A Section 1983 Primer (12A): Survival and Wrongful Death–What Happens When a Plaintiff Dies or Has Been Killed?
There are times when a potential section 1983 plaintiff dies for reasons unrelated to his or her claim . There are other times when a potential section 1983 plaintiff may have a claim against the person or entity responsible for his or her death. It is crucial to distinguish between the two situations.
In the first, the question is whether the section 1983 claim survives the decedent‘s death so that the decedent’s legal representative can proceed with the section 1983 lawsuit. This raises a survival issue. In the second situation, the question is whether the decedent’s legal representative can bring a section 1983 claim for the decedent’s death. This raises a wrongful death issue.
Interestingly, the answers to these questions are based, as a matter of federal law, on the survival and wrongful death law of the forum state.
The Relevance of 42 U.S.C. sec. 1988 and the Silence of Federal Law on Survival and Wrongful Death
Section 1988 provides in relevant part that the jurisdiction of federal district courts must be exercised in conformity with federal law “so far as such laws are suitable to carry the same into effect.” However, section 1988 goes on to say that when federal law is deficient in the provision of suitable remedies, state statutory or common law applies, unless it is inconsistent with the Constitution or federal law, in which case that state statutory or common law is not to be applied.
Because federal law is silent on the questions of survival and wrongful death, and therefore “deficient,” section 1988 requires that the survival and wrongful death law of the forum state must be applied unless it is “inconsistent” with the Constitution or federal law.
Robertson v. Wegmann, 436 U.S. 584 (1978): Survival of Section 1983 Claims
In its only section 1983 survival case, Robertson v. Wegmann, the Supreme Court dealt with the meaning of section 1988’s “inconsistent” language in the course of explaining how survival applies to section 1983 claims.
In Robertson, plaintiff Clay Shaw sued district attorney Jim Garrison and others under section 1983 for their alleged bad faith prosecution attempts against him in connection with the assassination of President Kennedy. Shaw obtained an injunction but, before a trial on damages could be held, he died. The executor of Shaw’s estate was then substituted as plaintiff, prompting defendants’ motion to dismiss on the ground that the section 1983 action had abated. Under Louisiana law, Shaw’s action only survived in favor of certain close relatives, none of whom was alive when Shaw died. The district court refused to apply state law because it was thought to be inconsistent with federal law. Instead, the court created “a federal common law of survival in civil rights actions in favor of the personal representative of the deceased.” The Fifth Circuit affirmed, emphasizing the inconsistency between Louisiana law and the broad remedial policies of section 1983, as well as the need for uniformity in civil rights actions.
However, the Supreme Court reversed. Applying section 1988, it found that Louisiana survival law generally was both reasonable and not inconsistent with the compensation and deterrent purposes of section 1983, despite the fact that the section 1983 action abated in this unusual case. It said:
A state statute cannot be considered “inconsistent” with federal law merely because the statute causes the plaintiff to lose the litigation. . . . § 1988 quite clearly instructs us to refer to state statutes; it does not say that state law is to be accepted or rejected based solely on which side is advantaged thereby.
The Court added that its decision was to be read narrowly because Louisiana law generally was not “inhospitable” to survival of § 1983 actions and the particular result here had “no independent adverse effect on the policies underlying § 1983.” Significantly, it also observed that the case before it was far different from one in which the unconstitutional conduct actually caused the death; that is, this was not a wrongful death action.
Robertson indicates that state survival law will almost always govern the survival of section 1983 actions except in extreme situations as where, for example, state law significantly discriminates against those types of actions, including section 1983 actions, that do not survive.
The general rule, then, is that section 1983 damages actions that are intended to redress the constitutional deprivations of the decedent while he or she was alive survive the death of the plaintiff if such survival would be the result under applicable state law.
I collect circuit court decisions dealing with survival in section 4:66 of CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2016; West).
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