Spence v. Staras, No. 74-1038

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore FAIRCHILD, CUMMINGS and PELL; PELL
Citation507 F.2d 554
PartiesPearl SPENCE, Individually and as Administratrix of the Estate of Jerome W. Spence, Deceased, Plaintiff-Appellant, v. Henry D. STARAS et al., Defendants-Appellees.
Decision Date16 December 1974
Docket NumberNo. 74-1038

Page 554

507 F.2d 554
Pearl SPENCE, Individually and as Administratrix of the
Estate of Jerome W. Spence, Deceased, Plaintiff-Appellant,
v.
Henry D. STARAS et al., Defendants-Appellees.
No. 74-1038.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 16, 1974.
Decided Dec. 16, 1974.

Page 556

Mort A. Segall, Champaign, Ill., for plaintiff-appellant.

Tim Swain, II, Sp. Asst. Atty. Gen., James L. Hafele, Peoria, Ill., for defendants-appellees.

Before FAIRCHILD, CUMMINGS and PELL, Circuit Judges.

PELL, Circuit Judge.

The plaintiff Pearl Spence brought this action, under 42 U.S.C. 1983, individually and as administratrix of the estate of her deceased son, Jerome Spence, to recover damages for the deprivation of her son's civil rights. Sued as defendants were eight agents and employees of the Peoria State Hospital, an institution owned and operated by the State of Illinois. Jurisdiction was invoked under 28 U.S.C. 1343(3). The district court dismissed the plaintiff's amended complaint and the plaintiff appeals.

The original complaint alleges that the deceased was an inmate at the Peoria State Hospital and that the defendants were jointly responsible for the exclusive care, custody, and control of the deceased. According to the complaint, the deceased, who was nonverbal, had been beaten on at least twenty separate occasions prior to May 21, 1972, by fellow patients. The complaint further charges that on May 21, 1972, the deceased was again beaten by a fellow inmate; that the deceased died on June 23, 1972, as a result of this beating; that each of the defendants knew of the twenty prior assaults and beatings committed on the deceased, and knew that the deceased was nonverbal and could not call for help or defend himself when attacked, and knew that the deceased was a frequent target of assault by fellow patients, all of whom were under the care, custody, and control of the defendants; that the defendants, jointly, acting under color of state law, willfully, wantonly, recklessly, negligently, and intentionally 1 subjected the deceased to a deprivation of his right of personal security by their complete failure to provide any measure of protection for the deceased against the repeated attacks of his fellow inmates. The plaintiff, according to the complaint, has been duly qualified as administratrix of the estate of the decedent. The plaintiff seeks both actual and punitive damages.

The district court dismissed the complaint with leave for the plaintiff to amend it to allege (1) a specific constitutional violation and (2) pecuniary loss. The plaintiff amended the complaint by adding two paragraphs which alleged that the deceased had been deprived of his rights under the Fourteenth Amendment to liberty and life and that the deceased left surviving him the plaintiff as lineal next of kin, and the plaintiff sustained pecuniary loss by reason of the death of the decedent. The district court dismissed the amended complaint.

Page 557

I

In a federal civil rights action where the person who has been deprived of his rights has died, the action survives for the benefit of the estate if the applicable state law creates such a survival action. Brazier v. Cherry, 293 F.2d 401 (5th Cir. 1961), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136; Evain v. Conlisk, 364 F.Supp. 1188, 1191 (N.D.Ill. 1973); Holmes v. Silver Cross Hosp., 340 F.Supp. 125, 129 (N.D.Ill.1972). See also Baker v. F & F Investment, 420 F.2d 1191, 1196 n. 7 (7th Cir. 1970), cert. denied, 400 U.S. 821, 91 S.Ct. 40, 27 L.Ed.2d 49. Illinois does provide for the survival of an action to recover damages for injury to the decedent while he was alive (Ill.Rev.Stat. Ch. 3, 339), and for the survival of an action to recover pecuniary losses incurred by the decedent's next of kin due to the decedent's death (Ill.Rev.Stat. Ch. 70, 1 and 2). Under Illinois law, these actions must be brought in a representative, rather than an individual, capacity. Ill.Rev.Stat. Ch. 70, 2; Ill.Rev.Stat. Ch. 83, 20.

In the present case, the plaintiff sued both individually and as administratrix of her son's estate. Although the individual action must fail under Illinois law, the action brought in the plaintiff's representative capacity is propely maintainable.

II

Viewing the allegations of the amended complaint and all reasonable inferences which can be drawn from them as true, we are convinced that the plaintiff has stated a cause of action under 1983. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The defendants, as agents and employees of a state hospital, were clearly acting under color of state law. See Wheeler v. Glass, 473 F.2d 983, 985 (7th Cir. 1973). It is equally clear that the...

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125 practice notes
  • Bell v. City of Milwaukee, Civ. A. No. 79-C-927.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • March 30, 1982
    ...11, 98 S.Ct. at 1049 n. 11. The Seventh Circuit has upheld punitive damages where aggravating circumstances are proven. Spence v. Staras, 507 F.2d 554, 558 (7th Cir. 1974). Because as a general matter the limitation precludes an award of punitive damages where such is warranted to provide a......
  • Zanakis-Pico v. Cutter Dodge, Inc., No. 22987.
    • United States
    • Supreme Court of Hawai'i
    • June 14, 2002
    ...State Bank of Devils Lake, 540 F.2d 948, 953 (8th Cir.1976); Silver v. Cormier, 529 F.2d 161, 163-64 (10th Cir.1976); Spence v. Staras, 507 F.2d 554, 558 (7th Cir.1974); Gill v. Manuel, 488 F.2d 799, 802 (9th Cir.1973); Basista v. Weir, 340 F.2d 74, 87-88 (3d 32. Cutter and the court appare......
  • Soto v. Chardon, Civ. No. 79-198.
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • May 7, 1981
    ...Stengel v. Belcher, 522 F.2d 438, 444 n.4 (CA6 1975), cert. dismissed, 429 U.S. 118 97 S.Ct. 514, 50 L.Ed.2d 269 (1976); Spence v. Staras, 507 F.2d 554, 558 (CA7 1974); Caperci v. Huntoon, 397 F.2d 799, 801 (CA1), cert. denied, 393 U.S. 940 89 S.Ct. 299, 21 L.Ed.2d 276 (1968); Mansell v. Sa......
  • Jones v. McElroy, Civ. A. No. 76-1532
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • March 30, 1977
    ...matter committed to my discretion, I decline to exercise it in favor of entertaining those claims. --------Notes: 1 See Spence v. Staras, 507 F.2d 554 (7th Cir. 1974); Hall v. Wooten, 506 F.2d 564 (6th Cir. 1974); Brazier v. Cherry, 293 F.2d 401 (5th Cir.), cert. denied, 368 U.S. 921, 82 S.......
  • Request a trial to view additional results
125 cases
  • Bell v. City of Milwaukee, Civ. A. No. 79-C-927.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • March 30, 1982
    ...11, 98 S.Ct. at 1049 n. 11. The Seventh Circuit has upheld punitive damages where aggravating circumstances are proven. Spence v. Staras, 507 F.2d 554, 558 (7th Cir. 1974). Because as a general matter the limitation precludes an award of punitive damages where such is warranted to provide a......
  • Zanakis-Pico v. Cutter Dodge, Inc., No. 22987.
    • United States
    • Supreme Court of Hawai'i
    • June 14, 2002
    ...State Bank of Devils Lake, 540 F.2d 948, 953 (8th Cir.1976); Silver v. Cormier, 529 F.2d 161, 163-64 (10th Cir.1976); Spence v. Staras, 507 F.2d 554, 558 (7th Cir.1974); Gill v. Manuel, 488 F.2d 799, 802 (9th Cir.1973); Basista v. Weir, 340 F.2d 74, 87-88 (3d 32. Cutter and the court appare......
  • Soto v. Chardon, Civ. No. 79-198.
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • May 7, 1981
    ...Stengel v. Belcher, 522 F.2d 438, 444 n.4 (CA6 1975), cert. dismissed, 429 U.S. 118 97 S.Ct. 514, 50 L.Ed.2d 269 (1976); Spence v. Staras, 507 F.2d 554, 558 (CA7 1974); Caperci v. Huntoon, 397 F.2d 799, 801 (CA1), cert. denied, 393 U.S. 940 89 S.Ct. 299, 21 L.Ed.2d 276 (1968); Mansell v. Sa......
  • Jones v. McElroy, Civ. A. No. 76-1532
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • March 30, 1977
    ...matter committed to my discretion, I decline to exercise it in favor of entertaining those claims. --------Notes: 1 See Spence v. Staras, 507 F.2d 554 (7th Cir. 1974); Hall v. Wooten, 506 F.2d 564 (6th Cir. 1974); Brazier v. Cherry, 293 F.2d 401 (5th Cir.), cert. denied, 368 U.S. 921, 82 S.......
  • Request a trial to view additional results

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