545 F.2d 980 (5th Cir. 1977), 75-2019, Shaw v. Garrison

Docket Nº:75-2019.
Citation:545 F.2d 980
Party Name:Clay L. SHAW, Plaintiff-Appellee, v. Jim GARRISON et al., Defendants-Appellants.
Case Date:January 24, 1977
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 980

545 F.2d 980 (5th Cir. 1977)

Clay L. SHAW, Plaintiff-Appellee,


Jim GARRISON et al., Defendants-Appellants.

No. 75-2019.

United States Court of Appeals, Fifth Circuit

January 24, 1977

Page 981

Malcolm W. Monroe, Michael L. Goldblatt, A. E. Papale, Jr., Peter J. Butler, Clem Tricon Sehrt, New Orleans, La., for defendants-appellants.

F. Irvin Dymond, Edward F. Wegmann, William J. Wegmann, Salvatore Panzeca, New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before WISDOM and INGRAHAM, Circuit Judges, and GROOMS, [*] District Judge.

WISDOM, Circuit Judge:

This case, before us on an interlocutory appeal, 28 U.S.C. § 1292(b), arises from an investigation conducted by the then district attorney of Orleans Parish, Jim Garrison, concerning the assassination of President John F. Kennedy and the prosecution of Clay Shaw for conspiring to assassinate President Kennedy. It presents a novel question of law: Does an action a plaintiff institutes under 42 U.S.C. § 1983 survive his death despite the fact that the claim would abate under state law? We agree with the district court that it does survive and we borrow liberally from Judge Fred J. R. Heebe's reasoning in his opinion reported at 391 F.Supp. 1353.


There is no need to recite the Kafkaesque facts in this case which the district judge characterized as "one of the most bizarre episodes in American political and legal history." 391 F.Supp. 1353. In addition to the district court's adequate discussion, 391 F.Supp. 1353, 1356-58, the factual background is fully set out in a related case, Shaw v. Garrison, 1971, E.D.La., 328 F.Supp. 390, aff'd 5 Cir. 1972, 467 F.2d 113, cert. denied 1972, 409 U.S. 1024, 93 S.Ct. 467, 34 L.Ed.2d 317. It suffices here to note that Shaw, through his executor, charges that District Attorney Garrison and the other named defendants, certain citizens of New Orleans, deprived him of his civil rights by improperly linking him with the Kennedy assassination and by conducting, as well as financing, a publicized investigation and prosecution of him for his alleged role in that national tragedy. The question presently before us arises because Shaw died after he initiated this § 1983 action but before the matter was ever brought to trial.

Upon his death on August 15, 1974, Shaw was not survived by a spouse, children, parents, or siblings. Under Louisiana law, the applicable state law if state law is applicable, pending actions for personal damages survive only in favor of certain classes of beneficiaries named in La.Civ.Code Art. 2315. 1 See J. Wilton Jones Co. v. Liberty Mutual Insurance Co., Ct.App.1971, 248 So.2d 878, writ denied, 259 La. 61, 249 So.2d 202, cited with apparent approval in

Page 982

Austrum v. City of Baton Rouge, 1973 La., 282 So.2d 434. Under Louisiana law, because Shaw has no statutory survivors an executor is a proper survivor only to actions for property damage. All parties agree that if Louisiana law applies, Shaw's § 1983 claim abates. 2

We observe at the outset that Fed.R.Civ.P. 25(a)(1) 3 does not resolve the question what law of survival of actions should be applied in this case. That rule simply describes the manner in which parties are to be substituted in federal court once it is determined that the applicable substantive law allows the action to survive a party's death. Ransom v. Brennan, 5 Cir. 1971, 437 F.2d 513, 520, cert. denied, 1971, 403 U.S. 904, 91 S.Ct. 2205, 29 L.Ed.2d 680; 3B Moore's Federal Practice P 25.04(1), at 121; Note, 44 Fordham L.Rev. 666, 667-68 (1975). This Court has previously determined that Art. 2315 of the La.Civil Code is substantive rather than procedural and consequently that "it does not clash with Rule 25(a)." Roberson v. N. V. Stoomvaart Maatschappij, 5 Cir. 1975, 507 F.2d 994, 996. We must look to the civil rights statutes themselves to determine whether Louisiana's law of survival must be applied to this action.

" Properly viewed . . . (42 U.S.C.) § 1988 instructs federal courts as to what law to apply in causes of action arising under federal civil rights acts." Moor v. County of Alameda, 1973, 411 U.S. 693, 703, 93 S.Ct. 1785, 1792, 36 L.Ed.2d 596. That section provides:

"The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of this chapter and Title 18, 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 United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party found guilty."

Page 983

In effect, § 1988 sets forth a three step process for determining the applicable substantive law in civil rights cases. First, the Court must decide whether the Civil Rights Acts are "deficient" in furnishing a remedy for the vindication of a plaintiff's civil rights. If this inquiry is answered affirmatively, we are then directed to look to state law to fill the interstices in the federal provisions. Finally, if there is state law available to fill the gap in the federal statutes, we must insure that the state law is not inconsistent with federal statutory and constitutional law.

This Court has already determined that the civil rights statutes are deficient with respect to survivorship. Brazier v. Cherry, 5 Cir. 1961, 293 F.2d 401, 408, cert. denied, 1961, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136. Other courts, including the Supreme Court, have reached the same conclusion. Moor v. County of Alameda, 1973, 411 U.S. 693, 702, n. 14, 93 S.Ct. 1785, 36 L.Ed.2d 596. Pritchard v. Smith, 8 Cir. 1961, 289 F.2d 153, 155. We therefore must apply Louisiana's survivorship law unless that law "is inconsistent with the Constitution and laws of the United States."

In analyzing whether La.Civ.Code Ann. art. 2315 is incompatible with federal law, it is important to clarify the type of action we are dealing with. As the district court stressed:

"We emphasize at the outset that we are not concerned with wrongful death actions for damages to others caused by the tort victim's death. Also to be distinguished are survival of causes of action, where the tort victim dies without bringing suit, and the question is whether a party may institute suit to recover for the tort victim's own damages."

391 F.Supp. at 1361 (emphasis in original). Instead, we are concerned with a pending action for damages, instituted by a plaintiff...

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