                                  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



                                            2
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”).




                                              3
      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




                                             4
