Sager v. City of Woodland Park

• Citation: 543 F. Supp. 282
• Decision Date: 30 June 1982
• Docket Number: No. 81-K-1677.,81-K-1677.
• Parties: Ralph SAGER, Susan J. Sager, and Sheryl Dianne Sager, by and through her next friend and mother, Susan J. Sager, individually, Ralph Sager, and Susan J. Sager, as personal representatives and next friends of Bryan Scott Sager, Deceased, [Plaintiffs], v. CITY OF WOODLAND PARK, a Municipal corporation, Larry Iverson, and James William Parr, Jr., [Defendants]. CITY OF WOODLAND PARK, a Municipal corporation, and Larry Iverson, [Third-Party Plaintiffs], v. CITY OF COLORADO SPRINGS, a Municipal corporation, [Third-Party Defendant].
• Court: U.S. District Court — District of Colorado

543 F. Supp. 282

Ralph SAGER, Susan J. Sager, and Sheryl Dianne Sager, by and through her next friend and mother, Susan J. Sager, individually, Ralph Sager, and Susan J. Sager, as personal representatives and next friends of Bryan Scott Sager, Deceased, Plaintiffs, v. CITY OF WOODLAND PARK, a Municipal corporation, Larry Iverson, and James William Parr, Jr., Defendants.

CITY OF WOODLAND PARK, a Municipal corporation, and Larry Iverson, Third-Party Plaintiffs, v. CITY OF COLORADO SPRINGS, a Municipal corporation, Third-Party Defendant.

No. 81-K-1677.

United States District Court, D. Colorado.

June 30, 1982.

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Jeffrey I. Tompkins, Gerald A. Kimble, Jr., Colorado Springs, Colo., for plaintiffs.

J. Andrew Nathan, Denver, Colo., for defendant Parr.

Justin R. Melat, Colorado Springs, Colo., for City of Woodland Park.

J. Stephen Mullen, Leo Rector, Clara Cafaro, City Atty., Colorado Springs, Colo., for City of Colorado Springs.

MEMORANDUM OPINION AND ORDER

KANE, District Judge.

This is a civil rights action pursuant to 42 U.S.C. §§ 1983, 1985(3). This court has jurisdiction pursuant to 28 U.S.C. §§ 1343(3), 1331(a). The plaintiffs are the parents and sister of the deceased-teenager, Bryan Scott Sager. The plaintiffs allege that the defendant, James Parr, Jr., a Woodland Park police officer, while acting in the course of his employment, willfully, maliciously and without provocation or justification, shot and killed the decedent with a shotgun, in violation of the decedent's and plaintiffs' constitutional rights. The plaintiffs further allege that the defendant, Larry Iverson, the chief of police of the City of Woodland Park, and the defendant, City of Woodland Park, also violated the decedent's and plaintiffs' constitutional rights by acting with "gross negligence" and with "deliberate indifference to the safety and lives of citizens" through the implementation of inadequate training and supervision policies and procedures that proximately resulted in the decedent's killing. The defendants, Iverson and the City of Woodland Park impleaded the City of Colorado Springs, for indemnification or contribution, alleging that the City of Colorado Springs was specifically responsible for the negligent training and supervision of Woodland Park police officers, including the defendant, James Parr. This court has subject-matter jurisdiction over the third-party claim under the doctrine of pendent jurisdiction. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). This case is now before me on the defendant's motion to dismiss, the plaintiff's motion to strike affirmative defenses and the third-party defendant's motion for summary judgment, pursuant to Rules 12(b)(6), 12(f) and 56, F.R.Civ.P., respectively.

I. BACKGROUND OF THE LITIGATION

The determination of the proper interaction of the civil rights statutes and state law survival and wrongful death statutes in situations where allegedly unconstitutional conduct causes death, is necessary to the disposition of this action. The parties had requested that I not decide the pending motions until the United States Supreme Court decided a case involving some of these issues, Espinoza v. O'Dell, 633 P.2d 455 (Colo.1981), cert. dism'd, ___ U.S. ___, 102 S.Ct. 1865, 72 L.Ed.2d 237 (1982).

While waiting for the Supreme Court's decision, much has occurred in this action. There has been a complaint, two amended complaints, three sets of answers, three motions to dismiss, a third-party complaint and answer, a motion to strike affirmative defenses, a motion for summary judgment on the third-party claim and extensive briefing in support of and in opposition to all of the motions. The last such brief was filed on June 14, 1982. On May 3, 1982 the Supreme Court dismissed certiorari in Espinoza, leaving many of the issues in the instant case unresolved.¹

In order better to facilitate the disposition of this action and, given the imposing mass of pleadings, briefs, motions and unresolved law, I shall first discuss the law and then apply it to the motions and pleadings before me.

II. DISCUSSION

42 U.S.C. §§ 1983, 1985(3) and 1988 are remedial reconstruction civil rights statutes, see United States v. Price, 383 U.S. 787, 789, 86 S.Ct. 1152, 1154, 16 L.Ed.2d 267 (1966) and were enacted as part of the 1866 and 1870 civil rights acts and the Ku Klux Klan Act of 1871.² These statutes provide relief to injured parties as a result of certain civil rights deprivations. These statutes are sadly lacking in detail, however, only sketching the barest parameters of recovery. In this regard, neither 42 U.S.C. §§ 1983 nor 1985(3) describes who the injured parties are when death occurs, the nature of the claims, the types of damages recoverable or the specific source of law to turn to for enlightenment. However, there is no question that congress intended, through these statutes, to deter official lawlessness, to compensate the bereaved families for the then-rampant state and local acts of officially-condoned murder and thereby provide remedies in death cases, as well as in situations involving non-fatal injuries.

For example, President Grant's message to congress specifically referred to losses of life which prompted his request for remedial federal legislation. See Cong. Globe, 42d Cong., 1st Sess., p.244. Floor debates on the bill frequently reflected that theme. Senator Lowe of Kansas stated:

While murder is stalking abroad in disguise, while whipping and lynchings and banishment have been visited upon unoffending American citizens, the local administrations have been found inadequate or unwilling to apply the proper correction.

Id. at 374.

Similarly, Congressman Butler stated that:

This then is what we offer to a man whose house has been burned, as a remedy; to the woman whose husband has been murdered, as a remedy; to the children whose father has been killed, as a remedy.

Id. at 807.

The general rule in this area, adopted by the circuits and approved by the Supreme Court, is that § 1983 actions survive the plaintiff's death if that would be the result under the applicable state law.³See Moor v. Cty. of Alameda, 411 U.S. 693, 702-03 n. 14, 93 S.Ct. 1785, 1792 n.14, 36 L.Ed.2d 596 (1973); Brazier v. Cherry, 293 F.2d 401 (5th Cir.) cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961); see also Duchesne v. Sugarman, 566 F.2d 817, 821 (2d Cir. 1977); Beard v. Robinson, 563 F.2d 331, 333 (7th Cir. 1977), cert. denied, 438 U.S. 907, 98 S.Ct. 3125, 57 L.Ed.2d 1149 (1978); (Bivens action); Pritchard v. Smith, 289 F.2d 153 (8th Cir. 1961) (action survived the defendant's death); Salazar v. Dowd, 256 F.Supp. 220, 222-23 (D.Colo.1966). As stated by the Fifth Circuit in Brazier v. Cherry, the lead case in this area:

It defies history to conclude that congress purposely meant to assure to the living freedom from such unconstitutional deprivation but that, with like precision, it meant to withdraw the protections of the Civil Rights statutes against the peril of death. The policy of law and the legislative aim was certainly to protect the security of life and limb as well as property against these actions. Violent injury that would kill was not less prohibited than violence that would cripple.

293 F.2d at 404.

The statutory mechanism that authorizes resort to state survival law to permit civil rights actions to survive the plaintiffs death is 42 U.S.C. § 1988. Because § 1983 is silent on the question of survival, 42 U.S.C. § 1988 requires, in light of this "deficiency" that state law be used unless it is "inconsistent with the constitution and the laws of the United States."

Courts have extended this analysis to permit incorporation of state wrongful death statutes into § 1983, through § 1988. See e.g. Spence v. Staras, 507 F.2d 554, 558 (7th Cir. 1974); Mattis v. Schnarr, 502 F.2d 588, 590-91 (8th Cir. 1974), on remand, 404 F.Supp. 643 (E.D.Mo.1975) rev'd on other grounds, 547 F.2d 1007 (8th Cir. 1976), vacated on other grounds, 431 U.S. 171, 97 S.Ct. 1739, 52 L.Ed.2d 219 (1977); Kalmanash v. Wolfe, Slip Opinion Civ. 1798-CSH (S.D.N.Y., Dec. 14, 1978); Smith v. Wickline, 396 F.Supp. 555, 557-61 (W.D.Okl. 1975).

While § 1988 authorizes § 1983 actions after the true plaintiff's death, the nature of the actions differ depending on whether state survival or state wrongful death law is incorporated into the federal cause of action. Survival statutes simply allow the cause of action to survive regardless of the death of a party. Accordingly, a § 1983 survival action, relying on the incorporation of state survival law through § 1988, is essentially the assertion of the cause of action that the deceased would have had had he lived, requesting damages for violation of the decedent's rights. Wrongful death statutes, by contrast, provide for causes of action to arise in and for the benefit of certain designated persons in order to compensate them for their personal losses resulting from the decedent's death, against the persons who wrongfully caused the decedent's death. See generally Nachmod, Civil Rights and Civil Liberties Litigation, § 3.17 (1979); compare C.R.S. § 13-20-101 (1973) with C.R.S. §§ 13-21-202, 13-21-203 (1973). Section 1983 actions, relying on incorporation of state wrongful death law through § 1988, are, therefore, actions for damages to the plaintiffs by virtue of the decedent's unconstitutional killing. Such damages are not limited to, nor the same as the damages that the decedent would have been entitled to had he lived.

III. THE PLAINTIFFS' CLAIMS

In order to rule on the pending motions in this case, it is necessary that I characterize the plaintiffs' claims in accordance with the above considerations. None of the pleadings is paradigmatic. The plaintiffs' "first" claim for relief in their second amended complaint, as I read it, involves two claims for relief under the...