992 F2d 870 Beck v. Schwartz I

992 F.2d 870

Joseph N. BECK, Appellee,
v.
Charles SCHWARTZ, Industries Supervisor I, Appellant.

No. 93-1650.

United States Court of Appeals,
Eighth Circuit.

Submitted April 19, 1993.
Decided May 12, 1993.

Greg A. Perry, Jefferson City, MO, for appellant.

Joseph N. Beck, pro se.

Before BEAM, LOKEN and MORRIS SHEPPARD ARNOLD, Circuit Judges.

PER CURIAM.

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1

In this 42 U.S.C. § 1983 case, appellant raised the issue of qualified immunity. Although entitled to a ruling on this issue, the district court overruled appellant's motion for summary judgment without reference to this defense. This was error.

2

We remand this matter to the district court for a decision as to whether appellant is entitled to qualified immunity. The district court is also directed to consider, as required by Siegert v. Gilley, --- U.S. ----, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991), the concomitant question of whether the complainant "has asserted a violation of a constitutional right at all." Id., --- U.S. ----, 111 S.Ct. at 1793.

3

Although Siegert deals with a claim arising under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), rather than 42 U.S.C. § 1983, the "analytical structure under which a claim of qualified immunity should be addressed," Siegert, --- U.S. at ----, 111 S.Ct. at 1793, is the same. A section 1983 claim may encompass both the Constitution "and laws" of the United States. However, Beck asserts only an Eighth Amendment violation. His claim of breach of the federal Occupational Safety and Health Act is a predicate to the establishment of a purportedly dangerous condition, to which he was allegedly exposed through the deliberate indifference of Schwartz. Our holding in Bibbs v. Armontrout, 943 F.2d 26 (8th Cir.1991) should be considered by the district court in further analysis of Beck's supposed cause of action.

4

We will retain jurisdiction. The district court shall consider the matters referred to in this opinion and certify the results to this court within ninety (90) days.

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