81 F3d 151 Rosen v. Prince George's Board of Education

81 F.3d 151

Frances ROSEN, Estate of; Bonnie Sands, as personal
representative and individually; Lillian
Rosenfield, as personal representative
and individually, Plaintiffs-Appellants,
Superintendent of Schools for Prince George's County
Maryland; Ridgecrest Elementary School; M. Christel Cady,
Principal, Ridgecrest Elementary School, Defendants-Appellees.

No. 95-1262.

United States Court of Appeals, Fourth Circuit.

Submitted: Feb. 27, 1996.
Decided: March 21, 1996.

NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Robert W. Mance, MUNDY, HOLT & MANCE, Washington, D.C., for Appellant. Andrew W. Nussbaum, Roger C. Thomas, REICHELT, NUSSBAUM, LAPLACA & MILLER, Greenbelt, Maryland, for Appellees.

Before HALL and MICHAEL, Circuit Judges, and PHILLIPS, Senior Circuit Judge.



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Frances Rosen taught at Ridgecrest School in Prince George's County, Maryland, from 1981 until 1985. In April 1984, unencapsulated asbestos fibers were found in various locations in the school. In April 1993, Rosen was diagnosed with mesothelioma cancer of the lungs. She died in March 1994.


Rosen's sister and mother filed this action, claiming violations of Rosen's civil rights and wrongful death. The district court granted Defendants' motion to dismiss the complaint, and Plaintiffs appealed. We affirm the district court's ruling.


We review de novo the district court's dismissal under Fed.R.Civ.P. 12(b)(6). Schatz v. Rosenberg, 943 F.2d 485, 489 (4th Cir.1991), cert. denied, 503 U.S. 936 (1992). We must affirm the dismissal if the plaintiffs would not be entitled to relief under any facts which might be proved in support of their claim. Estate Constr. Co. v. Miller & Smith Holding Co., 14 F.3d 213, 217-18 (4th Cir.1994).


Appellants claimed that the conditions in the school violated the Occupational Safety and Health Act (OSHA), 29 U.S.C.A. §§ 651-678 (West 1985 & Supp.1995), and based their civil rights claim, 42 U.S.C. § 1983 (1988), on the alleged violations. But the OSHA statute does not create a private right of action. 29 U.S.C. § 653(b)(4) (1988); Byrd v. Fieldcrest Mills, Inc., 496 F.2d 1323, 1323 (4th Cir.1974). Section 1983 may not be used as a substitute for state tort law. Parratt v. Taylor, 451 U.S. 527, 544 (1981); Baker v. McCollan, 443 U.S. 137, 146 (1979). In addition, Maryland's Workers' Compensation Act, Md. Labor & Emp'nt Code Ann. §§ 9-501 to -510 (1991 & Supp.1995), appears applicable, §§ 9-501, -502. Where the Act applies, it provides an exclusive remedy. § 9-509.


We affirm the decision of the district court. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.