Green v. Carlson
| Citation | 581 F.2d 669 |
| Decision Date | 03 August 1978 |
| Docket Number | No. 77-1334,77-1334 |
| Parties | Mrs. Marie GREEN, Administratrix of the Estate of Joseph Jones, Jr. (a/k/a Roscoe Simmons), and next-of-kin of Joseph Jones, Jr., Plaintiff-Appellant, v. Norman A. CARLSON, Director, Federal Bureau of Prisons, et al., Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Charles Hoffman, Chicago, Ill., for plaintiff-appellant.
Bradley L. Williams, Asst. U.S. Atty., Indianapolis, Ind., for defendants-appellees.
Before FAIRCHILD, Chief Judge, SWYGERT, Circuit Judge, and GRANT, Senior District Judge. 1
The principal issue presented on appeal is whether a claim against federal officials for damages based on alleged constitutional violations resulting in death survives for the benefit of the decedent's estate. In dismissing the complaint for the lack of subject matter jurisdiction, the district court held that survival of this federal claim is governed by the Indiana survival statute. We do not agree and therefore reverse.
To place the issue in context, it is necessary to recite the facts as alleged in the complaint. 2 At the time of his death on August 15, 1975, Joseph Jones, Jr. was a prisoner in the federal penitentiary at Terre Haute, Indiana, serving a ten-year sentence for bank robbery. He had been diagnosed as a chronic asthmatic in 1972 when he entered the federal prison system. In July 1975, the prisoner's asthmatic condition required hospitalization for eight days at St. Anthony's Hospital in Terre Haute. Despite the recommendation of the treating physician at St. Anthony's that he be transferred to a penitentiary in a more favorable climate, Jones was returned to the Terre Haute prison. There he was not given proper medication and did not receive the steroid treatments ordered by the physician at St. Anthony's.
On August 15 Jones was admitted to the prison hospital with an asthmatic attack. Although he was in serious condition for some eight hours, no doctor saw him because none was on duty and none was called in. It was further alleged that defendant Dr. Benjamin De Garcia, the chief medical officer directly responsible for the prison medical services, did not provide any emergency procedure for those times when a physician was not present. As time went on Jones became more agitated and his breathing became more difficult. Although Jones' condition was serious, defendant Medical Training Assistant William Walters, a nonlicensed nurse then in charge of the hospital, deserted Jones for a time to dispense medication elsewhere in the hospital. On his return to Jones, Walters brought a respirator and attempted to use it despite the fact that Walters had been notified two weeks earlier that the respirator was broken. After Jones pulled away from the respirator and told Walters that the machine was making his breathing worse, Walters administered two injections of Thorazine, a drug contraindicated for one suffering an asthmatic attack. A half-hour after the second injection Jones suffered a respiratory arrest. Walters and Staff Officer Emmett Barry brought emergency equipment to administer an electric jolt to Jones, but neither man knew how to operate the machine. Jones was then removed to St. Francis Hospital in Terre Haute; upon arrival he was pronounced dead.
The plaintiff, Marie Green, filed this action as administratrix of the estate of her deceased son. Her complaint alleged that he died as the result of medical care so inappropriate as to evidence intentional maltreatment, and that the defendants' acts violated the Due Process Clause and the equal protection component of the Fifth Amendment in addition to the Eighth Amendment's prohibition against cruel and unusual punishment. Several officials and employees of the Federal Bureau of Prisons as well as the Joint Commission of Accreditation of Hospitals were named as defendants. Jurisdiction was invoked pursuant to 28 U.S.C. § 1331. Plaintiff asked for $1,500,000 in actual damages and $500,000 in punitive damages.
Pursuant to motions filed by the defendants the district court dismissed the complaint for lack of subject matter jurisdiction. The court held that the plaintiff could not satisfy the $10,000 jurisdictional requirement of 28 U.S.C. § 1331 because of the limitations on recoverable damages under the Indiana wrongful death and survival statutes. 3
The trial court recognized that an action for damages may be brought for a violation of a right guaranteed by the Constitution. Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The court further recognized that under the authority of Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), Jones could have maintained this Bivens -type action against the defendants if he had survived the alleged wrongs. The court, however, dismissed plaintiff's complaint because, in its view, survival of Jones' federal claim was governed by state law. 4
The Supreme Court recently addressed the issue of survival of a federal claim in Robertson v. Wegmann, --- U.S. ----, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978). In that case, Clay Shaw filed an action under 42 U.S.C. § 1983 against several defendants for bad faith prosecution. He died several months before the trial was set. After the executor of Shaw's estate was substituted as plaintiff, various defendants moved for dismissal of the action on the ground that the cause abated with Shaw's death. The district court thus had to determine whether the survival of the action was governed by state or federal law.
Because the action was brought under section 1983, the trial court referred to 42 U.S.C. § 1988 which provides that when federal law is deficient as to a suitable remedy, the relevant state law shall govern "so far as the same is not inconsistent with the Constitution and laws of the United States." 5 The federal civil rights laws do not provide for survival. Under Louisiana law the action would abate since no person with the requisite relationship to Shaw survived him. Both the district court and the Fifth Circuit held Louisiana law to be inconsistent with the broad remedial purposes of the Civil Rights Acts. They therefore fashioned a federal common law of survival in favor of the estate. The Supreme Court reversed.
The Court ruled that questions of inconsistency between state and federal law raised under section 1988 should be resolved by looking not only at the relevant federal statutes and constitutional provisions, but also at the policies expressed in them. The Court recognized two policies underlying a section 1983 cause of action: "(1) compensation of persons injured by deprivation of federal rights and (2) prevention of abuses of power by those acting under color of state law." 98 S.Ct. at 1995. Because of the peculiar facts of the case, the Court found that application of the state survivorship statute would not have an "independent adverse effect" on those policies. 6 The Court also noted that the state survivorship law neither excluded survival of all tort actions nor significantly restricted the types of actions that survive. The Court held the Louisiana statute not inconsistent with the underlying policies of section 1983 and therefore applicable.
Because Robertson dealt with a claim under section 1983, the Court was required to apply section 1988 and adopt Louisiana law unless that law was found to be inconsistent with "the Constitution and laws of the United States," that is, the policies underlying the Civil Rights Acts. The Court found no inconsistency. Because the instant action involves a Bivens -type claim, section 1988 has no statutory effect. Nonetheless, because actions brought under the Civil Rights Acts and those of the Bivens -type are conceptually identical and further the same policies, courts have frequently looked to the Civil Rights Acts and their decisional gloss for guidance in filling the gaps left open in Bivens -type actions. 7 Accordingly, an analysis similar to that developed in Robertson should be used in the case at bar.
We first note the absence of any applicable federal survivorship rule. Consequently, we turn to "the common law, as modified and changed by the Constitution and statutes of the (forum) State . . . ." Indiana does have a survivorship statute, but its application to this federal claim would leave the plaintiff without a remedy. 8 In determining whether application of Indiana's law is "inconsistent with the Constitution and laws of the United States," we must consider whether application of that law would frustrate the federal policies underlying Bivens. We hold that it would.
Bivens recognized the existence of a federal substantive right based directly on the Fourth Amendment and held that the courts have power to create a damage remedy for injuries suffered as a result of the violation of that right by federal officials. Numerous courts have extended the rationale of Bivens to other types of claims. 9 Such an extension should be made discreetly, but when appropriate, courts should do so. The federal policies of compensation and deterrence which underlie section 1983, noted by the Court in Robertson, are equally applicable here. Because Jones, Jr.'s estate is suing, the policy of compensating the injured person would not be thwarted by abatement. It is the second concern, prevention of abuse of power by officials, which distinguishes this case from Robertson. Unlike Shaw, Jones, Jr. is alleged to have died as a Result of the deprivation of his civil rights. In Robertson the Court expressly intimated no view about whether abatement based on state law would be allowed in that situation. We hold that the "inconsistency" which would be created by application of the state law necessitates the creation of a federal common law of survival in a case such as that before us.
The question whether a federal action...
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