*This order and judgment is not binding precedent, except under the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 10th Cir.

R. 36.3.

UNITED STATES COURT OF APPEALS

Filed 6/25/96

TENTH CIRCUIT

RICK G. JOURNEY,

Plaintiff-Appellant,

v.

STEVE SMITH, JAMES GENTRO,

COLORADO DEPARTMENT OF

CORRECTIONS, JUNIPER VALLEY

INC. ADMINISTRATION

MARKETING, ARISTEDES

ZAVARAS,

Defendants-Appellees.

No. 95-1531

(D.C. No. 95-S-2757)

(Dist. Colo.)

ORDER AND JUDGMENT*

Before SEYMOUR, Chief Judge, KELLY and LUCERO, Circuit Judges.

After examining the briefs and appellate record, this panel has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9.
1

 The district court granted in forma pauperis status to Mr. Journey

for appeal purposes.

-2-

The cause is therefore ordered submitted without oral argument.

Mr. Rick G. Journey filed this pro se action pursuant to 42 U.S.C. §

1983, alleging defendants Steve Smith, James Gentro, Colorado Department

of Corrections, Juniper Valley, Inc., and Aristedes Zavaras deprived him of

his Eighth Amendment right against cruel and unusual punishment, and

Fourteenth Amendment rights to due process and equal protection. Mr.

Journey alleged that during his incarceration, he severed a third of his left

middle finger while working on a table saw. The district court dismissed the

complaint pursuant to 28 U.S.C. § 1915(d). Mr. Journey appeals, 1 and we

affirm.

Mr. Journey contends the defendants’ negligent failure to (1) implement

and enforce adequate safety standards and (2) provide proper guards on the

table saw constituted cruel and unusual punishment and a denial of due

process. Negligence alone does not constitute cruel and unusual punishment.

“After incarceration, only the ‘unnecessary and wanton infliction of pain’

 . . . constitutes cruel and unusual punishment forbidden by the Eighth

Amendment.” Ingraham v. Wright, 430 U.S. 651, 670 (1977) (quoting Estelle

v. Gamble, 429 U.S. 97, 103 (1976). Further, “negligent acts by state
2

 We decline to consider facts and issues Mr. Journey raises for the

first time on appeal. See Oyler v. Allenbrand, 23 F.3d 292, 299 n.8 (10th

Cir. 1994).

-3-

officials are not actionable under the Due Process Clause.” Daniels v.

Williams, 474 U.S. 327, 330 (1986). We agree with the district court that Mr.

Journey does not allege actions which constitute cruel and unusual

punishment or a denial of due process.

Mr. Journey also contends defendants’ failure to comply with OSHA

regulations or to cover him with Workmen’s Compensation constituted a

denial of equal protection when compared to non-inmates. Because Mr.

Journey does not allege that defendants treated him differently based on a

suspect classification, he must establish that the distinction between himself

and non-inmates was not reasonably related to some penological purpose. See

Templeman v. Gunter, 16 F.3d 367, 371 (10th Cir. 1994)(citing Turner v.

Safley, 482 U.S. 78, 89 (1987)). While we sympathize with Mr. Journey’s

loss, we agree with the district court that Mr. Journey does not allege actions

which violate the Constitution. 2
-4-

We therefore AFFIRM substantially for the reasons given by the

district court. The mandate shall issue forthwith.

ENTERED FOR THE COURT

Stephanie K. Seymour

Chief Judge