                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           MAR 3 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    CINDY CERKA,

                Plaintiff-Appellant,

    v.                                                    No. 98-4034
                                                    (D.C. No. 97-CV-203-G)
    SALT LAKE COUNTY; AARON                                (D. Utah)
    KENNARD, individually and/or in his
    capacity as Salt Lake County Sheriff,

                Defendants-Appellees.




                            ORDER AND JUDGMENT            *




Before ANDERSON , 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)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.


*
      This order and judgment is not binding precedent, except under the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 of 10th Cir. R. 36.3.
       Plaintiff Cindy Cerka appeals the district court’s order dismissing her

complaint for failure to state a claim upon which relief can be granted, pursuant

to Fed. R. Civ. P. 12(b)(6).   See Cerka v. Salt Lake County , 988 F. Supp. 1420

(D. Utah 1997). We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.


                                      Background

       Plaintiff worked as a nurse in the Salt Lake County Jail. In November

1992, jail inmates and employees, including plaintiff, began to experience

respiratory problems associated with working at the jail. In January 1993, the

Salt Lake County Health Department inspected the jail and discovered that raw

sewage had leaked into the concrete tunnel that brought fresh air into the jail. As

a result, sewer gas and other sewer-grown bioaerosols had contaminated the jail’s

air. The Health Department reported that medical studies had linked bioaerosols

with serious respiratory illnesses and other allergic symptoms. From November

1992 to March 6, 1993, plaintiff suffered from allergic symptoms due to exposure

from the jail ventilating system. On March 6, 1993, plaintiff suffered severe

respiratory difficulty and lost consciousness, causing severe, permanent brain

injury. She then brought suit in a Utah state court claiming violation of her

federal civil rights, pursuant to 42 U.S.C. §§ 1983 & 1988, and for damages

pursuant to state law. Defendants removed the case to federal court, pursuant



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to 28 U.S.C. § 1441, and moved to dismiss. The federal district court granted

dismissal. Plaintiff appeals.


                                    Standards of Review

       We review de novo whether a complaint is sufficient to withstand dismissal

under Rule 12(b)(6), accepting as true all well-pleaded facts of the complaint and

construing them in the light most favorable to plaintiff.       See Bauchman ex rel.

Bauchman v. West High School , 132 F.3d 542, 550 (10th Cir. 1997),               cert. denied ,

118 S. Ct. 2370 (1998). “Dismissal is appropriate only if the plaintiff can prove

no set of facts in support of the claim entitling her to relief,” but “[t]he complaint

itself must show [plaintiff] is ‘entitled to relief’ under each claim raised.”         Id.

(quoting Fed. R. Civ. P. 8(a)(2)). We apply the law of Utah, the forum state,

to the state law claims.   See Lytle v. City of Haysville , 138 F.3d 857, 868

(10th Cir. 1998).




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                              Federal Due Process Claim

       Plaintiff first alleges the district court erred in dismissing her claim for

violation of her rights under the Due Process Clause of the Fourteenth

Amendment, brought pursuant to 42 U.S.C. §§ 1983 & 1988. The Due Process

Clause “was intended to prevent government officials ‘from abusing [their]

power, or employing it as an instrument of oppression.’”     Collins v. Harker

Heights , 503 U.S. 115, 126 (1992) (quoting      DeShaney v. Winnebago County

Dep’t of Social Servs. , 489 U.S. 189, 196 (1989) (further quotation omitted)).

The core of due process is to protect against arbitrary governmental action, but

“only the most egregious official conduct can be said to be ‘arbitrary in the

constitutional sense.’”   County of Sacramento v. Lewis , 523 U.S. 833, 118 S. Ct.

1708, 1716 (1998) (quoting    Collins , 503 U.S. at 129). The Due Process Clause

does not “impose federal duties that are analogous to those traditionally imposed

by state tort law,” Collins , 503 U.S. at 128, and does not impose “liability

whenever someone cloaked with [governmental] authority causes harm,”          Lewis ,

118 S. Ct. at 1717. To state a substantive due process claim, a plaintiff must

allege an abuse of power that shocks the contemporary conscience.       See id. at

1717 & n.8. Further, the Supreme Court has cautioned restraint in expanding the

concept of substantive due process.    See Collins , 503 U.S. at 125.




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       “[C]onduct intended to injure in some way unjustifiable by any government

interest is the sort of official action most likely to rise to the conscience-shocking

level.” Lewis , 118 S. Ct. at 1718. Here, plaintiff argues that her complaint can

withstand dismissal because she alleged intentional conduct on the part of the

defendants, i.e. that they intended for her to continue to perform the duties of her

job at the contaminated jail.   The intent required for a substantive due process

violation is an intent to injure, not an intent that plaintiff perform the duties of

her job. See Collins , 503 U.S. at 117-18, 125 (no due process violation even

though state actor intentionally sent plaintiff’s decedent into sewer where he

sustained mortal injury);   Lewellen v. Metropolitan Gov’t of Nashville &

Davidson County , 34 F.3d 345, 351 (6th Cir. 1994)     (no due process violation even

though state actors intentionally delayed moving power line that injured plaintiff).

       Plaintiff also argues that defendants actively misled her to believe her

working environment was safe even though they knew it was not, but she has not

alleged facts to support her argument.   See Gaines-Tabb v. ICI Explosives, USA,

Inc. , 160 F.3d 613, 619 (10th Cir. 1998) (A “plaintiff[] may not rely on arguments

extending beyond the allegations of the complaint to overcome pleading

deficiencies; rather, the complaint itself must show that plaintiff[ is] entitled to

relief.” (quotation omitted)).




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       Plaintiff’s amended complaint does not state a claim for violation of her

federal due process rights because it does not allege an abuse of governmental

power that shocks the conscience. Therefore, district court correctly dismissed

this claim.


                                     State Law Claims

       Plaintiff also appeals the district court’s dismissal of her pendent state law

claims. She asserts that (1) her allegations of intentional conduct removed her

case from the restrictions on recovery imposed by the Utah workers’

compensation statutes, and (2) governmental immunity was waived because her

injury arose from a dangerous or defective condition of a public building.

       Under Utah law, an employee injured in the course of her employment

generally is limited to remedies provided by the workers’ compensation act,

except for injuries based on certain intentional torts.     See Bryan v. Utah Int’l ,

533 P.2d 892, 894 (Utah 1975) (providing for exception to general exclusivity

of remedies). To qualify under the intentional tort exception to the workers’

compensation remedies, an employee must “show that [her] employer or fellow

employee manifested a deliberate intent to injure [her].”      Lantz v. National

Semiconductor Corp. , 775 P.2d 937, 940 (Utah Ct. App. 1989).

       Here, plaintiff alleges that defendants were aware that jail employees and

inmates had complained of respiratory problems, the Health Department had

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reported that certain areas of the jail were contaminated, the type of

contamination at the jail was linked with serious respiratory illnesses and other

allergic symptoms, defendants failed to remedy the situation prior to plaintiff’s

injury, and defendants continued to require plaintiff to work in the jail.      Plaintiff

has not alleged “an actual deliberate intent to injure [her],”     id. , and therefore she

has failed to state a claim entitling her to relief under the intentional torts

exception to the exclusive workers’ compensation remedies.

       Finally, plaintiff claims she may maintain a suit against these governmental

defendants because governmental immunity is waived when an injury was caused

by a dangerous or defective condition of a public building, including the jail in

which she worked.     See Utah Code Ann. § 63-30-9 (1965).

       Utah Code Ann. § 35-1-60 (1949)       1
                                                 provides that the right to recover

workers’ compensation benefits for injuries sustained by an employee “shall be

the exclusive remedy against the employer and . . . the liabilities of the employer

imposed by [the workers’ compensation scheme] shall be in place of any and all

other civil liability whatsoever . . . on account of any . . . injury . . . in any

way contracted, sustained, aggravated, or incurred by the employee.” (emphasis

added). See also Gourdin ex rel. Close v. Sharon’s Cultural Educ. Recreational



1
      Renumbered by amendment in 1996, effective July 1, 1997, to Utah Code
Ann. § 34A-2-105.

                                              -7-
Ass’n , 845 P.2d 242, 244, 245 (Utah 1992) (employee’s exclusive remedy for

injury is workers’ compensation). In construing statutes, the court’s “duty [is] to

construe each act of the legislature so as to give it full force and effect. When a

construction of an act will bring it into serious conflict with another act, our duty

is to construe the acts to be in harmony and avoid conflicts.”    Jerz v. Salt Lake

County , 822 P.2d 770, 773 (Utah 1991). A federal court applies “the substantive

law of the forum state [to] reach the same decision [it] believe[s] that state’s

highest court would.”    Lytle , 138 F.3d at 868.

       An interpretation permitting plaintiff to recover under § 63-30-9 would

impermissibly conflict with the provisions of § 34A-2-105 providing the

exclusive remedy to an injured employee. In addition, Utah Code Ann.

§ 63-30-4(2) (1965) provides that nothing in the governmental immunity act “may

be construed as adversely affecting any immunity from suit that a governmental

entity or employee may otherwise assert under state or federal law.” Here,

defendants may assert the immunity from suit provided by the workers’

compensation act. We note further that Utah Code Ann. § 35-1-62 (1953)        2



permits a claim for damages only against persons       other than the employer or its

agent. Therefore, construing the statutes to avoid conflict, we conclude that



2
      Renumbered by amendment in 1997, effective July 1, 1997, to Utah Code
Ann. § 34A-2-106.

                                            -8-
plaintiff is limited to the remedies available under the workers’ compensation act

and she may not maintain a claim under § 63-30-9.


                                    Conclusion

      We have carefully reviewed the materials submitted by the parties, as well

as the applicable law. For the reasons stated herein, the judgment of the United

States District Court for the District of Utah is AFFIRMED.



                                                    Entered for the Court



                                                    Stephen H. Anderson
                                                    Circuit Judge




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