Espinoza v. O'Dell

• Decision Date: 04 May 1981
• Docket Number: No. 79SC5,79SC5
• Citation: 633 P.2d 455
• Parties: Andrew ESPINOZA, individually and as Personal Representative of the Estate of Arthur Espinoza, deceased, and as guardian of Jeanne Espinoza and Judith Espinoza, minors; Arthur Espinoza, Jr., Barry Espinoza, and Beverly Espinoza, heirs-at-law of the deceased, and the Estate of Arthur Espinoza, deceased, Plaintiffs-Appellants, v. John O'DELL, Gary Graham and David Neil, Arthur Dill, Chief of Police of the City of Denver, and The City and County of Denver, Defendants-Appellees.
• Court: Colorado Supreme Court

Page 455

633 P.2d 455

Andrew ESPINOZA, individually and as Personal Representative

of the Estate of Arthur Espinoza, deceased, and as guardian

of Jeanne Espinoza and Judith Espinoza, minors; Arthur

Espinoza, Jr., Barry Espinoza, and Beverly Espinoza,

heirs-at-law of the deceased, and the Estate of Arthur

Espinoza, deceased, Plaintiffs-Appellants, v. John O'DELL, Gary Graham and David Neil, Arthur Dill, Chief

of Police of the City of Denver, and The City and

County of Denver, Defendants-Appellees.

No. 79SC5.

Supreme Court of Colorado.

May 4, 1981.

As Modified on Denial of Rehearing June 8, 1981.

Gerash & Springer, P. C., Scott H. Robinson, Denver, for petitioners.

Chesler & Makaroff, Michael V. Makaroff, Denver, for John O'Dell and Gary Graham.

Bruno, Bruno & Bruno, Louis B. Bruno, Denver, for David Neil.

Max P. Zall, City Atty., Lloyd K. Shinsato, Gregory C. Denton, Don K. DeFord, Asst. City Attys., Denver, for Arthur Dill and The City & County of Denver.

ROVIRA, Justice.

This is an appeal from the dismissal of a complaint which asserted claims on behalf of the estate of Arthur Espinoza, by the personal representative of the estate, and by the children of Arthur Espinoza, who are his heirs at law, against three police officers, the Chief of Police of Denver, and the City and County of Denver. ¹

The complaint alleged:

(1) that defendants O'Dell, Graham, and Neil, while acting under the color of their authority as Denver police officers, wrongfully shot and killed Arthur Espinoza in Denver on July 30, 1977, and that such act was done willfully, maliciously, and with a wanton disregard for the rights and feelings of the decedent and his children;

(2) that the three officers and Chief of Police Dill, while acting under color of law and as servants and employees of the City and County of Denver, conspired to intentionally deprive Arthur Espinoza, his estate, and his children of their rights, including decedent's right to life, his children's right to their father's continued life, equal protection of the law and due process of the law;

(3) that such actions on the part of the defendants deprived the decedent and his children of his and their rights, privileges, and immunities as secured by the First, Fourth, Fifth, Ninth, Ten, and Fourteenth Amendments to the United States Constitution, the Constitution of the State of Colorado, and 42 U.S.C. 1983 and 1985;

(4) that as a direct and proximate consequence of the defendant's actions, the plaintiffs were entitled to general damages in the amount of $2 million, an undetermined amount as special damages, and reimbursement for funeral and burial expenses.

The police officer defendants urged dismissal of the complaint, claiming inter alia, that "a federal wrongful death remedy does not exist pursuant to 42 U.S.C. 1983 or 1985 independent of the Colorado wrongful death remedies" and that the plaintiffs had sought no state wrongful death recovery in this case.

The Chief of Police and the City and County of Denver also moved to dismiss the complaint and, in addition to the grounds stated by the other defendants, argued that the Chief of Police was not liable under the doctrine of respondeat superior for the acts of his subordinates and that the City and County of Denver is not a "person" under 42 U.S.C. 1983 and 1985.

The trial court in reliance on Jones v. Hildebrant, 191 Colo. 1, 550 P.2d 339 (1976), cert. dismissed, 432 U.S. 183, 97 S.Ct. 2283, 53 L.Ed.2d 209 (1977), granted the motions to dismiss, holding that a federal wrongful death remedy does not exist under 42 U.S.C. 1983 or 1985 independent of state wrongful death remedies, that the Colorado Wrongful Death statute is not "inhospitable" to the underlying policies of these federal causes of action, and that, since the plaintiffs made no claims pursuant to available state death remedies, the complaint failed to state a claim upon which the relief prayed for could be granted.

The trial court also ruled that the defendant Dill could not be held liable under the doctrine of respondeat superior, and that the City and County of Denver was a municipality and not a "person" and therefore not amenable to suit under § 1983.

We reverse the trial court's dismissal of the plaintiffs' § 1983 action, affirm its dismissal of the plaintiffs' claims based on 42 U.S.C. 1985, affirm its dismissal of claims against the City and County of Denver and against Dill, and direct it to allow further amendment of the pleadings as the interests of justice require.

I.

42 U.S.C. § 1983

This case raises a number of questions relating to the nature and scope of claims arising under 42 U.S.C. § 1983 in state courts. ² This federal statute derives from § 1 of the Civil Rights Act of 1871 and was enacted under the power vested in Congress by § 5 of the Fourteenth Amendment to the United States Constitution. Broadly described, the intent of § 1983 was to create a civil remedy for persons who prove that one acting under color of state law has illegally deprived them of rights guaranteed by the federal constitution or by federal law. Section 1983 provides:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

Standing alone, § 1983 provides no protection for civil rights because it creates no independent substantive rights at all. Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979). By its plain terms the statute extends liability to those who, under color of state authority, deprive others of "any rights, privileges, or immunities secured by the Constitution and (federal) laws." Its language includes no description of the type of remedies or punishments which its violation entails. Instead, as this court recognized in Jones v. Hildebrant, supra, a right based upon a violation of § 1983 was intended by Congress to be vindicated by means of remedies and punishments established under state law, at least so far as the state law is not "inconsistent with the Constitution and laws of the United States." ³ 42 U.S.C. § 1988. See Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978); Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973). ⁴

We find that the trial court erred in ruling that a state wrongful death action was the plaintiffs' sole method of recovery in Colorado. ⁵ In order to guide the trial court in its conduct of proceedings on remand, we go on to determine whether any of the plaintiffs in this case are entitled to assert a claim for relief under § 1983 that allows a recovery of damages different from the remedies and limitations that apply to plaintiffs who might bring a comparable claim for relief under state law alone. We distinguish two possible state statutes which bear upon this question: (1) a claim for wrongful death, arising under section 13-21-202, C.R.S. 1973, brought by surviving parties whose claim is based upon a fatal injury done to the deceased; ⁶ and (2) a survival action brought under section 13-20-101, C.R.S. 1973, by the deceased's personal representative for the benefit of the estate. ⁷

In order to answer the question of remedies and limitations, we must determine whether existing state law is inconsistent with the federal policies underlying § 1983. To the extent that any fundamental inconsistency exists between the state and federal policies, a claimant under § 1983 is not limited to recovery under state law; and separate rules for recovery, consistent with federal policies, must be adopted. See Robertson v. Wegmann, supra.

A. The Claim for Relief

Relying on its interpretation of our decision in Jones v. Hildebrant, supra, the trial court ruled that a state wrongful death action was the plaintiffs' sole means of recovery. The plaintiffs did not claim damages under the wrongful death statute, but instead based their claim on § 1983 alone. Therefore, the court dismissed their suit.

In Jones v. Hildebrant, supra, the mother of the decedent stated three claims for relief in their suit: (1) battery, (2) negligence, and (3) violation of civil rights. The first two claims were based on the wrongful death statute, and the third claim was premised on § 1983. No survival action was brought by the personal representative of the deceased. In accordance with the provisions of 42 U.S.C. § 1988, we held that the state's wrongful death remedy was identical to the remedy which would be engrafted upon a § 1983 action in a federal court. For purposes of § 1983 actions in state court, we held that the substantive claims "merged," and we affirmed the trial court's dismissal of the § 1983 claim. ⁸

The present case may be distinguished from Jones in two significant respects: (1) the plaintiffs here have proceeded solely under claims that their federal rights have been violated, and (2) the personal representative of the decedent has here brought an action on behalf of the decedent himself.

Rights of action are said to "merge" when a person takes or acquires a remedy of a higher nature, in legal estimation, than the one which he already possesses for the same right, thus causing his remedies in respect to the minor right to be absorbed in those attaching to the higher one. Black's Law Dictionary at 1140 (Revised 4th ed., 1968). In Jones the application of this principle led to a dismissal of the federal claim. However, in this case the plaintiffs have elected to pursue their § 1983 claim apart from all available state-created claims for relief. The issue of the relative superiority of the claims is thus not relevant to the question of whether the...