     Case: 09-20399     Document: 00511019916          Page: 1    Date Filed: 02/03/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                          February 3, 2010

                                     No. 09-20399                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



REYNALDO J. PEREZ,

                                                   Plaintiff–Appellant
v.

FRED ORMISTON, Owner; TEXAS INTERNATIONAL HARDWOODS &
VENEERS,

                                                   Defendants–Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:08-CV-3221


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Reynaldo J. Perez, pro se, appeals the district court’s dismissal with
prejudice of his 28 U.S.C. § 1983 claim against Fred Ormiston and Texas
International Hardwoods & Veneers (“Ormiston”). The district court held that
Perez’s claim was frivolous because it lacked an arguable basis in law and fact
and failed to state a claim, and dismissed it with prejudice under 28 U.S.C.



        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                  No. 09-20399

§ 1915(e)(2)(B). Because Perez’s lawsuit raises no viable constitutional or federal
claim against a state actor, we affirm.
      Perez, a Texas Department of Corrections inmate, alleged that he suffered
irreparable lung damage while working for Ormiston under the Prison Industry
Enhancement Program, which permits prisoners to work for private employers
in the prison’s minimum security section. Perez’s complaint alleged that during
his employment, Ormiston exposed him and other prisoners to hazardous
chemicals and wood dust. After prison medical staff diagnosed him with asthma
and noted scarring in his lungs, Perez filed a § 1983 suit, alleging claims under
both the federal and state Occupational Safety and Health Acts (“OSHA”) as well
as state law negligence and toxic tort claims.
      The district court ordered Perez to show cause as to why he did not first
exhaust his administrative remedies as required by 42 U.S.C. § 1997e. See also
Woodford v. Ngo, 548 U.S. 81, 85 (2006) (stating that under the Prison Litigation
Reform Act, “[p]risoners must now exhaust all ‘available’ remedies” before filing
suit). Perez responded, arguing that because he filed the lawsuit against a non-
state entity with no state authority, § 1997e did not apply, and he therefore did
not need to exhaust his administrative remedies before filing his § 1983 suit.
The district court then dismissed his § 1983 claim with prejudice for failing to
state a claim against a state actor for a violation of a federal right, and declined
to exercise supplemental jurisdiction over his state law claims. Perez appealed.
      On appeal, Perez argues that the district court abused its discretion in
various ways, and asserts that his case should proceed to discovery so that he
may have the chance to prove that the state had vested sufficient authority in
Ormiston so that the court may fairly consider him a state actor for purposes of
§ 1983. Perez’s position clearly contradicts his unequivocal assertion to the
district court that he had deliberately not sued any state actor or anyone with
state authority. Perez may not now, for the first time on appeal, argue that

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                                  No. 09-20399

Ormiston is a state actor. See Martco Ltd. P’ship v. Wellons, Inc., 588 F.3d 864,
877 (5th Cir. 2009) (“[A]rguments not raised before the district court are waived
and cannot be raised for the first time on appeal.”).
      We review the district court’s dismissal of Perez’s suit as frivolous under
28 U.S.C. § 1915(e)(2)(B) for abuse of discretion. Geiger v. Jowers, 404 F.3d 371,
373 (5th Cir. 2005) (per curiam). A complaint is frivolous “if it lacks an arguable
basis in law or fact.” Id. “‘A complaint lacks an arguable basis in law if it is
based on an indisputably meritless legal theory, such as if the complaint alleges
the violation of a legal interest which clearly does not exist.’” Id. (quoting Davis
v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998)).
      The district court did not abuse its discretion when it dismissed Perez’s
§ 1983 claim with prejudice. A plaintiff may only bring a § 1983 lawsuit against
a state actor to enforce a constitutional right or a right created by a federal
statute. See generally Priester v. Lowndes County, 354 F.3d 414, 420 (5th Cir.
2004) (“To state a cause of action under section 1983 the appellant must allege
that the person who deprived him of a federal right was acting under color of
law.”). Not only has Perez previously unequivocally denied that Ormiston is a
state actor, Perez has alleged no constitutional violation, and we have held that
OSHA does not give rise to a private cause of action. See Jeter v St. Regis Paper
Co., 507 F.2d 973, 976–77 (5th Cir. 1975). Because 28 U.S.C. § 1367(c)(3)
permits a federal court to decline to exercise supplemental jurisdiction over state
law claims when the court has dismissed the claims over which it had original
jurisdiction, we also hold that the district court did not abuse it discretion by
declining to hear Perez’s state law claims.
      Accordingly, we affirm the district court’s dismissal with prejudice of
Perez’s § 1983 claim under § 1915(e)(2)(B). Because Perez no longer has a
pending federal court case, we also deny Perez’s request for copies of his exhibits.
      AFFIRMED.

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