Hall v. Wooten, 73-2078

• Decision Date: 19 November 1974
• Docket Number: No. 73-2078,73-2078
• Citation: 506 F.2d 564
• Parties: Myrtle HALL, Administratrix of the Estate of Charles Edward Hall, Deceased, Plaintiff-Appellant, v. Honorable George WOOTEN, Judge, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 564

506 F.2d 564

Myrtle HALL, Administratrix of the Estate of Charles Edward Hall, Deceased, Plaintiff-Appellant, v. Honorable George WOOTEN, Judge, et al., Defendants-Appellees.

No. 73-2078.

United States Court of Appeals, Sixth Circuit.

Nov. 19, 1974.

Cline, McAfee, Adkins & Gillenwater, Carl E. McAfee, Donald E. Earls, Norton, Va., John N. Cornett, Whitesburg, Ky., for plaintiff-appellant.

Robert C. Muncy, Hyden, Ky., Grant F. Knuckles, Pineville, Ky., James S. Wilson, Pineville, Ky., for defendants-appellees.

Before PHILLIPS, Chief Judge, and EDWARDS and McCREE, Circuit Judges.

McCREE, Circuit Judge.

This appeal from the dismissal of a complaint requires us to determine whether, in Kentucky, a cause of action for deprivation of civil rights under 42 U.S.C. 1983 survives the death of the person injured and may be brought by his legal representative. We conclude that the action does survive and reverse the judgment dismissing the case and remand for further proceedings.

This action arises from the brutal murder of Charles Edward Hall by his drunken fellow inmates while he was incarcerated in the Leslie County Jail in Kentucky on December 24, 1972. The complaint, filed by decedent's mother as administratrix of his estate, alleged that defendants, who in their several capacities are responsible for the supervision of the jail, wrongfully and willfully failed to maintain it in a condition of safety for its inmates, and that this breach of duty violated decedent's civil rights. Damages of $250,000 were prayed for.

The district court granted defendant's motions to dismiss on the ground that a cause of action based upon deprivation of personal rights under 42 U.S.C. 1983 may be maintained only by the injured person and does not survive his death. In making this determination, the district court relied upon the language of section 1983, which makes a person who violates the Act liable to the 'party injured,' ¹ and upon the cases of Madison v. Wood, 410 F.2d 564 (6th Cir. 1969), Denman v. Wertz, 372 F.2d 135 (3d Cir.), cert. denied, 389 U.S. 941, 88 S.Ct. 300, 19 L.Ed.2d 293 (1967), Nelson v. Knox, 230 F.2d 483 (6th Cir. 1956), Tyree v. Smith, 289 F.Supp. 174 (E.D.Tenn.1968), Krum v. Sheppard, 255 F.Supp. 994 (W.D.Mich.1966), aff'd, 407 F.2d 490 (6th Cir. 1967), and Mosher v. Beirne, 237 F.Supp. 684 (E.D.Mo.1964), aff'd, 357 F.2d 638 (8th Cir. 1966).

None of these cases compels the conclusion of the district court. Madison v. Wood and Krum v. Sheppard, insofar as they are relevant, hold only that a United States district court should apply the statute of limitations of the forum state in determining whether a complaint based on section 1983 has been timely filed. In Tyree v. Smith, in dismissing a complaint under section 1983, the court held that a father, not acting in his representative capacity, had no standing to sue for the deprivation of the civil rights of his child. Mosher v. Beirne, a zoning case challenging the validity of an ordinance, stands for the proposition that one may not sue for the deprivation of another's civil rights. Denman v. Wertz, involving a child custody dispute between parents, is concerned with the nature of the claimed deprivation and has no relevance to this case. In Nelson v. Knox, where in holding that a section 1983 action based upon injury to property survives the death of its owner, we said that civil rights actions for injury to the person would not survive. The statement was clearly obiter dictum.

Although section 1983 provides for liability to 'the party injured,' it does not foreclose survival of the action in behalf of the estate of the injured party. Instead, in the absence of a specific act of Congress, a United States district court, under 42 U.S.C. 1988, may refer to the law of the state in which it sits in order to determine whether an action under section 1983 for injury to the person survives.

Section 1988 provides in relevant part:

The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of this chapter . . . for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause . . ..

In interpreting this statute, we consider its language and the construction given it by other federal courts. The language plainly grants to United States district courts the power to apply state statutes in the trial and disposition of cases within their jurisdiction when federal laws are not adapted to the protection and vindication of civil rights so long as the state law to be applied is not inconsistent with the Constitution and laws of the United States. Moreover, the majority of courts that have considered whether civil rights actions for injury to the person survive have concluded that they do by reference to the law of the forum state. E.g., Brazier v. Cherry, 293 F.2d 401 (5th Cir.), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961), Perkins v. Rich, 289 F.2d 153 (8th Cir. 1961), Holmes v. Silver Cross Hospital of Joliet, Illinois, 340 F.Supp. 125 (N.D.Ill.1972), Galindo v. Brownell, 255 F.Supp. 930 (S.D.Cal.1966). See also, Davis v. Johnson, 138 F.Supp. 572 (N.D.Ill.1955), but see Landman v. Royster, 354 F.Supp. 1302 (E.D.Va.1973), where an action for injury to the person was brought against the estate of a decedent.

The United States Congress in other legislative schemes has not provided for the survival of statutory rights created, and the Supreme Court, in order to effect the purposes of the legislation, has held that the state law might be considered in fashioning federal law on the question of survival of the action. E.g., Cox v. Roth, 348 U.S. 207, 75 S.Ct. 242, 99 L.Ed. 260 (1955), construing the Jones Act, 46 U.S.C. 688, and cases cited in Brazier v. Cherry, 293 F.2d 401 (5th Cir.), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961); cf. Morangne v. States Marine Lines, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970).

As we have observed, 42 U.S.C. 1988 provides that 'the common law, as modified and changed by the constitutions and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to' cases where the civil rights statutes 'are deficient in the provisions necessary to furnish suitable remedies' to protect the civil rights of all persons in the United States.

The Supreme Court, in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) has furnished a statement of these rights and the protection to be afforded them by section 1983. It regarded the enactment of the predecessor statute of section 1983 as the Congressional response to the message of March 23, 1871, from President Grant:

'A condition of affairs now exists in some States of the Union rendering life and property insecure . . .. Therefore, I urgently recommend such legislation as in the judgment of Congress shall effectually secure life, liberty, and property, and the enforcement of law in all parts of the United States . . ..'

365 U.S. at 172-173, 81 S.Ct. at 476-477, citing Cong.Globe, 42d Cong. 1st Sess., p. 244.

The Supreme Court also quoted from the remarks of Mr. Lowe of Kansas, who said:

'While murder is stalking abroad in disguise, while whippings and lunchings and banishment have been visited upon unoffending American citizens, the local administrations have been found inadequate or unwilling to apply the proper corrective. Combinations, darker than the night that hides them, conspiracies, wicked as the worst of felons could devise, have gone unwhipped of justice.'

365 U.S. at 175, 81 S.Ct. at 477, quoting Cong.Globe, 42d Cong., 1st Sess., p. 374.

Moreover, the Court found additional evidence of Congressional intent in the summary of the argument in favor of the proposed legislation that was given by Mr. Beatty of Ohio:

'. . . certain States have denied to persons within their jurisdictions the equal protection of the laws. The proof on this point is voluminous and unquestionable . . .. Men were murdered, houses were burned, women were outraged, men were scourged, and officers of the law shot down; and the States made no successful effort to bring the guilty to punishment or afford protection or redress to the outraged and innocent.'

365 U.S. at 175, 81 S.Ct. at 478, quoting Cong.Globe, 42d Cong., 1st Sess., p. 428.

These statements and other evidence of legislative intent cited by the Supreme Court in Monroe v. Pape demonstrate that Congress was acutely aware that there were murders of persons in violation of civil rights and that it intended to provide redress in a civil action for damages. ² See especially 365 U.S. at 179, n. 23, 81 S.Ct. 473. In addition, we observe that the Supreme Court, in Scheuer v. Rhodes, 416 U.S, 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), did not question the survival of the action when it unanimously reversed a decision of this court holding that the Eleventh Amendment barred a section 1983 action brought against state officials by the legal representatives of deceased students for causing their death in violation of their civil rights. Although the question whether these actions survived the deaths of the students was...