Galindo v. Brownell
| Decision Date | 22 March 1966 |
| Docket Number | No. 64-1259.,64-1259. |
| Citation | 255 F. Supp. 930 |
| Court | U.S. District Court — Southern District of California |
| Parties | Connie GALINDO, Plaintiff, v. Ernest H. BROWNELL, Lumbermens Mutual Casualty Co., County of Los Angeles, Defendants. |
Phill Silver, Hollywood, Cal., for plaintiff.
Harold W. Kennedy, County Counsel, Robert C. Lynch, Asst. County Counsel, Los Angeles, Cal., for defendant Brownell.
Wallbert & Glaser, Maurice H. Wallbert, Los Angeles, Cal., for defendant Lumbermens Mut. Cas. Co.
The motions of defendants Ernest H. Brownell and Lumbermens Mutual Casualty Co., surety of Los Angeles County under employee performance bonds, to dismiss plaintiff's action for lack of jurisdiction and for failure to state a claim on which relief can be granted, were heard by this Court on January 7, 1966, and thereupon taken under submission. Defendants contend that plaintiff, mother and sole custodian of the minor fatally shot by defendant Los Angeles County deputy sheriff, has no standing under the Civil Rights Act, 42 U.S.C. § 1983, to bring an action for damages for alleged deprivation of the decedent's constitutional and federally protected rights. Defendants concede that the Fifth Circuit has rejected the theory advanced by their motions. In Brazier v. Cherry, 293 F.2d 401 (C.A.5 1961), certiorari denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136, it was held that the widow and administratrix of the victim of conduct alleged to be violative of the decedent's federal and constitutional rights could maintain a suit for damages under Sections 1983, 1981, and 1985(3) of the Civil Rights Act, none of which expressly provide for any recovery by the victim's legal representative. While the determination was unnecessary to the holding in Brazier v. Cherry, the court there indicated that such an action would be proper whether the recovery sought was "damages sustained by a decedent during his lifetime," commonly protected by state survival statutes, or "damages sustained by his survivors as a result of his death," commonly conferred by state wrongful death statutes. Id. 293 F.2d at 403-404, fn. 7. The benefit of such state provisions is secured to those whom the Civil Rights Act was designed to protect by Section 1988 of the Act, 42 U.S.C. § 1988, which as recodified provides in pertinent part:
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...(D.Del. 1971); Johnson v. Wilkinson, 315 F. Supp. 773 (W.D.Mo.1970); Salazar v. Dowd, 256 F.Supp. 220 (D.Colo.1966); Galindo v. Brownell, 255 F.Supp. 930 (S.D.Cal.1966). This finding is a prerequisite to the application of state law, for only where the federal laws are deficient may a court......
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