Westine v. Gonzales Const.

UNITED STATES COURT OF APPEALS
Filed 12/16/96
FOR THE TENTH CIRCUIT
JOHN G. WESTINE, JR.,
Plaintiff-Appellant,
v. 95-1510
(D.C. No. 94-B-1143)
GONZALES CONSTRUCTION (D. Colo.)
COMPANY,
Third-Party-Plaintiff-
Appellee,
v.
UNITED STATES OF AMERICA,
Third-Party-Defendant-
Appellee.
ORDER AND JUDGMENT *
*
This order and judgment is not binding precedent, except under the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.
Before BALDOCK and BRISCOE, Circuit Judges, and LUNGSTRUM, ** District
Judge.
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); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Plaintiff John G. Westine, Jr. appeals from an order of the district court
dismissing his action for lack of jurisdiction. We affirm.
Westine commenced this Bivens 1 action alleging his rights under the First,
Fifth, Eighth, and Fourteenth Amendments were violated because he was exposed
to asbestos and lead-containing material during installation of a fire suppression
system at the Federal Correctional Institution where he was confined. Westine
also alleged violations of CERCLA, OSHA, RICO, and state law negligence.
The district court dismissed the action holding that Westine had failed to
state any viable claim for any federal action and declining to exercise jurisdiction
over Westine’s remaining state law claims. We review the district court’s
**
Honorable John W. Lungstrum, District Judge, United States District Court
for the District of Kansas, sitting by designation.
1
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971).
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dismissal of an action for lack of jurisdiction de novo. Brumark Corp. v. Samson
Resources Corp., 57 F.3d 941, 944 (10th Cir. 1995).
Neither CERCLA nor OSHA contain statutory provisions permitting a
private cause of action for personal injury. See Daigle v. Shell Oil Co., 972 F.2d
1527, 1537 (10th Cir. 1992)(CERCLA); Ellis v. Chase Communications, Inc., 63
F.3d 473, 477 (6th Cir.1995)(OSHA); cf. Frohlick Crane Serv., Inc. v.
Occupational Safety & Health Review Comm’n, 521 F.2d 628, 631 (10th Cir.
1975). No recovery for personal injury is provided for under the statutes
governing RICO actions. See 18 U.S.C. § 1964(c)(recovery permitted only for
injury to individual’s business or property); cf. Reiter v. Sonotone Corp., 442
U.S. 330, 339 (1979)(phrase "business or property" excludes personal injuries).
Westine alleged several constitutional violations under his Bivens claim.
However, defendant is a private contractor, not a government actor, a prerequisite
to bringing such a claim. See Bivens, 403 U.S. at 397 (to state a Bivens-type
claim, plaintiff must show injury as a result of violation of constitutional rights by
federal agents).
Westine has alleged no viable federal claim. When all federal claims have
been dismissed, the court may properly decline to exercise jurisdiction over any
remaining state claims. See 28 U.S.C. § 1367(c)(3). We see no abuse of
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discretion by the district court in its dismissal of Westine’s remaining state
claims.
The judgment of the district court is AFFIRMED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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