id. ¶

44). Plaintiff complains that Nurse Zeigler directed the inmates to put the crutches

on the wheelchair, stating, “He will need them on the way back.” (Id. ¶ 45). Plaintiff

further complainsthat Nurse Zeigler forced plaintiff to get out of the wheelchair once

they arrived at the medical department, because it was the only wheelchair they had. 

Plaintiff got out of the wheelchair using his crutches. (Id. ¶ 46). Shortly thereafter

plaintiff was seen by a doctor, who ordered an x-ray. (Id. ¶¶ 48). Plaintiff returned

to his dormitory pending the x-ray. Plaintiff was x-rayed on March 19, 2009, (id. ¶

52), and that same day was transported to Jacksonville Memorial Hospital for

emergency surgery. (Id. ¶ 61). Plaintiff received surgery on March 22, 2009, and

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was discharged to the Reception and Medical Center the following day. (Id. ¶¶ 62,

63). Plaintiff complains of the medical care he received at the Reception and Medical

Center, but does not allege that any of the defendants were involved in that care. (Id.

¶¶ 63-67 ). Plaintiff returned to Calhoun CI on July 14, 2009. (Id. ¶ 68 ). Plaintiff 1

complains of medical care he received after he returned to Calhoun CI, but does not

allege that any of the defendants were involved in the alleged lack of treatment. (Id.

¶¶ 69-73).

Based on the foregoing, plaintiff claims defendant McAlpin violated theEighth

Amendment when McAlpin removed the rubber mats fromthe kitchen floor. Plaintiff

claims defendant Abbott violated the Eighth Amendment when Abbott failed to show

concern for the hazardous work conditions and refused to provide plaintiff a bag

lunch. Plaintiff claims defendant Zeigler violated the Eighth Amendment when she

made her unsympathetic comment in the dormitory and required plaintiff to get out

of the wheelchair at the medical department. Plaintiff claims defendant Mathews

violated the Eighth Amendment when he “acted put-out” in response to plaintiff’s

injury and when he “forcibly coerced” plaintiff to leave the infirmary.

DISCUSSION

Because plaintiff is proceeding in forma pauperis, the Court may dismiss the

case if satisfied that the action is “(i) frivolous or malicious; (ii) fails to state a claim

on which relief may be granted; or (iii) seeks monetary relief against a defendant

who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). The court must read

plaintiff’s pro se allegations in a liberal fashion. Haines v. Kerner, 404 U.S. 519, 92

S. Ct. 594, 30 L. Ed. 2d 652 (1972). Dismissals for failure to state a claim are

Plaintiff’s second amended complaint incorrectly states that plaintiff returned to Calhoun CI 1

on March 14, 2009, but it appears that the date was July 14, 2009. (Doc. 1 ¶ 107).

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governed by the same standard as Federal Rule of Civil Procedure 12(b)(6). Mitchell

v. Farcass, 112 F.3d 1483, 1485 (11 Cir. 1997). In determining whether the

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complaint states a claim upon which relief may be granted, the court accepts all

factual allegations in the complaint as true and evaluates all reasonable inferences

derived from those facts in the light most favorable to the plaintiff. Hunnings v.

Texaco, Inc., 29 F.3d 1480, 1483 (11 Cir. 1994). The complaint may be dismissed

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if the facts as pleaded do not state a claim to relief that is plausible on its face. See

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1968-69, 1974, 167 L. Ed.

2d 929 (2007) (retiring the negatively-glossed “no set of facts” language previously

used to describe the motion to dismiss standard and determining that because

plaintiffs had “not nudged their claims across the line from conceivable to plausible,

their complaint must be dismissed” for failure to state a claim). A complaint is also

subject to dismissal under Rule 12(b)(6) when the allegations – on their face – show

that an affirmative defense bars recovery on the claim. Marsh v. Butler Cnty., Ala.,

268 F.3d 1014, 1022 (11 Cir. 2001); see also Jones v. Bock, 549 U.S. 199, 215, 127

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S. Ct. 910, 920-21, 166 L. Ed. 2d 798 (2007) (reiterating that principle and providing,

as an example, that if a complaint’s allegations show that relief is barred by the

applicable statute of limitations, the complaint is subject to dismissal for failure to

state a claim). Taking the allegations of plaintiff’s second amended complaint astrue

and construing them in the light most favorable to plaintiff, plaintiff fails to state a

plausible Eighth Amendment claim against defendants McAlpin, Abbott or Zeigler. 

The Supreme Court has developed a two-part analysis governing Eighth

Amendment challenges to prison conditions. The Eleventh Circuit summarized this

standard in Chandler v. Crosby, 379 F.3d 1278 (11 Cir. 2004): th

First, under the “objective component,” a prisoner must prove that the

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condition he complains of is sufficiently serious to violate the Eighth

Amendment. Hudson v. McMillian, 503 U.S. 1, 8, 112 S. Ct. 995, 999,

117 L. Ed. 2d 156 (1992). The challenged condition must be “extreme.”

Id. at 9, 112 S. Ct. at 1000. While an inmate “need not await a tragic

event” before seeking relief, Helling v. McKinney, 509 U.S. 25, 33, 113

S. Ct. 2475, 2481, 125 L. Ed. 2d 22 (1993), he must at the very least

show that a condition of his confinement “pose[s] an unreasonable risk

of serious damage to his future health” or safety, id. at 35, 113 S. Ct. at

2481. Moreover, “the Eighth Amendment requires more than a

scientific and statistical inquiry into the seriousness of the potential

harm and the likelihood thatsuch injury to health will actually be caused

by exposure to [the challenged condition of confinement]. It also

requires a court to assess whether society considers the risk that the

prisoner complains of to be so grave that it violates contemporary

standards of decency to expose anyone unwillingly to such a risk. In

other words, the prisoner must show that the risk of which he complains

is not one that today’s society chooses to tolerate.” Id. at 36, 113 S. Ct.

at 2482. The Eighth Amendment thus guarantees that prisoners will not

be “deprive [d] ... of the minimal civilized measure of life's necessities.” 

Rhodes [v. Chapman], 452 U.S. [336,] 347, 101 S. Ct. [2392,] 2399

[(1981)].

Chandler, 379 F.3d at 1289-90. The second part of the two-part analysis is the

“subjective component:”

[T]he prisoner must show that the defendant prison officials “acted with

a sufficiently culpable state of mind” with regard to the condition at

issue. Hudson, 503 U.S. at 8, 112 S. Ct. at 999 (marks and citation

omitted). The proper standard is that of deliberate indifference. Wilson

v. Seiter, 501 U.S. 294, 303, 111 S. Ct. 2321, 2327, 115 L. Ed. 2d 271

(1991). Negligence does not suffice to satisfy this standard, id. at 305,

111 S. Ct. at 2328, but a prisoner need not show that the prison official

acted with “the very purpose of causing harm or with knowledge that

harm [would] result,” Farmer v. Brennan, 511 U.S. 825, 835, 114 S. Ct.

1970, 1978, 128 L. Ed. 2d 811 (1994). In defining the deliberate

indifference standard, the Farmer Court stated: “ [A] prison official

cannot be found liable under the Eighth Amendment for denying an

inmate humane conditions of confinement unless the official knows of

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and disregards an excessive risk to inmate health or safety; the official

must both be aware of facts from which the inference could be drawn

that a substantial risk of serious harm exists, and he must also draw the

inference.” Id. at 837, 114 S. Ct. at 1979.

Chandler, 379 F.3d at 1289-90.

Individuals do not have a constitutional right (1) to be free from a government

employee’s negligence, even if it causes an injury or (2) to have the government

protect them from such an injury. See Daniels v. Williams, 474 U.S. 327, 106 S. Ct.

662, 88 L. Ed. 2d 662 (1986). To amount to a violation of the Constitution, the

official’s actions must be deliberate or reckless in the criminal sense. See Whitley v.

Albers, 475 U.S. 312, 106 S. Ct. 1078, 89 L. Ed. 2d 251 (1986).

In order to hold defendants McAlpin and Abbott liable under the Eighth

Amendment, plaintiff must show that the lack of rubber mats on the kitchen floor

posed a substantial risk of serious harm to inmate safety, and that these defendants

knew of, and disregarded that risk by conduct that is more than gross negligence.

Plaintiff’s allegations do not make thatshowing. “[S]lippery floors constitute a daily

risk faced by members of the public at large.” Reynolds v. Powell, 370 F.3d 1028,

1031 (10 Cir. 2004). This Court, as well as federal courts from other circuits have

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consistently held that slippery prison floors do not violate the Eighth Amendment. 

See Reynolds, 370 F.3d at 1031 (holding thatslippery condition arising fromstanding

water in prison shower was not a condition posing a substantial risk of serious harm

as required under the Eighth Amendment, even where inmate was on crutches and

had warned prison employees that he was at heightened risk of falling); Snipes v.

DeTella, 95 F.3d 586, 592 (7 Cir. 1996) (holding that “an inch or two” of th

accumulated water in the shower was not “an excessive risk to inmate health or

safety”); Marsh v. Jones, 53 F.3d 707, 711-12 (5 Cir. 1995) (holding that inmate’s th

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claim for monetary damagesresulting from defendants’ failure to warn that a leaking

or sweating air conditioner made the floor wet was “a garden-variety negligence

claim that was not actionable under § 1983”); LeMaire v. Maass, 12 F.3d 1444, 1457

(9 Cir. 1993) (holding that “slippery prison floors . . . do not state even an arguable

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claim for cruel and unusual punishment.”); Robinson v. Cuyler, 511 F. Supp. 161,

162-63 (E.D. Pa. 1981) (dismissing prisoner’s Eighth Amendment claim against

prison officials for allegedly hazardous working conditions in prison kitchen caused

by slick floor (resulting in prisoner sustaining seriousinjury when he slipped, fell and

was burned by hot food froman overturned pot); concluding that a slippery floor does

not inflict cruel and unusual punishment in violation of the Eighth Amendment);

Snyder v. Blankenship, 473 F. Supp. 1208 (W.D. Va. 1979), aff’d mem., 618 F.2d 104

(4 Cir. 1980) (dismissing prisoner’s Eighth Amendment claim based on prisoner th

slipping and falling on slick prison kitchen floor caused by leaking dishwasher – 

even though prisoner offered proof of prison officials’ knowledge of hazardous

condition and past serious injuries resulting from slips and falls on the floor – prison

officials’ failure to remedy the situation “cannot be said as a matter of federal law to

be conduct shocking to the conscience or repugnant to civilized standards of a

maturing society”); see also, e.g., Harris v. Stalder, 261 F. App’x 658 (5 Cir. 2008)

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(holding that prisoner’s attempt to hold prison officials liable for physical injuries

sustained when prisoner slipped and fell on wet prison kitchen floor failed to allege

a viable deliberate indifference claim); Beasley v. Anderson, 67 F. App’x 242 (5 Cir. th

2003) (prisoner’s claim that he slipped and fell on slippery shower floor sounded in

negligence and was insufficient to allege a constitutional violation); Lefall v.

Johnson, 48 F. App’x 104 (5 Cir. 2002) (prisoner’s claim that he suffered back th

injury after slipping and falling on a wet floor caused by persistent plumbing leaks

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of which defendants were aware was, at most, a claim of negligence which is not

actionable under § 1983); Davis v. Corr. Corp. of Am., No. 5:07cv279/RS/EMT, 2008

WL 539057 (N.D. Fla. Feb. 22, 2008) (dismissing prisoner’s Eighth Amendment

claim for injury sustained when prisoner slipped and fell due to water on floor from

leaking toilet). 

Plaintiff offers no special or unique circumstancesthatrequire a departure from

the general rule barring Eighth Amendment liability in prison slip and fall cases. 

Further, for plaintiff to overcome a defense of qualified immunity, he would have to

show that the law was clearly established in 2009 that the failure to provide rubber

mats in a prison kitchen violated the Eighth Amendment. In light of the numerous

federal cases holding that the Eighth Amendment does not apply to prison slip and

fall accidents, this Court would be constrained to conclude that the Eighth

Amendment right allegedly violated by defendants McAlpin and Abbott was not

clearly established at the time of plaintiff's accident. As plaintiff fails to state a

plausible Eighth Amendment claim against defendants McAlpin and Abbott, these

defendants should be dismissed. 

Plaintiff also fails to state a plausible Eighth Amendment claim against Nurse

Zeigler. To state an Eighth Amendment violation, plaintiff must show (1) that he had

an objectively serious medical need, (2) that Nurse Zeigler was deliberately

indifferent to that need, and (3) that Zeigler’s deliberate indifference caused plaintiff

injury. Plaintiff complains about Nurse Zeigler’s cynical comment that plaintiff

would “need [the crutches] on the way back,” (doc. 21 ¶45), but this comment does

not arguably give rise to an Eighth Amendment violation. See, e.g., Bismark v.

Fisher, 123 F. App’x 892, 897 (11 Cir. 2007) (“[I]t is not a violation of the Eighth

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Amendment for a prison physician to consult with a prisoner concerning a medical

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condition in an aloof or unfriendly way. Much more isrequired.”); Hernandez v. Fla.

Dep’t of Corr., 281 F. App’x 862, 866 (11 Cir. 2008) (“[V]erbal abuse alone is th

insufficient to state a constitutional claim.”). Plaintiff’s remaining complaint that

Zeigler required plaintiff to get out of the wheelchair at the infirmary fares no better. 

Plaintiff admits that it was the only wheelchair the medical department had and that

plaintiff had crutches to assist him. A reasonable jury could not conclude that Zeigler

acted unreasonably in requiring that the wheelchair be available in case of another

medical emergency. 

Accordingly, it is respectfully RECOMMENDED:

1. That plaintiff’s claims against defendants McAlpin, Abbott and Zeigler be

DISMISSED WITH PREJUDICE under 28 U.S.C. § 1915(e)(2)(B)(ii), for plaintiff’s

failure to state a claim upon which relief may be granted.

2. That this case be remanded to the undersigned for further proceedings on

plaintiff’s claims against defendant Nurse Mathews.

At Pensacola, Florida this 19th day of December, 2011.

/s/Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

fourteen (14) days after being served a copy hereof. Any different deadline that may

appear on the electronic docket is for the court's internal use only, and does not

control. A copy of any objections shall be served upon any other parties. Failure to

object may limit the scope of appellate review of factual findings. See 28 U.S.C. §

636; United States v. Roberts, 858 F.2d 698, 701 (11 Cir. 1988). th

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