
                                          NO. 07-11-0410-CV

                                       IN THE COURT OF APPEALS

                                  FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                               PANEL B

                                           JANUARY 2, 2013
                                    _____________________________


                                       THOMAS GILMORE STEWART,


                                                Appellant
                                                  v.


                            TEXAS DEPARTMENT OF CRIMINAL JUSTICE, ET AL.,


                                                Appellees
                                    _____________________________

                           FROM THE 278TH DISTRICT COURT OF WALKER COUNTY;

                         NO. 23,807; HONORABLE KENNETH H. KEELING, PRESIDING
                                    _____________________________


                                          Memorandum Opinion
                                    _____________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
      Appellant Thomas Gilmore Stewart, an indigent inmate, appeals  the  dismissal  of  his  lawsuit
against the Texas Department of Criminal Justice (TDCJ) and various wardens of the  prison  in  which
he was incarcerated.  Through the suit, he sought relief for injuries sustained upon  slipping  in  a
shower stall and for the conversion of his legal papers.  The claims were initiated under  the  Texas
Tort Claims Act and 42 U.S.C. § 1983.  The State moved to dismiss  under  Chapter  14  of  the  Texas
Civil Practice and Remedies Code.  The motion was granted, and Stewart appealed.
      Chapter 14
      The claims of a prisoner suing in forma pauperis may be dismissed if  frivolous.     Tex.  Civ.
Prac. & Rem. Code Ann. § 14.003(a)(2) (West 2002).  And, in deciding that,  the  court  may  consider
whether the claim has any arguable basis in law or fact.  Id.  § 14.003(b)(2).
      State Law Claims
      Next, sovereign immunity applies to claims asserted against  state  governmental  entities  and
its employees sued in their official capacity.  McClennan County v. Veasey, 314  S.W.3d  456,  458-59
(Tex. App.–Waco 2010, pet. denied).  Such immunity is waived for  non-intentional  torts,  Tex.  Civ.
Prac. & Rem. Code Ann. § 101.057(2) (West 2011), involving realty or personalty of the State.  Id.  §
101.021(2).  Regarding premises defects, the governmental unit simply owes the claimant  the  duty  a
private person would owe a licensee.  Id. § 101.022(a).  Finally, the duty a private  person  owes  a
licensee is to 1) avoid injuring the licensee through willful, wanton or  grossly  negligent  conduct
or 2) either warn of or make safe an unreasonable unsafe condition of which the licensee  knows  not.
Wigfall v. Tex. Dep’t of Crim. Justice, 137 S.W.3d 268, 276 (Tex. App.–Houston [1st Dist.]  2004,  no
pet.); accord State v. Williams, 940 S.W.2d 583, 584 (Tex.  1996)  (specifying  the  elements  for  a
premises liability claim asserted by a licensee).
      An inmate slipping in a shower stall because of  its  construction  is  considered  a  premises
defect.  Wigfall v. Tex. Dep’t of Crim. Justice, 137 S.W.3d at 276.  Thus, the TDCJ  had  a  duty  to
either warn of or make safe a condition about which  Stewart  knew  not.   Yet,  Stewart’s  pleadings
reveal that he knew of the slippery nature of the shower floor.  His knowing about it  precludes  him
from recovering against TDCJ.  See id. at 276-77 (upholding the verdict against  the  inmate  due  to
his knowledge of the condition, among other things).  Simply put, the prison had no common  law  duty
to make the shower floor reasonably safe so long as Stewart knew of the condition.
      As for the allegation about prison personnel confiscating property, that claim would  liken  to
conversion.  And, conversion is an intentional tort.  City of Houston  v.  Petroleum  Traders  Corp.,
261 S.W.3d 350, 361 (Tex. App.–Houston [14th Dist.] 2008, no pet.).   Thus,  it  cannot  be  asserted
given the bar of sovereign immunity.
      As for the wardens being  sued  in  their  individual  capacities,  nothing  in  the  pleadings
suggests that they own the prison facilities or personally confiscated  any  property  from  Stewart.
Nor did he allege facts which would render the wardens vicariously responsible for the  confiscation,
if any, undertaken by others. Thus, they would have no liability as individuals.
      Federal Claims
      We have been cited no authority holding that a slippery shower floor  is  actionable  under  42
U.S.C. § 1983.  Indeed, our research revealed otherwise.  Reynolds v. Powell,  370  F.3d  1028,  1031
(10th Cir. 2004) (stating that “slippery floors constitute a daily  risk  faced  by  members  of  the
public at large. Federal courts from other circuits have therefore consistently  held  that  slippery
prison floors do not violate the Eighth Amendment”); Shaw v. TDCJ-CID,  540  F.  Supp.  2d  834,  838
(S.D. Tex 2008) (stating that “[a]t the most, Shaw's allegations indicate that the  prison  officials
were negligent in failing to ensure that the showers were not slippery. This is a problem  in  common
to showers, in and out of prison, and is not actionable as a civil rights claim”).
      As for the confiscation of his papers, it too fails to give rise to a  civil  rights  claim  in
Texas.  Murphy v. Collins, 26 F.3d 541,  543-44 (5th Cir. 1994) (stating  that  “[i]n  Texas,  as  in
many other states, the tort of conversion fulfills  this  requirement  [i.e.,  the  provision  of  an
adequate state post-deprivation remedy].  Accordingly, Murphy's claim based on  the  confiscation  of
 his property is not actionable under section 1983”).  Instead, Stewart had the ability to sue  those
who actually took his papers.
      In view of the foregoing, Stewart’s claims lack an arguable basis in law.   Thus,  we  overrule
each of Stewart’s issues and affirm the dismissal.

                                        Brian Quinn
                                        Chief Justice
