*This order and judgment is not binding precedent, exce pt under the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 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, th is panel has determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9.1The district court granted in forma pauperis status to Mr. Journey

for appeal purposes. -2- The cause is therefore ordered submitted without or al argument. Mr. Rick G. Journey filed this pro se action pursua nt 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 unusua l punishment, and Fourteenth Amendment rights to due process and equa l protection. Mr. Journey alleged that during his incarceration, he s evered a third of his left middle finger while working on a table saw. The distr ict court dismissed the complaint pursuant to 28 U.S.C. § 1915(d). Mr. Jou rney appeals, 1 and we affirm. Mr. Journey contends the defendants’ negligent fail ure to (1) implement and enforce adequate safety standards and (2) provi de proper guards on the table saw constituted cruel and unusual punishment and a denial of due process. Negligence alone does not constitute crue l and unusual punishment. “After incarceration, only the ‘unnecessary and wan ton infliction of pain’ . . . constitutes cruel and unusual punishment for bidden 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 act s by state2We decline to consider facts and issues Mr. Journ ey 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 dist rict court that Mr. Journey does not allege actions which constitute cr uel and unusual punishment or a denial of due process. Mr. Journey also contends defendants’ failure to co mply with OSHA regulations or to cover him with Workmen’s Compensation constituted a denial of equal protection when compared to non-inm ates. 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 wit h Mr. Journey’s loss, we agree with the district court that Mr. Jou rney 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