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January 15, 1981

Julius T. CUYLER et al.

The opinion of the court was delivered by: GILES


In this condition-of-confinement civil rights suit, defendant prison officials move for summary judgment, while plaintiff, a former state prisoner, moves for leave to amend.


 According to the allegations of the verified pro se complaint, plaintiff, while working in the prison kitchen on February 4, 1977, slipped on a wet floor and was burned on his arms and body by an overturned pot of macaroni and cheese. Complaint P 9. On the same day, plaintiff's arms were treated and bandaged, but on the next two days, February 5-6, 1977, plaintiff twice was refused medical treatment by Mr. Patrizio. Id. paras. 11-12. Plaintiff claims that the unsafe working conditions violated his rights under the Eighth Amendment, and that the refusal of medical care violated his rights under the Fifth, Eighth, and Fourteenth Amendments. Id. paras. 17-18.


 Defendants raise three arguments in their Motion for Summary Judgment. They say that they were not personally involved in the incidents of the complaint, that plaintiff's medical claim does not raise a constitutional issue, and that maintaining unsafe working conditions is not actionable under 42 U.S.C. § 1983. Plaintiff, now represented by counsel, essentially argues that negligence is actionable under § 1983. Under Fed.R.Civ.Pro. 56(c), we must render judgment forthwith if these arguments convince us "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

 A. Unsafe Working Conditions

 The complaint alleges that working conditions in the prison kitchen violate the Eighth Amendment. Complaint P 17. Defendants argue that hazardous working conditions are not actionable under § 1983. Motion for Summary Judgment at 6-7. They rely primarily on Snyder v. Blankenship, 473 F. Supp. 1208 (W.D.Va.1979), aff'd mem., 618 F.2d 104 (4th Cir. 1980).

 The crucial facts in Snyder are almost identical to those here. In Snyder, a prisoner slipped on a slick kitchen floor, sustaining a severe injury. Offering proof of past serious injuries resulting from slips on the floor, Snyder claimed that the prison officials deliberately required him to work in unsafe conditions, thereby depriving him of his Eighth Amendment rights. Id. 1209-10. After an extensive discussion, id., 1211-13, Judge Williams concluded that the Eighth Amendment had not been violated, and dismissed the prisoner's complaint. He reasoned that "merely undesirable conditions or practices" neither violate "evolving standards of decency," id. 1212 (quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S. Ct. 590, 598, 2 L. Ed. 2d 630 (1958)), nor "involve the unnecessary and wanton infliction of pain," id. (quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S. Ct. 2909, 2925, 49 L. Ed. 2d 859 (1976)), and concluded: "Only when prison conditions become so deplorable as to fall within the range of subhuman treatment can a federal court intervene." Id.

 Plaintiff argues that hazardous working conditions are actionable under § 1983 because negligence is actionable under § 1983. Plaintiff's Response to Defendant's Motion for Summary Judgment, § IV (hereinafter cited as Plaintiff's Response). *fn1"

 The actionability of negligent constitutional violations is an open question, see, e.g., Baker v. McCollan, 443 U.S. 137, 139-40, 99 S. Ct. 2689, 2692-93, 61 L. Ed. 2d 433 (1979); Snyder, 473 F. Supp. at 1210-11, which has engendered scholarly discussion, e.g., Comment, Actionability of Negligence Under Section 1983 and the Eighth Amendment, 127 U.Pa.L.Rev. 533 (1978), and division within the courts, see, e.g., Snyder, 473 F. Supp. at 1210-11, including a split within this district. See Judge Green's discussion in Riccobono v. Whitpain Township, 497 F. Supp. 1364, 1375 & n.12 (E.D.Pa.1980). We need not, however, reach this issue because plaintiff's argument is inapposite. The question of negligence relates to § 1983 actions only in that someone's negligence may be the cause of a constitutional violation. Section 1983 creates an action against a person acting under color of state law who "subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws."

 Defendants here argue that there was no constitutional violation. Following Judge Williams' reasoning and result, we agree. A slippery kitchen floor does not inflict "cruel and unusual punishments." U.S.Const. amend. VIII.

 Plaintiff's response misses the point. Unless defendants deprived him of a constitutional right, their alleged negligence is irrelevant. See Baker, 443 U.S. at 140, 99 S. Ct. at 2692. The complaint alleges an Eighth Amendment violation. There is none. Mere negligence is not actionable under § 1983. See, e.g., Paul v. Davis, 424 U.S. 693, 700-01, 96 S. Ct. 1155, 1160-61, 47 L. Ed. 2d 405 (1976); Howell v. Cataldi, 464 F.2d 272, 277 (3d Cir. 1972). Were this a motion to dismiss a pro se complaint under Rule 12(b)(6), we might allow plaintiff to amend to allege deprivation of a different constitutional right. See, e.g., Haines v. Kerner, 404 U.S. 519, 520-21, 92 S. Ct. 594, 595-96, 30 L. Ed. 2d 652 (1972) (on motion to dismiss, pro se complaint held to less stringent standard than lawyer-drafted pleading). Plaintiff, however, is represented by counsel who, in response to defendants' argument, has had adequate opportunity to call our attention to any other deprivation caused ...

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