United States District Court, S.D. Texas, Houston Division
ORDER OF DISMISSAL
H. Miller United States District Judge.
Kelton Howard Opp, a state inmate proceeding pro se,
filed a section 1983 lawsuit against the Harris County
Sheriffs Office ("HCSO"). Having screened the
lawsuit as required by section 1915A, the Court DISMISSES
this case for failure to raise a viable claim under section
claims that, while a pretrial detainee, he slipped and fell
in the inmate break room at the Harris County Jail while
refilling a coffee pot. In pleading the acts or omissions of
HCSO in this lawsuit, plaintiff states only "slick floor
on 5th Floor" and "slip and fall." Construed
liberally, plaintiffs complaint asserts that defendant HCSO
is liable for his slipping and falling on a slick floor on
the 5th floor of the Harris County Jail. Plaintiff alleges
that he sustained ringing in his ears following the incident,
and that he is entitled to $15 million in damages, a
right-ear cochlear replacement, and a left-ear hearing aid.
state a viable claim under section 1983, a plaintiff
"must first show a violation of the Constitution or of
federal law, and then show that the violation was committed
by someone acting under color of state law."
Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 252-53
(5th Cir. 2005). State actors are subject to civil liability
when, "under color of any statute, ordinance,
regulation, custom, or usage, of any State, " the
official subjects, or causes to be subjected, a person
"to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws [of the
United States]." 42 U.S.C. § 1983.
does not assert the violation of any particular
constitutional right. Given a liberal construction, his
complaint alleges that HCSO was deliberately indifferent to
his safely, premised on his slip and fall on a slick jail
floor, in violation of the Fourteenth Amendment. See Hare
v. City of Corinth, 74 F.3d 633, 648-49 (5th Cir. 1996).
does not enjoy a separate legal existence from Harris County,
and thus is not an entity with the capacity to sue or be
sued. See Darby v. Pasadena Police Dept., 939 F.2d
311, 313 (5th Cir. 1991). Any claim against HCSO is actually
a claim against Harris County. However, a municipality or
local government entity cannot be held liable under section
1983 on a respondeat superior theory. Monell v.
Dep't of Social Servs. of New York, 436 U.S. 658,
691 (1978). In other words, a municipality or local
government entity is liable under section 1983 only for acts
for which it is actually responsible. Doe on Behalf of
Doe v. Dallas Independent School Dist., 153 F.3d 211,
215-16 (5th Cir.1998). Thus, Harris County is liable under
section 1983 for plaintiffs injuries only if "(1) the
enforcement of a municipal policy or custom was (2) 'the
moving force' of the violation of his federally protected
rights." Piotrowski v. City of Houston, 237
F.3d 567, 568 (5th Cir. 2001).
does not allege that the enforcement of a municipal policy or
custom was the moving force behind any deliberate
indifference to his safely as to his slip and fall.
Consequently, no colorable section 1983 claim has been raised
against Harris County.
even assuming plaintiff had pleaded as actionable a
particular Harris County policy or custom, his allegations
fail to raise a viable claim for deliberate indifference to
his safety. At most, plaintiffs assertions of slipping and
falling on a slick floor while refilling a coffee pot sound
in state law negligence, not federal constitutional law.
See Marsh v. Jones, 53 F.3d 707, 712 (5th Cir. 1995)
(holding that inmate's allegation that leaking air
conditioning unit made floor wet, resulting in his slipping
and falling, is a garden-variety negligence claim, not
deliberate indifference); see also Coleman v.
Sweetin, 745 F.3d 756, 764 (5th Cir. 2014) (affirming
dismissal of prisoner's slip and fall claim as frivolous
and for failure to state a section 1983 claim).
these reasons, no viable section 1983 claim has been raised,
and this lawsuit must be dismissed. The Court declines to
exercise supplemental jurisdiction over any state law claims
raised by plaintiff in this case. See 28 U.S.C.
§ 1367(c)(3) (explaining that a district court may
decline to exercise supplemental jurisdiction over a claim
when it has dismissed all claims over which it has original
case is DISMISSED WITHOUT PREJUDICE for failure to state a
viable claim for relief under section 1983. The Court has
granted plaintiff leave to proceed in forma pauperis
in a separate order. This dismissal constitutes a
"strike" for purposes of section 1915(g), and
constitutes plaintiff's second strike. See Opp v.
Beggs, C.A. No. H-17-0442 (S.D. Tex. Mar. 20, 2017). Any
and all pending motions are DENIED AS MOOT.
Clerk is directed to provide a copy of this order to the
plaintiff. The Clerk will also provide a copy of this order
by regular mail or e-mail to: (1) the TDCJ-Office of the
General Counsel, P.O. Box 13084, Austin, Texas, 78711; and
(2) Manager of the Three-Strikes ...