Jaco v. Bloechle

• Decision Date: 24 July 1984
• Docket Number: No. 82-3757,82-3757
• Citation: 739 F.2d 239
• Parties: Leanna JACO, individually and as administratrix of the estate of Carl D. Storer, deceased, Plaintiff-Appellant, v. Jerry G. BLOECHLE, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 239

739 F.2d 239

Leanna JACO, individually and as administratrix of the estate of Carl D. Storer, deceased, Plaintiff-Appellant, v. Jerry G. BLOECHLE, et al., Defendants-Appellees.

No. 82-3757.

United States Court of Appeals Sixth Circuit.

Argued Jan. 23, 1984.

Decided July 24, 1984.

Brian D. Weaver (argued), Thornburgh, Ferguson, Radabaugh & Weaver, Dayton, Ohio, for plaintiff-appellant.

Lee C. Falke, Michael Russell (argued), Dayton, Ohio, for defendants-appellees.

Before KEITH and KRUPANSKY, Circuit Judges, and WEICK, Senior Circuit Judge.

KRUPANSKY, Circuit Judge.

In this appeal from the Southern District of Ohio, Western Division, plaintiff-appellant Leanna Jaco (Jaco) has challenged the lower court's dismissal of the plaintiff's complaint for failure to state a cause of action upon which relief could be granted pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiff's son (the decedent) was shot and instantly killed by police officers following an incident in which he had reportedly been discharging firearms outside of his home. Believing the shooting unjustified, plaintiff initiated this action in district court, alleging violations of the decedent's civil rights. The police officers involved in the shooting and the Mad River Township Board of Trustees were named as defendants.

Specifically, plaintiff alleged violations of decedent's civil rights as guaranteed by the due process and equal protection clauses of the Fourteenth Amendment to the Constitution, the First, Fourth, and Fifth Amendments, and 42 U.S.C. Secs. 1983, 1985(2) and (3), 1986, and 1988. Jaco also sought compensation under Ohio's wrongful death statute, Ohio Rev.Code Sec. 2125.05. In the language of the Amended Complaint, the plaintiff "brings this action as a survivor's action on behalf of the heirs of the decedent and the wrongful death action for benefit to the beneficially titled next of kin in accordance with Ohio Revised Code 2125.01 et seq. who are plaintiff Leanna Jaco, the decedent's father Ralph C. Storer and decedent's brother David L. Storer".

The district court held that decedent's civil rights cause of action did not survive his death, and therefore granted defendant's motion to dismiss for failure to state a claim. There ensued this appeal.

The real controversy in this case is more one of standing than of the sufficiency of the complaint to state a cause of action. The resolution of the standing issue requires an examination of the interrelationship between the federal civil rights statute, 42 U.S.C. Sec. 1983, and Ohio's survival and wrongful death statutes.

Section 1983 creates a cause of action for deprivation of civil rights. ¹ By its own terminology, the statute grants the cause of action "to the party injured". Accordingly, it is an action personal to the injured party. In addressing the very issue presented herein, the United States Supreme Court in Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978), mandated that determination of the applicable survivorship rule for actions arising pursuant to 42 U.S.C. Sec. 1983, was governed by 42 U.S.C. Sec. 1988. ² In Robertson, the Court stated that:

This statute recognizes that in certain areas "federal law is unsuited or insufficient 'to furnish suitable remedies' "; federal law simply does not "cover every issue that may arise in the context of a federal civil rights action." Moor v. County of Alameda, 411 U.S. 693, 702, 703, 93 S.Ct. [1785] 1795, 1792, 36 L.Ed.2d 596 (1973), quoting 42 U.S.C. Sec. 1988. When federal law is thus "deficient", Sec. 1988 instructs us to turn to "the common law, as modified and changed by the constitution and statutes of the (forum) State," as long as these are "not inconsistent with the Constitution and laws of the United States."

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[O]ne specific area not covered by federal law is that relating to "the survival of civil rights actions under Sec. 1983 upon the death of either the plaintiff or defendant."

436 U.S. at 587, 589, 98 S.Ct. at 1994.

As noted in Robertson v. Wegmann, the law of the forum is "the principle reference point in determining survival of civil rights actions, subject to the important proviso that state law may not be applied when it is 'inconsistent with the Constitution and laws of the United States' ". 436 U.S. at 590, 98 S.Ct. at 1995. [emphasis added]. Accordingly, a review of the law of the State of Ohio as it applies in this case is in order. Ohio's survival of actions statute, Ohio Rev.Code Sec. 2305.21 reads [emphasis added]:

In addition to the causes of action which survive at common law, causes of action for mesne profits, or injuries to the person or property, or for deceit or fraud, also shall survive; and such actions may be brought notwithstanding the death of the person entitled or liable thereto.

Ohio's survivorship statute explains that "injuries to the person" survive the death of the decedent. The complaint in the instant action admits that the injury resulting from the shotgun blast caused the instant death of the decedent. In addition to the state survival act, the district court also considered the state's wrongful death statute relevant in deciding the issue of standing in this federal civil rights claim. ³

The decedent's cause of action for infringement of his civil rights, measured by the precise mandate of 42 U.S.C. Sec. 1983, cannot survive by virtue of the Ohio survival statute, Sec. 2305.21 of the Ohio Revised Code since death was instantaneous. ⁴ It is perhaps appropriate at this juncture to distinguish between survival actions and wrongful death actions. It is conceded by most courts that they are distinct causes of action. E.g., Rosa v. Cantrell, 705 F.2d 1208, 1222 (10th Cir.1982). A survival claim is predicated upon the decedent's claim for damages sustained during his lifetime. On the other hand, a wrongful death action creates a new and separate claim or cause of action for the damages sustained by decedent's estate as a result of his death. The distinction as it arises in conjunction with alleged Sec. 1983 violations is apparent. The Sec. 1983 cause of action, by virtue of the explicit language of the section itself, is a personal action cognizable only by the party whose civil rights had been violated; while, on the other hand, the wrongful death action is a cause of action that inures to the benefit of decedent's estate, as a result of, not the personal injury suffered by the decedent, but rather, injuries to his estate caused by his wrongful death. This court has consistently distinguished these separate causes of action in Jones v. Wittenberg University, 534 F.2d 1203 (6th Cir.1976), and Hall v. Wooten, 506 F.2d 564 (6th Cir.1974), interpreting Ohio and Kentucky law, respectively. This court's pronouncements in Wittenberg University and Wooten reflect a concise and accurate interpretation of both legislative enactments. The perspicuous language of both the Ohio and Kentucky statutes leaves no area for their reinterpretation. It should be noted that in both Wittenberg University and Wooten, the plaintiffs' decedents survived their injuries for a discernible period before their demise and experienced, during that period of survival, conscious pain and suffering. Accordingly, it was the period of conscious pain and suffering experienced by the plaintiffs' decedents during the interval between injury and ultimate death, not the death itself, which constituted the cause of action which survived the death of the decedent. Patently, Ohio's wrongful death statute creates a cause of action in tort in favor of the decedent's heirs for damages resulting from losses of prospective advantages which have been pretermitted by the wrongful death of the victim. Certainly, in a sense, the heirs are injured parties as a result of decedent's premature demise however, to arbitrarily conclude that their injuries resulted from an infringement of their civil rights would be sheer obfuscation of the issue. Simply stated, the wrongful death of the decedent resulting from a tort, which gives rise to the cause of action for the benefit of his heirs, is not equivalent to decedent's personal Sec. 1983 claim, and decedent's administratrix is therefore without standing in the federal forum to commence an action, pursuant to Secs. 1983 and 1988, under either the Ohio survivor or wrongful death statute. ⁵ See Jones v. Wittenberg, supra.

Having concluded that Ohio law forecloses the survival of this Sec. 1983 action, this court is constrained to again scrutinize Robertson v. Wegmann for direction. Section 1988 of Title 42, as applied by the Supreme Court in Robertson v. Wegmann, mandates this court to decide if the abatement of the decedent's civil rights action by the statutes of the forum state would be "inconsistent with the Constitution and laws of the United States". 42 U.S.C. Sec. 1988; Robertson v. Wegmann, 436 U.S. at 590, 98 S.Ct. at 1995. When the relevant state law appears "inhospitable to survival of Sec. 1983 actions", Robertson, 436 U.S. at 594, 98 S.Ct. at 1997, federal courts are directed to determine if abatement would have an "independent adverse effect on the policies underlying Sec. 1983", id.:

In resolving questions of inconsistency between state and federal law raised under Sec. 1988, courts must look not only at particular federal statutes and constitutional provisions, but also at "the policies expressed in (them)." Of particular importance is whether application of state law "would be inconsistent with the federal policy underlying the cause of action under consideration." The instant cause of action arises under 42 U.S.C. Sec. 1983, one of the "Reconstruction civil rights statutes" that this Court has accorded " 'a sweep as broad as (their) language.' "

436 U.S. at 590, 98 S.Ct. at 1995 [citations omitted]. Notwithstanding the broad interpretative range provided to the Reconstruction Acts, there is no "rule of absolute survivorship" resp...