Smith v. Wickline

• Decision Date: 23 June 1975
• Docket Number: No. Civ.-75-0204-E.,Civ.-75-0204-E.
• Citation: 396 F. Supp. 555
• Parties: Thomas Eugene SMITH and Dorothy Jean Smith, his wife, Plaintiffs, v. Larry WICKLINE, Individually and as a police officer with the Oklahoma City Police Department, and I. G. Purser, Individually and as Chief of Police of the Oklahoma City Police Department, Defendants.
• Court: U.S. District Court — Western District of Oklahoma

396 F. Supp. 555

Thomas Eugene SMITH and Dorothy Jean Smith, his wife, Plaintiffs, v. Larry WICKLINE, Individually and as a police officer with the Oklahoma City Police Department, and I. G. Purser, Individually and as Chief of Police of the Oklahoma City Police Department, Defendants.

No. Civ.-75-0204-E.

United States District Court, W. D. Oklahoma.

June 23, 1975.

COPYRIGHT MATERIAL OMITTED

Mary E. Bane, of Bane & Williams, and Jim Ikard, Oklahoma City, Okl., for plaintiffs.

Robert S. Baker, Oklahoma City, Okl., for defendant Wickline.

Walter M. Powell, Municipal Counselor, and Jerry R. Fent, Asst. Municipal Counselor, Oklahoma City, Okl., for defendant Purser.

MEMORANDUM OPINION AND ORDER

EUBANKS, District Judge.

Plaintiffs, parents of a minor son killed as a result of being shot with a shotgun allegedly unjustifiably fired by the defendant WICKLINE, seek redress by way of damages, inter alia, for the deprivation under color of the Statutes of the State of Oklahoma, of rights, privileges and immunities secured to them by the Constitution of the United States.

Pursuant to Rule 12(b), Fed.R.Civ.P., both defendants move the Court to dismiss this action on several grounds, which will receive separate consideration below.

The allegations of the complaint, which the Court must presume to be true for the purposes of this motion to dismiss, present the following factual background. On the night of August 10, 1974, the deceased, John Melton Smith, a minor of 15 years of age, and a companion were in or near a vacant and abandoned house. As he and his companion fled the vacant house, defendant WICKLINE attempted to halt them by firing one or more shotgun bursts and by so doing, wrongfully and recklessly killed John Melton Smith.

DEFENDANTS URGE THAT THESE PLAINTIFFS LACK REQUISITE CAPACITY, STANDING OR INTEREST TO BRING THIS CIVIL RIGHTS ACTION

Defendants argue that under § 1983 a parent has no standing to sue for the deprivation of the civil rights of a child. Defendants rely upon Brown v. Board of Trustees of La Grange Ind. Sch. Dist., 187 F.2d 20 (5th Cir. 1951); Tyree v. Smith, 289 F.Supp. 174 (D.C.Tenn. 1968); and Armstrong v. Board of Education of City of Birmingham, Ala., 220 F.Supp. 217 (N.D.Ala.1963). However correct defendants' position may be in an appropriate context, it has no bearing on the issue now before the Court. The above cases are clearly distinguishable in that the individuals whose rights were allegedly violated were alive; indeed, Tyree v. Smith, supra, was so distinguished recently by the Court of Appeals for the Sixth Circuit in a survival action, Hall v. Wooten, 506 F.2d 564 (1974).

Plaintiffs respond that 42 U.S.C. § 1988 authorizes resort to State law, in this instance 12 O.S. §§ 1053-1054, creating a cause of action for wrongful death for the next of kin of the decedent. Plaintiffs rely upon Brazier v. Cherry, 293 F.2d 401 (5th Cir. 1961); Holmes v. Silver Cross Hospital of Joliet, Illinois, 340 F.Supp. 125 (N. D.Ill.1972); Perkins v. Salafia, 338 F. Supp. 1325 (D.C.Conn.1972); Salazar v. Dowd, 256 F.Supp. 220 (D.C.Colo.1966); and Galindo v. Brownell, 255 F.Supp. 930 (S.D.Cal.1966).

The Court concludes that the Holmes case is not sufficiently analogous to require consideration below. It involved a transfusion of blood contrary to a patient's wishes and religious convictions, in alleged violation of his civil rights. It was not claimed that the patient died as a result of the transfusion, that is, it was not claimed there was a causal relationship between the violation of his rights and death.

In the remainder of the above cases, the death was alleged to have resulted from the violation of the deceased's civil rights and these opinions will be considered below in conjunction with several recent cases cited by neither side.

At the outset, the Court distinguishes those cases relied upon which were survival actions.¹ Plaintiffs here bring a wrongful death action, and the distinction is not one without a difference. White v. B. K. Trucking Co., Inc., 371 F.Supp. 578 (D.C.Okl.1974).² It is true that in the Brazier case, supra, this distinction was considered immaterial. Indeed, the court stated that it used the words "right of survival" broadly, "as an abbreviation to include both of the distinct claims for (a) the damages sustained by a decedent during his lifetime and (b) damages sustained by his survivors as a result of his death." At 404, n. 7. However, Brazier was a suit by a surviving widow, individually and as administratrix of the decedent's estate, and the court accordingly noted, "Since Georgia now provides both for survival of the claim which the decedent had for damages sustained during his lifetime as well as a right of recovery to his surviving widow and others for homicide, we need not differentiate between the two types of actions." At 409. In this case, suit is brought by the plaintiff parents individually, and not in any other capacity.

That the distinction is one which must be made is suggested strongly, albeit in dictum, by the Court of Appeals for the Sixth Circuit in Hall v. Wooten, supra, a survival action brought against county jail officials to recover for the death of a prisoner, murdered by fellow inmates. The district court's dismissal of the complaint was reversed and the case remanded on the ground the cause of action survived the death of the injured person and could be maintained by his legal representative. In so holding, the Court of Appeals cited to Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973), in which it was stated that § 1988 is remedial only and does not confer an independent cause of action in a federal court, and concluded:

"We have held that section 1988 does not create federal causes of action for violation of civil rights. citations omitted And we observe that the survival of a cause of action is not the creation of an independent cause of action, like an action for wrongful death. It depends upon the prior existence of a cause of action for the deceased." At 568-569.

This Court emphasizes that the statement is dictum, which is particularly significant in the light of a recent decision of the Court of Appeals for the Eighth Circuit, Mattis v. Schnarr, 502 F.2d 588 (1974).

The facts in that case are comparable although not identical to those here. The defendant police officer apprehended plaintiff's minor son entering the office of a golf driving range at night for the purpose of taking money by opening an unlocked window. As he was attempting to escape arrest, the officer, following warning and intending to fire over his head, shot and killed him.

The trial court had initially held that the plaintiff had standing to bring the action under 42 U.S.C. § 1983, on the ground that § 1988 authorized resort to state law, and Missouri law permits a father to bring a wrongful death action for the death of an unmarried minor son. However, in its order denying a motion for new trial, the court changed its position on standing, concluding that no one may seek vindication for the violation of another's rights.

The Court of Appeals reversed. No appeal had been taken from that part of the trial court's order denying plaintiff's claim for damages, but it cannot be said that the holding is dictum for our purposes here, because the "critical issue" before the court was whether plaintiff had standing to seek a declaratory judgment that the state statutes permitting such use of deadly force were unconstitutional. The court's answer was in the affirmative, by reference to the Missouri wrongful death statute. At 593.

Contra to the suggestion made by the Court of Appeals for the Sixth Circuit in Hall v. Wooten, supra, the Court of Appeals for the Eighth Circuit thus deemed the wrongful death action to be remedial. So, too, have two district courts which have had occasion to determine the issue. In Galindo v. Brownell, supra, the court concluded that "resort to such remedy is necessary to render the Civil Rights Act fully effective in this case and is therefore sanctioned under 42 U.S.C. § 1988." At 931.

In Pollard v. United States, 384 F. Supp. 304 (M.D.Ala.1974), an action seeking recovery against the United States and various state officials for, inter alia, wrongful death arising out of syphilis study, the court held:

"Since there is no express federal remedy for wrongful death under the civil rights statutes (42 U.S.C. §§ 1981, 1983 and 1985), the common and statutory law of the State of Alabama must be looked to for a suitable remedy not inconsistent with the Constitution and laws of the United States. 42 U.S.C. § 1988. An action against these state defendants for the wrongful deaths of plaintiffs' decedents resulting from violations of the civil rights statutes gives rise, by virtue of Alabama's wrongful death statute, to federally enforceable claims for damages by their personal representatives." At 306.

The Court agrees with these determinations, and in so doing, refers to the reasoning of the Court of Appeals for the Fifth Circuit in the Brazier opinion, because although the specific determination may have been unnecessary to the holding, the reasoning has equally applicable force:

"§ 1988 reflects a purpose on the part of Congress that the redress available will effectuate the broad policies of the civil rights statutes.

. . . . . .

"There is nothing in this comprehensive declaration of a purpose to make a policy fully effective which would justify reading the single word `remedies' in a literal sense. . . . Used, as it was in parallel with the phrase `and punish offenses against law,' it comprehends those facilities available in local state law but unavailable in federal legislation, which will permit the full effectual enforcement of the policy sought to be achieved by the statutes. And in a very real sense the utilization of local death and survival statutes does not do more than create an effective

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