Carlson v. Green Brief for the Lawyers' Committee for Civil Rights Under Law as Amicus Curiae

    In The

f>itpnmu? Gland uf tip? Huttrxt
October Term, 1979

No. 78-1261

Norman A. Carlson, Director, Federal 
Bureau of Prisons, et al.,

Petitioners,\r ’

Marie Green, Administratrix of the 
Estate of Joseph Jones, Jr.

On Petition for a Writ of Certiorari to the United States 
Court of Appeals for the Seventh Circuit

BRIEF FOR THE LAW YER S’ COMMITTEE FOR CIVIL  
RIGHTS UNDER LAW  AS AMICUS CURIAE

John B. Jones, Jr .
Norman Redlich 

Co-Chairmen

W illiam  L, Robinson 
Director

Norman J. Chachkin 
R ichard S. Kohn 

Staff Attorneys

Lawyers’ Committee for Civil 
Rights Under Law 
733 15th Street, N.W. 
Washington, D.C. 20005

November, 1979 Attorneys for Amicus Curiae

W ilso n  - Ep e s  Print in g  C o . ,  In c . - 7 8 9 - 0 0 9 6  - W a s h in g t o n , D .C .  2 0 0 0 1



I N D E X

INTEREST OF AMICUS CURIAE .................................... 1

STATEM ENT OF THE CASE ............ ................................... 4

SUM M ARY OF ARGUM ENT .................................................  7

AR GUM ENT—

I. The Writ of Certiorari Should Be Dismissed As
Improvidently Granted............. ....................................  9

A. The first Question Presented was neither
raised below nor considered by the Court 
of Appeals and is not properly before this 
C ou rt............. ................. ............................    9

B. The other “Question Presented” incorporates
a misinterpretation of Indiana law, correc­
tion of which is not “ independently worthy 
of plenary review” through this Court’s cer­
tiorari jurisdiction ......... .... .................................. 13

II. Federal Common Law Was Properly Applied By
The Court Below In This Action To Redress
The Deprivation Of Joseph Jones’ Constitutional
R igh ts...... - .......         18

Introduction ______________________________________  18

A. A t least where death is alleged to have re­
sulted from unconstitutional actions, federal 
common law should govern the question of 
survival of the right of action to be brought 
by a decedent’s estate or personal representa­
tive ____            20

B. In the circumstances of this case, the Indi­
ana law of survival is inconsistent with the 
purposes of the federal cause of action and 
was properly rejected by the court below in 
favor of federal common law ........ .....................  29

Page



11

IN D E X — Continued

1. Indiana’s wrongful death statute does
not apply to this law suit............. .......... ........ 29

2. Indiana’s survival statute is also inap­
plicable to this lawsuit ...... .......... ............. . 32

3. Allowing this action to abate because the 
forum state’s law failed to provide for its 
survival would be flagrantly unjust and 
contrary to the goals of compensation and 
deterrence which are served by creation
of the action______ ____ _____ ______ ______ 32

4. If the district court was correct in ap­
plying the Indiana “wrongful death” 
statute, it nevertheless erred in adopting 
the limitations on recoverable damages of
that provision ............. ............. ......................... 36

CONCLUSION  .....................................................................  39

Page



I l l

TABLE OF AUTHORITIES
Cases: Page

Basista v. Weir, 340 F.2d 74 (3d Cir. 1965).............. 23
Beard v. Robinson, 563 F.2d 331 (7th Cir. 1977),

cert, denied, 438 U.S. 907 (1978) __ _________ 7n, 30n
Bivens v. Six Unknown Named Agents, 403 U.S.

388 (1971) ............. ............ .................... ...........18, 21n, 23, 24
Bocek v. Inter-Ins. Exch. of Chicago Motor Club,

60 Ind. Dec. 30, 369 N.E.2d 1093 (Ct. App.
1977) ........ ................... .......................... .......................... 14

Bolling v. Sharpe, 347 U.S. 497 (1954) ...................  19n
Bostic v. United States, 402 U.S. 547 (1971).........  18
Carey v. Piphus, 435 U.S. 247 (1978) ............. 3n, 29n, 33n
Charles Dowd Box Co. v. Courtney, 368 U.S. 502

(1962) ________________ ____ ___________ ________ _ 26n
Childs v. Rayburn, 52 Ind. Dec. 404, 346 N.E.2d

655 (Ct. App. 1976) ...................................... ....... . 6n
Clearfield Trust Co. v. United States, 318 U.S. 363

(1943) _______________ _____ _____________ ________ _.21n, 22
Crosswhite v. Brown, 424 F.2d 495 (10th Cir.

1970) ................ .................................................................
Davis v. Passman, -------  U.S. ------- , 60 L. Ed. 2d

846 (1979) ................................... ....................................
District of Columbia v. Carter, 409 U.S. 418

(1973) ..................................................................................
Duignan v. United States, 274 U.S. 195 (1927)___
Estelle v. Gamble, 429 U.S. 97 (1976) .............. .......
Farmers Educ. & Coop. Union v. W D A Y , 360

U.S. 525 (1959) ......... .................................................
Hicks v. Miranda, 422 U.S, 332 (1975) ............. ......
Illinois v. City of Milwaukee, 406 U.S. 91 (1972)..
Imbler v. Pachtman, 424 U.S. 409 (1 9 7 6 )_________
Ingram v. Steven Robert Corp,, 547 F.2d 1260 (5th

Cir. 1977) ....................... ...... ...........................................
International Union v. Hoosier Cardinal Corp., 383

U.S. 696 (1966) .................. ....... .............. ...25, 26, 27n, 28n
Iowa Beef Packers, Inc. v. Thompson, 405 U.S.

228 (1972) ........... ...............................................
J.I. Case Co. v. Borak, 377 U.S. 426 (1964)

30n

19

26
9

4, 35

21n 
12 

2 In 
29n

25n

18
21n



IV

TABLE OF AUTHORITIES— Continued

Jackson County v. United States, 308 U.S. 343
(1939) ............ .................................................... ...... .... ....  22n

Jones v. Hildebrant, 432 U.S, 183 (1977) ...3 ,15 ,1 6 , 20n,
31, 35, 36

Jones v. State Bd. of Educ., 397 U.S. 31 (1970).... 18
Klimas v. International Tel. & Tel. Corp., 297 F.

Supp. 937 (D.R.I. 1969) ........... .................................. 31
Local 174 v. Lucas Flour Co., 369 U.S. 95 (1962) ..21n, 26n 
Madison v. Wood, 410 F.2d 564 (6th Cir. 1969).... 30n
McAllister v. Magnolia Petroleum Co., 357 U.S.

221 (1958) ............................... ................................... ....  21n
McCarthy v. Bruner, 323 U.S. 673 (1944)...............  18
McClanahan v. Morauer & Hartzell, 404 U.S. 16

(1971) ...............................................................................-  18
Mollitt v. Loe, No. 78-1260_______ _________________  10,11
Moragne v. States Marine Lines, Inc., 398 U.S.

375 (1970) ............. .......... ........... ................................ . 27 ,29
National Metropolitan Bank v. United States, 323

U.S. 454 (1945) .................................... ......................... 21n
Needelman v. United States, 362 U.S. 600 (I960).. 18
Palmieri v. Florida, 393 U.S. 218 (1968) ____ ____  18
Pickens v. Pickens, 255 Ind. 119, 263 N.E.2d 151

(1970) ...................... ........... ..... ............. ...........................  14
Pierson v. Ray, 386 U.S. 547 (1967) ........... ..............  29n
Procunier v. Navarette, 434 U.S. 555 (1 97 8 )....... 10
Robertson v. Wegmann, 436 U.S. 584 (1978)____ passim
Runyon v. McCrary, 427 U.S. 160 (1976) ............... 30n
Sea-Land Services v. Gaudet, 414 U.S. 573 (1974).. 15, 29,

36n
Sola Elec. Co. v. Jefferson Elec. Co., 317 U.S. 173

(1942) .............. ........................................... ............. ......... 22n
Tacon v. Arizona, 410 U.S. 351 (1 9 7 3 )___________  lOn
Textile Workers Union v. Lincoln Mills, 353 U.S.

448 (1957) ............. ................................. .......................2 In, 26n
The Harrisburg, 119 U.S. 199 (1886) ......................  29
The Tungus v. Skovgaard, 358 U.S. 588 (1959).... 29
Tunstall v. Brotherhood of Locomotive Firemen &

Enginemen, 323 U.S. 210 (1944) ........................ . 21n

Page



V

TABLE OF AUTHORITIES— Continued

Tyrrell v. District of Columbia, 243 U.S. 1 (1917).. 18
United States v. Little Lake Misere Land Co., 412

U.S. 580 (1973) _______ ___ _________________2 2 ,2 7 ,2 8 ,3 1
United States v. Ortiz, 422 U.S. 891 (1975) ............  12
Williams v. Zuckert, 371 U.S. 531 (1963) ............ 18
W olf v. Weinstein, 372 U.S. 633 (1963) ___ .._____ 18
Youakim v. Miller, 425 U.S. 231 (1976) ............ ...9 ,10, 12

Statutes:
...... 3n, 4
......  21n
___  19n
__ passim
__ passim
5, 6 ,13 , 32
5, 6 ,14 , 36

6n

Other Authorities:
Monaghan, The Supreme Court, 1974 Term— Fore­

word: Constitutional Common Law, 89 Harv.
L. Rev. 1 (1975) ____   22n

Note, Federal Common Law, 82 Harv. L. Rev.
1512 (1969) _________ _________ ______ ____ ________ 22,23

Note, Wrongful Death Actions in Indiana, 34 Ind .
L.J. 108 (1958-59) __________      14

Page, State Law and the Damages Remedy Under 
the Civil Rights A ct: Some Problems in Fed­
eralism, 43 De n . L.J. 480 (1 9 6 6 ) ...........................  37n

Theis, Shaw v. Garrison: Some Observations on 
42 U.S.C. § 1988 and Federal Common Law, 36 
La. L. Rev. 681 (1 97 6 )......... ..................... ................ 31n

Brief for the Lawyers’ Committee for Civil Rights 
as Amicus Curiae, Robertson v. Wegmann, 436
U.S. 584 (1978) ............ ................................... ........... ....  21n

Brief for the Lawyers’ Committee for Civil Rights, 
et al. as Amici Curiae, Jones v. Hildebrant, 432 
U.S. 183 (1977) ........................................ ........... ...... 20n, 36n

Page

28 U.S.C. § 1 3 3 1 ________
28 U.S.C. § 1652 ________
28 U.S.C. § 2680(h) ____
42 U.S.C. § 1983 ...............
42 U.S.C. § 1988 ________
Ind. Code Ann. § 34-1-1-1 
Ind. Code Ann. § 34-1-1-2 
Ind. Code Ann. § 34-1-1-8



In The

0tt]mnttr (£mrt of tljp llmtpft Staten
October Term, 1979

No. 78-1261

Norman A. Carlson, Director, Federal 
Bureau of Prisons, et a l ,

Petitioners,

Marie Green, Administratrix of the 
Estate of Joseph Jones, Jr.

On Petition for a Writ of Certiorari to the United States 
Court of Appeals for the Seventh Circuit

BRIEF FOR THE L A W YE R S’ COMMITTEE FOR CIVIL  
RIGHTS UNDER L A W  AS AMICUS CURIAE

IN TEREST OF AM ICUS CURIAE *

The Lawyers’ Committee for Civil Rights Under Law 
was organized in 1963 at the request of the President 
of the United States to involve private attorneys through­
out the country in the national effort to assure civil 
rights to all Americans. The Committee’s membership 
today includes two former Attorneys General, several 
past Presidents of the American Bar Association, a num­
ber of law school deans, and many of the nation’s lead-

* Letters from counsel for the parties to this action consenting 
to the filing of this brief have been tendered to the Clerk pursuant 
to Sup. Ct. Rule 42(2).



2

Ing lawyers. Through its national office in Washington, 
D.C. and its offices in Jackson, Mississippi and eight 
other cities, the Lawyers’ Committee over the past six­
teen years has enlisted the services of over a thousand 
members of the private Bar in addressing the legal 
problems of minorities and the poor in voting, education, 
employment, housing, municipal services, the administra­
tion of justice, and law enforcement.

For many years, the Committee has been actively in­
volved in litigation on behalf of racial minority persons 
seeking redress for violations of their constitutional 
rights. Although most of this litigation was brought 
against state officials pursuant to 42 U.S.C. § 1983, the 
Committee has also provided assistance to individuals 
pursuing claims of racial discrimination by officers of the 
federal government. As a result of its experience in 
such lawsuits, amicus is particularly concerned about the 
availability of an effective federal remedy for misconduct 
by law enforcement and correctional officials which re­
sults in the death of the victim.1 This interest motivated 
the Committee’s amicus participation on several occasions 
over the past several Terms, as this Court grappled with 
the relationship between state procedural law and federal 
damages actions for violations of constitutional rights.

1 While blacks and other minorities are by no means the exclu­
sive victims of such brutality, the truth of the matter is that there 
is frequently a connection between race and official lawlessness. 
The plaintiff’s complaint in this case, for example, states that dur­
ing the period from January 6 to August 14, 1975, four prisoners 
at the Federal Prison at Terre Haute, Indiana.—all of them black 
— died after receiving medical “care” so abysmal as to evidence 
intentional maltreatment. The Complaint alleges that the fact that 
all of those who died were black is not coincidental, that non-white 
prisoners were the last to receive what meager medical attention 
was available and were the last to be admitted to the prison hos­
pital. The Complaint alleges that the course of events preceding 
Joseph Jones’ death “was caused in part by the fact that the de­
ceased was black, and he was denied basic humane medical treat­
ment, which resulted in his death, on the basis of race, . . .” (R. 
4, 10).



3

In Jones V. Hildebrant, 432 U.S. 183 (1977) and 
Robertson v. Wegmann, 436 U.S. 584 (1978), we sug­
gested in amicus briefs that borrowing state survival and 
wrongful death statutes in actions brought under the 
Civil Rights Act of 1871, 42 U.S.C. § 1983, would cause 
many victims of official misconduct to be deprived of any 
effective remedy and would undermine the deterrent pur­
poses of the legislation. Because of provisions which 
limit the amount of damages recoverable, or which per­
mit recovery only by designated survivors, such statutes 
in many instances will cause a § 1983 action to abate 
if they are controlling on the procedural aspects of the 
suit. That result is not consonant with the purposes 
underlying constitutional tort litigation.

In this suit to redress an alleged violation of the Fifth 
Amendment, the petitioners seek to escape from being 
held fully liable for their unconstitutional actions by re­
quiring that the court hearing the suit adopt the dam­
ages limitations of the forum state’s “wrongful death” 
statute.2 Petitioners claim that statute is applicable even 
though the Complaint, and the record, clearly establish 
that respondent brought this action on behalf of her 
son’s estate, and not to recover for an injury to her own 
property interests. Compare Jones V. Hildebrant, supra, 
432 U.S. at 187-88. Further, they claim that the law of 
the forum state is not “ generally inhospitable” to con­

2 The immediate result of applying Indiana’s damages limitation 
in the manner suggested by petitioners would be to cause dismissal 
of this federal lawsuit for failure to meet the jurisdictional amount 
requirement of 28 U.S.C. § 1331. But even, if respondent’s timely 
federal action were held to toll the applicable statute of limitations 
so that she could refile her Fifth Amendment claim in an Indiana 
court, see Jones V. Hildebrant, supra, the state’s limitation on 
recovery of damages will be given application with full force to 
prevent an award of punitive damages—sought in the Complaint— 
even though the right to recover punitive damages for violations 
of constitutional rights has been recognized by this Court. Carey 
v. Piphus, 435 U.S. 247, 257 n .ll (1978) (dictum).



4

stitutional tort actions even though its “ survival” statute 
would plainly require abatement in all cases in which 
death is alleged to have resulted from the constitutional 
violation complained of. Compare Robertson v. Wegmann, 
swpra, 436 U.S. at 594.

Because we believe that petitioners have incorrectly 
considered Indiana’s “wrongful death” and “ survival” 
statutes to be interchangeable, and because the result 
sought by petitioners can be achieved only by diluting 
the choice-of-law principles announced by this Court in 
Robertson v. Wegmann, supra, the Lawyers’ Committee 
files this amicus brief.

STATE M E N T OF THE CASE

This is a suit for damages based upon the federal 
Constitution, seeking redress for the death of Joseph 
Jones, who died while a prisoner at the federal peni­
tentiary at Terre Haute, Indiana. The plaintiff (re­
spondent here) is Marie Green, the decedent’s mother. 
She brought this suit as administratrix of her son’s es­
tate. The most basic factual allegations of the Complaint 
about Jones’ death are adequately set forth in petitioners’ 
Brief.

The district court held that the Complaint stated a 
constitutional claim under Estelle v. Gamble, 429 U.S. 
97 (1976), and that if Jones were alive he could main­
tain an action under 28 U.S.C. § 1331. But because, 
at common law, death extinguished any cause of action 
personal to a decedent, the court held that respondent’s 
suit could be maintained only if it were permitted under 
Indiana law. The district judge ruled that “ it is apparent 
that the plaintiff seeks the benefit of the [Indiana] 
wrongful death statute to provide her with standing [sic] 
to bring this action on behalf of her son’s estate,” and 
that under that statute respondent’s recovery could not



5

possibly amount to $10,000.® Therefore, the court ruled 
that it lacked subject matter jurisdiction.4 The action 
was dismissed.

3 Where a decedent leaves no spouse or dependent next of kin, 
Indiana’s wrongful death statute limits recovery to reasonable 
medical and funeral expenses and the costs of estate administration. 
See note 40 infra,.

4 In dismissing the plaintiff’s action on January 10, 1977, the 
district court said (Pet. App. 25a-27a) :

With respect to the jurisdictional amount issue herein, the 
Court is aware that “ liberal standards” are to be used in 
ascertaining the existence of the necessary amount in contro­
versy in cases brought under § 1331 alleging a constitutional 
denial. Calvin V. Conlisk, 520 F.2d 1, 9 (7th Cir. 1975), vac. 
on other grounds, 424 U.S. 902 (1976). In light of such stand­
ard, the Court believes that given the serious allegations of the 
complaint herein if Jones were alive today he could properly 
maintain an action under § 1331 alleging a denial of proper 
medical treatment. Estelle V. Gamble, supra. However, since 
Jones has died neither leaving any dependents nor having in­
curred medical or burial expenses sufficient to satisfy the 
$10,000 requirement, it is not possible for the plaintiff herein 
to maintain this action under the Indiana wrongful death or 
survival statutes. Ind. Ann. Stats. §§ 34-1-1-1-34-1-1-2 (Burns 
Code Ed.). Although the plaintiff insists in her brief that this 
is not an action “ for pecuniary loss of support” based on any 
state statutes like the above, the Court believes that such 
statutes are the sole mechanism by which the personal repre­
sentative of a decedent’s estate may maintain an action for 
damages arising from the decedent’s death. The plaintiff obvi­
ously is attempting to avoid the limitations on recovery in­
herent in the statutory remedy and characterizes this as an 
action “ of the Estate of one who was deprived of fundamental 
human rights suing for justice in the form of money damages.” 
The court does not believe that such an action exists other 
than as set out in the wrongful death and survival statutes.

It is recognized that one person may not generally seek 
redress for constitutional deprivations suffered by another. 
United States v. Raines, 362 U.S. 17 (1960). At common law, 
the plaintiff herein could not have maintained an action such 
as this on behalf of the decedent’s estate since such actions 
did not generally survive the injured person’s death. It is ap­
parent the plaintiff seeks the benefit of the wrongful death 
statute to provide her with standing to bring this action on 
behalf of Jones’ estate, but yet she asserts such statute is



6

On appeal, the Seventh Circuit agreed with the con­
clusion that a direct constitutional action for damages 
was proper. Turning to the question of the survival of 
that cause of action, the Court of Appeals determined 
to apply the principles and analysis of Robertson v. 
Wegmarm, 436 U.S. 584 (1978), even though respond­
ent’s suit was not based on 42 U.S.C. § 1983. Accord­
ingly, the Court of Appeals examined the law of the 
forum state concerning survival of actions.

Indiana has both a “ survival” statute (Ind. Code Ann. 
§ 34-1-1-1) and a “wrongful death” act (Ind. Code Ann. 
§ 34-1-1-2) .* 5 The district court had not discussed the 
state’s “ survival” statute, but the Court of Appeals recog­
nized that it was inapplicable to this case because it 
furnishes a survival mechanism only when death results 
from injuries other than those which are the basis of the 
cause of action.

The Court of Appeals then rejected the district judge’s 
assumption that the vehicle for respondent’s suit was 
Indiana’s “wrongful death” act. As administratrix, the 
panel held, respondent was asserting her son’s cause of 
action, and not (as authorized by wrongful death statutes) 
a cause of action for losses, occasioned by his death, to 
her as a survivor.

Under these circumstances, the Court of Appeals stated, 
the creation of federal common law permitting survival 
of the action was necessary to effectuate the policy of

not applicable to her action. The plaintiff should not be able to 
accept the benefits conferred by such statutes without assum­
ing the limitations imposed therein as well.

5 Indiana law also creates a distinct wrongful death action for 
the death of a child, Ind. Code Ann. § 34-1-1-8, but if a child has 
been emancipated, and is not in the service of the parent, any 
action must be brought under § 34-1-1-2. See Childs V. Rayburn, 52 
Ind. Dec. 404, 346 N.E.2d 655, 660 (Ct. App. 1976). It is clear that 
§ 34-1-1-8 has no application to this case.



7
vindicating constitutional rights which is the basis for 
the federal cause of action. 581 F. 2d at 674.6

SU M M ARY OF AR GUM ENT

I. The writ of certiorari should be dismissed as im- 
providently granted.

A. The question whether an adequate Federal Tort 
Claims Act remedy exists which makes it unnecessary 
to permit respondent to assert a cause of action directly 
under the Fifth and Eighth Amendments to the Constitu­
tion was never raised below. No basis for departing 
from this Court’s usual practice of limiting review to 
issues which have been, passed upon by the lower courts 
has been demonstrated by petitioners.

B. The survivorship question, as framed by the pe­
titioners, is simply not in this case. Petitioners have 
assumed that Indiana’s “wrongful death” statute is ap­
plicable, but that statute creates a cause of action quite 
distinct from the constitutional claims asserted by re­
spondent as the legal representative of her son’s estate. 
For precisely this reason, the court below ruled explicitly 
that the “wrongful death” statute was irrelevant to this

6 In additional support of its conclusion, the Court of Appeals 
noted the desirability of uniformity in. actions against federal 
officials. It pointed out that the same action would have survived 
under Illinois law, which the court had recently “borrowed” pur­
suant to § 1988 in Beard V. Robinson, 563 F.2d 331 (7th Cir. 
1977). The Court expressed its belief that the liability of federal 
agents for violating constitutional rights should not depend upon 
where the violation, occurs, and it suggested that because federal 
prison authorities decide the prison facility in which an individual 
will be incarcerated, in a sense they choose the place where the 
wrong occurs. 581 F.2d at 675.

It is significant that, because neither of Indiana’s statutes were 
applicable to respondent’s cause of action, the Court of Appeals 
properly gave no consideration to the issue which is the main focus 
of petitioners’ Brief—whether limitations on damages contained in 
state survival statutes would defeat the federal policies of com­
pensation and deterrence underlying a Bivens-type action.



8

suit, and petitioners have not sought review of that hold­
ing. On the other hand, petitioners appear to concede 
sub silentio that creation of federal common law is war­
ranted to keep this action from abating under Indiana’s 
“ survival” statute.

II. The Court of Appeals was right in applying fed­
eral common law to allow this action to go forward and 
to vindicate Joseph Jones’ constitutional rights.

A. In suits to redress the violation of federal rights, 
at least where the deprivation of these rights is alleged 
to have caused death, the ability of the victim’s estate 
or next-of-kin to recover damages for invasion of the 
decedent’s rights cannot turn upon state survival law. 
Only by creating a uniform federal law of survival ap­
plicable to such cases can this Court carry out the twin 
goals of compensating the victim and deterring illegal 
conduct which lie at the root of the federal cause of 
action.

B. If survival of Joseph Jones’ cause of action to 
recover damages for the violation of his constitutional 
rights is to depend upon an examination of Indiana 
law rather than a uniform federal rule, nevertheless the 
judgment below was proper. The only Indiana law rele­
vant to respondent’s cause of action imposes an absolute 
bar to vindication of Jones’ constitutional rights and, 
according to principles developed in decisions of this 
Court under 42 U.S.C. § 1988 and the Rules of Decision 
Act, federal common law which avoids that result must 
be developed and applied to this case. If the foregoing 
conclusions are incorrect and this Court reaches the issue 
of the validity of the damages limitations in Indiana’s 
“wrongful death”  statute in a federal cause of action 
to redress death-producing constitutional violations, it 
should find those limitations inapplicable to this lawsuit. 
Otherwise federal officials will be subject to no credible 
deterrent against unconstitutional conduct so long as 
it results in death, rather than merely in injury.



9

AR GUM ENT

I

THE W R IT OF CERTIORARI SHOULD BE 
DISM ISSED AS IM PR OVIDEN TLY GRANTED

A. The first Question Presented was neither raised below 
nor considered by the Court of Appeals and is not 
properly before this Court.

The government discloses in footnote 9 of the Brief for 
Petitioners that in the Court of Appeals, it did not argue 
that the Federal Tort Claims Act provides an adequate 
remedy for deprivations by federal officers of rights 
guaranteed by the Eighth Amendment, making implica­
tion of a constitutional cause of action unnecessary. While 
it is true that, in certain exceptional circumstances, this 
Court will decide issues not raised below, see, e.g., 
Duignan V. United States, 274 U.S. 195, 200 (1927), 
petitioners offer no such justification for doing so in this 
case.

In Youakim v. Miller, 425 U.S. 231 (1976),7 cited by 
petitioners, a unique combination of circumstances 8 jus­

7 The plaintiffs in Youakim had unsuccessfully attacked Illinois’ 
foster care payment program on Equal Protection Clause grounds, 
then sought in the Jurisdictional Statement to add a claim that the 
Illinois system was in conflict with the Social Security Act. This 
Supremacy Clause claim had not been presented to the District 
Court as a separate ground for challenging the state law. 42:5 U.S. 
at 233. This Court addressed the Supremacy Clause issue, but 
only to the limited extent of vacating the judgment below and re­
manding the case for consideration of the claim.

8 The circumstances were: (a) attacks on state welfare statutes 
frequently combine Equal Protection and Supremacy Clause issues ; 
(b) the statutory issue was not foreign to the subject matter of 
the complaint; (e) the complaint had alleged as a “ factual” matter 
that the Illinois scheme conflicted with federal policy as set forth 
in the Social Security Act; (d) statements in the district judge’s 
opinion strongly suggested that if the conflict issue had been ad­



10

tified an exception to the usual rule limiting review to 
matters preserved in the lower courts. The Order in 
that case vacating the judgment and remanding to the 
district court for further proceedings served the sub­
stantial interest of avoiding a decision of constitutional 
magnitude where the case might be disposed of on other 
grounds. 425 U.S. at 236. Similar circumstances or 
policy interests are absent from this case.9 The Federal 
Tort Claims Act argument made its first appearance in 
this case in the Petition for Writ of Certiorari and is 
unrelated to any argument made below. Cf. Procunier 
V. Navarette, 434 U.S. 555 (1978).

Petitioners advance three grounds not present in 
Youakim as a basis upon which the Court should exercise 
its discretion to hear the Tort Claims Act issue in this 
case. First, they argue that the issue mistakenly be­
lieved raised in this case was in fact properly preserved 
in Moffitt V. Loe (No. 78-1260). The government’s pe­

vanced as a separate ground for decision, it would have been re­
jected; (e) between the time the Jurisdictional Statement was filed 
and the date probable jurisdiction was noted, the Department of 
HEW had issued special instructions which had a direct bearing 
on the issue; and (f) the Solicitor General had filed a brief in this 
Court stating the view of the government that the Illinois foster 
care program was inconsistent with the Social Security Act.

9 Indeed, the situation before the Court is more closely analogous 
to that in Tacon V. Arizona, 410 U.S. 351 (1973). The petitioner 
in that case had been tried, convicted and sentenced in absentia 
in state court. On his direct appeal in the state court, he argued 
that under the circumstances (he was unable to appear on the trial 
date due to lack of travel funds), the evidence was insufficient to 
show a voluntary and intelligent w'aiver of his right to be present 
at his trial. This Court refused to consider a different question 
presented in his petition for certiorari: whether a state can, con­
sistent with the Constitution, try a person in absentia who has left 
the state and cannot return for lack of funds. The Court held 
that these broad issues were not passed upon by the state Supreme 
Court, and that the only related issue (the question of waiver) 
was primarily factual and did not justify the exercise of the 
certiorari jurisdiction.



11

tition for certiorari in that matter seeks review of a 
Fourth Circuit ruling which it says encompasses the 
Tort Claims Act question but requests that the Court 
defer action pending disposition of the case sub judice. 
Assuming arguendo that it would be appropriate to con­
sider an issue never raised below in one case because it 
was preserved in another,10 an examination of the Court 
of Appeals’ opinion and the petition for certiorari in 
MoffiM v. Loe shows that the Tort Claims Act issue is 
not fairly presented in that case either.11

10 Petitioners cite no authority for this novel proposition, and 
our research has disclosed none.

11 Loe filed suit against federal officers, state officers, and state 
employees claiming that they had deliberately denied him. adequate 
medical treatment for a broken arm sustained by him while being 
held in a local jail in pretrial federal custody. His complaint was 
dismissed for failure to state a claim upon which relief could be 
granted. After that dismissal, Loe filed two subsequent complaints 
essentially repeating the allegations of the original pleading. These 
were also dismissed, on grounds of res judicata,. All three rulings 
were appealed by Loe, and during oral argument in the Fourth 
Circuit on the consolidated appeals, Lae’s counsel conceded that the 
second and third complaints did not raise any new issues, and that 
a decision as to the initial complaint would be dispositive. Petition 
for Certiorari in No. 78-1260, at 3a n.l. Thus, the Court of Appeals 
addressed only the initial complaint. As described by that court:

The questions before us are whether Loe alleged a cause of 
action against the state defendants, whether he has a cause 
of action against the federal defendants, and, if so, whether 
he sufficiently alleged it. Id.

In its petition for certiorari in Loe, the government does not seek 
review of any substantive holding by the Court of Appeals. In­
stead, it alleges that one of the subsequent complaints filed by 
Loe sought relief under the Federal Tort Claims Act, id. at 6-7, 
and that this complaint was “ dismissed erroneously [by the district 
court] on the ground of res judicata,” id. at 8 n.8. The Question 
Presented by the Petition, however, is whether a remedy for con­
stitutional violations can be implied where the Federal Tort Claims 
Act provides an adequate federal remedy. Id. at 2.

This Question Presented in Loe is simply not raised by the record. 
Neither the majority of the Court of Appeals nor the dissent made 
any mention of the Tort Claims Act, much less decided the question



12

Second, the government suggests that the survivor­
ship issue is “ independently worthy of plenary review” 
and therefore, as a matter of sound judicial administra­
tion, the Court should decide the Tort Claims Act issue 
as well. Acceptance of this argument would consti­
tute a precedent that, so long as one issue was “ independ­
ently worthy of plenary review,” other collateral questions 
would be entitled to consideration if included among the 
Questions Presented. Such a disposition would add a new 
dimension to the recognized rule that a prevailing party 
may make alternative arguments, although not passed 
upon by the lower courts, in support of his judgment. 
Acceptance of the petitioners’ submission would mean that 
a losing party could advance novel legal theories for the 
first time in this Court by the simple expedient of in­
cluding them in the “ Questions Presented” and then argu­
ing that “ efficient judicial administration” requires that 
they be heard. It is difficult to see how the Court could 
entertain the petitioners’ suggestion without undermin­
ing Youakim and the Court’s many other relevant prece­
dents. E.g., United States v. Ortiz, 422 U.S. 891, 898 
(1975) ; Hicks V. Miranda, 422 U.S. 332, 338 n.5 (1975). 
In any event, for the reasons discussed in Argument 
I.B. below, amicus believes that the survival issue is 
not “ independently worthy of plenary review” because 
it is based upon a fundamental mischaracterization of 
Indiana’s “wrongful death” act as a “ survival” provision.

Finally, petitioners find it significant that the respond­
ent addressed the merits of the claim in the Brief in 
Opposition to Certiorari. This, of course, is no reason at

on its merits. The dismissal on res judicata grounds of Loe’s com­
plaint which apparently sought relief under the Act is the law of 
the case. While Loe appealed that ruling to the Fourth Circuit, his 
separate Tort Claims Act contention was abandoned during the oral 
argument. The government cannot bootstrap the Federal Tort 
Claims Act issue in the instant case by arguing that it was properly 
raised in Loe.



13

all for the Court to vary its usual rule. There is no 
operative concept of waiver or estoppel which should in­
fluence this Court’s determination whether an issue is in 
the proper posture and merits discretionary review.

In view of the fact that the Federal Tort Claims Act 
question was neither presented nor decided below, the 
Court should not reach the first Question Presented in 
the government’s petition.

B. The other “Question Presented” incorporates a mis­
interpretation of Indiana law, correction of which is 
not “independently worthy of plenary review” through 
this Court’s certiorari jurisdiction.

The second “ Question Presented”  in the petition is 
“ [wjhether, if the Eighth Amendment creates such a 
right [to bring a direct constitutional cause of action], 
survival of that action is governed by federal common 
law rather than the state statutes that apply to an­
alogous cases.”  The petitioners’ entire argument on this 
point rests upon a misconstruction of Indiana law which 
fails to address the grounds upon which the Court of 
Appeals’ decision rested.

We assume arguendo■ that it is appropriate to look to 
applicable state law for procedural details in a suit 
brought directly under the Constitution. But, contrary to 
petitioners’ assertion, “ [u]nder Indiana law, [not] all 
tort claims survive to some extent”  (Pet. Br. at 47). Un­
der the state’s survival statute, Ind. Code Ann. § 34-1-1-1, 
there is a significant exception to the general rule that 
“ [a] 11 causes of action shall survive”— an exception cov­
ering every case in which an individual dies as a result 
of the injuries giving rise to the cause of action. [See 
Pet. Br. at 4.) Had Joseph Jones commenced this law­
suit prior to his death, under Indiana’s survival statute 
it would clearly have abated when he died. This was



14

the holding of the court below, 581 F.2d at 673 n.8, and 
petitioners do not challenge this interpretation of Ind- 
ana law.

Petitioners do not seek to defend the harsh results 
which would inexorably follow application of Indiana’s 
survival statute to suits where the victim dies from 
injuries inflicted in violation of the Constitution. Instead, 
they characterize Indiana’s survival statute and its 
wrongful death statute (§34-1-1-2), taken together, as 
“ permit[ting] survival of all actions” (Pet. Br. at 48). 
But the state’s wrongful death act is totally inapplicable 
here.

Indiana’s wrongful death statute creates a “ cause of 
action to provide a means by which those who have sus­
tained a loss by reason of the death may be compensated.” 
Pickens v. Pickens, 255 Ind. 119, 126, 263 N.E.2d 151, 
155 (1970) ; see Note, Wrongful Death Actions in Indi­
ana, 34 Ind. L. J. 108, 109 (1958-59). As described in 
Bocek v. Inter-Ins. Exch. of Chicago Motor Club, 60 Ind. 
Dec. 30, 369 N.E.2d 1093, 1096 (Ct. App. 1977) :

This statutory creation of the right to sue in cases 
involving a wrongful death is intended to provide for 
the financial loss suffered by the widow, children or 
next of kin because of the death of the person in­
volved. New York Central R.R. Co. v. Clark, Extr. 
(1964), 136 Ind. App. 57, 197 N.E.2d 646. It was 
specifically enacted to overcome the result occasioned 
by adherence to the old English case of Baker v. 
Bolton (1808), 1 Camp. 493, 170 Eng. Rep. 1033, in 
which the death of a human being was not considered 
a compensable injury. See, Pickens v. Pickens 
(1970), 255 Ind. 119, 263 N.E.2d 151. The statute 
therefore is not a remedy for the victim.



15

This is not the cause of action described in respondent’s 
complaint.12 13 * The injury for which the plaintiff in this 
case seeks redress, as her son’s personal representative, 
is the deprivation of Joseph Jones’ constitutional rights, 
whereas the Indiana wrongful death act provides a means 
of redress for pecuniary losses suffered by survivors as a 
result of a decedent’s death. Those are demonstrably dif­
ferent injuries. Sea-Land Services v. Gaudet, 414 U.S. 
573, 575 n.2 (1974).

In Jones v. Hildebrant, supra, this Court emphasized 
the importance of identifying the cause of action in de­
termining the source of procedural law in a suit for 
damages based on a claimed violation of the Constitu­
tion. The writ of certiorari was dismissed in that case 
because it became clear at oral argument that the theory 
of the plaintiff’s action (deprivation of a mother’s con­
stitutional right to raise her child) was different from 
the cause of action which had been advanced in the Color­
ado courts, or which would have been covered by Color­
ado’s wrongful death act.18 The Court observed:

12 As explained in respondent’s Answer to Motion to Dismiss filed 
in the district court on November 30, 1976 (R. 36) :

Defendant Commission mistakes the plain meaning of Plain­
tiff’s Complaint in suggesting that it is governed or at all 
affected by the Indiana Wrongful Death Act. Plaintiff does not 
“ allege a wrongful death action occurring in the State of In­
diana,” as stated in the Commission’s Memorandum. Rather, 
as administratrix of her deceased son’s estate, Plaintiff claims 
recovery for the willful violation of his rights under the Fifth 
and Eighth Amendments to the United States Constitution. 
This is not a case of a dependent survivor making a claim for 
pecuniary loss of support, but of the Estate of one who was 
deprived of fundamental human rights suing for justice in the 
form of money damages. It is in no way tied to the Indiana 
law of wrongful death.

13 “ The majority opinion in the Supreme Court of Colorado pro­
ceeds on the assumption that if the Colorado wrongful-death
statute applied to petitioner’s claim, her recovery would be limited



16

The question of whether a limitation on recovery of 
damages imposed by a state wrongful death statute 
may be applied where death is said to have resulted 
from a violation of 42 U.S.C. § 1983 would appear 
to make sense only where the § 1983 damages claim 
is based upon the same injuries.

Jones v. Hildebrant, supra, 432 U.S. at 187.14
In this case, the district court treated the plaintiff’s 

constitutionally based claim as indistinguishable from 
the Indiana wrongful death action based upon its be­

to $45,000. It held that this limitation did apply even to the one 
count of petitioner’s complaint based on 42 U.S.C. § 1983.

A necessary assumption for this position would seem to be that 
petitioner was suing to recover damages for injuries under § 1983 
which were the same injuries as are covered by the state wrongful- 
death action. The question presented in the petition for certiorari 
is at the very least susceptible of that interpretation. But at oral 
argument, we were advised by counsel for petitioner that her sole 
claim of constitutional deprivation was not one of pecuniary loss 
resulting from her son’s wrongful death, such as would be cov­
ered by the wrongful-death statute, but one based on her personal 
liberty. Her claim was described at oral argument as a constitu­
tional right to raise her child without interference from the State; 
it has nothing to do with an action for ‘wrongful death’ as de­
fined by the state law. Tr. of Oral Arg. 4-5; see also id., at 8-13.

An action for wrongful death, under Colorado law, is an action 
which may be brought by certain named survivors of a decedent 
who sustain a direct pecuniary loss upon the death of the de­
cedent. It is ‘classified as a property tort action and cannot be 
classified as a tort action “ for injuries done to the person,” ’ Fish 
V. Liley, 120 Colo. 156, 163, 208 P.2d 930 (1949). Petitioner, how­
ever, articulates here a quite different constitutional claim, which 
does not fit into the Colorado wrongful-death mold.” Jones V. 
Hildebrant, supra, 432 U.S. at 185-86 [footnote omitted] (emphasis 
in original).

14 Petitioners seem to recognize this principle when, in describing 
the questions reserved by this Court in Robertson v. Wegmann, 
supra, they say: “ First, the Court noted that a different result 
might obtain if the pertinent state survival law was generally 
inhospitable to constitutional tort claims” (Pet. Br. at 47) (em­
phasis added).



17
lief that “ such statutes are the sole mechanism by which 
the personal representative of a decedent’s estate may 
maintain an action for damages arising from the de­
cedent’s death.”  (Pet. at 26a.)15 But this approach was 
rejected by the Court of Appeals, which stated:

It is important, however, to characterize plaintiff’s 
complaint properly. The district court erred in its 
characterization. The plaintiff is suing neither for 
deprivation of another’s constitutional rights nor on 
an independent statutorily created cause of action 
such as an action for wrongful death. Rather, she 
is asserting her son’s cause of action as the admini­
stratrix of his estate.

581 F.2d at 672 n.4. The Court of Appeals went on to 
hold that federal common law could furnish the “mech­
anism by which the personal representative of a decedent’s 
estate may maintain an action for damages” for injuries 
causing the decedent’s death, a proposition with which 
even the petitioners are willing to agree (so long as the 
circumstances are, in their view, “ extraordinary” ) (see 
Pet. Br. at 41). The petitioners did not, however, seek 
review in this Court of the Seventh Circuit’s determina­
tion that the Indiana “wrongful death” act was inap­
plicable to this suit. Since that ruling completely re­
moves the predicate for the petitioners’ “ survival” argu­
ment, the issue they seek to have this Court decide is 
simply not in the case.16

15 Petitioners do. not defend the district court’s resolution of this 
issue on its own. terms but make a different argument: that what 
they characterize as “ Indiana survival law’’ (the survival and 
wrongful death statutes, taken together) is generally hospitable 
to claims of constitutional violation. But their Brief totally fails 
to meet the critical ruling of the court below on the construction 
of Indiana law. See text infra.

16 This is not, therefore, a case like Robertson v. Wegmann, 
where an applicable state survival statute existed and was available 
for adoption in the federal suit, although it would cause some 
individual actions to abate. The Indiana wrongful death act does 
not apply at all to the cause of action asserted by the plaintiff.



18

Because we believe that the first Question Presented 
is an issue not properly preserved below, and that the 
second is based upon a misunderstanding of Indiana law 
and how it relates to this case (implicating an unchal­
lenged ruling of the Court of Appeals), we urge the Court 
to dismiss the writ of certiorari as improvidently granted. 
Wolf v. Weinstein, 372 U.S. 633, 636 (1963). The im­
portant issues seemingly raised by the case, and contained 
in the petition for certiorari, are not presented on this 
record. Iowa Beef Packers, Inc. v. Thompson, 405 U.S. 
228 (1972) ; McClanahan v. Morauer & Hartzell, 404 U.S. 
16 (1971) ; Bostic v. United States, 402 U.S. 547 (1971) ; 
Jones V. State Bd. of Educ., 397 U.S. 31 (1970) ; Pal- 
mieri v. Florida, 393 U.S. 218 (1968) ; Williams v. 
Zuckert, 371 U.S. 531 (1963) ; Needelman v. United 
States, 362 U.S. 660 (1960) ; McCarthy v. Bruner, 323 
U.S. 673 (1944) ; Tyrrell v. District of Columbia, 243 
U.S. 1 (1917).

II

FED ER AL COMMON L A W  W A S PROPERLY AP­
PLIED B Y  THE COURT BELOW  IN  TH IS ACTION  
TO REDRESS THE DEPRIVATION  OF JOSEPH  
JONES’ CO NSTITUTIONAL RIGHTS.

Introduction

We have set forth above the reasons why we believe 
the Court should not reach the merits in this case. 
Should the Court conclude otherwise, then the judgment 
below must be affirmed.

With respect to the Bivens issue,17 we fully support the 
result reached by the Seventh Circuit. The government’s 
Federal Tort Claims Act assertion is not substantiated 
by either the statute’s legislative history or logical analy­
sis; but we leave development of these points to the

17 Bivens V. Six Unknown Named Agents, 403 U.S. 388 (1971).



19

parties and other amici,18 The survivorship inquiry is of 
considerable concern to the Lawyers’ Committee (see 
statement of Interest, supra), and we address it at 
greater length in the balance of this Brief.

We urge more than mere affirmance of the judgment 
below. This Court should relieve federal trial judges from 
the burden of canvassing and analyzing state survival 
statutes as a preliminary matter whenever they entertain 
litigation to vindicate the constitutional rights of one 
whose death was caused by the violation of those rights. 
At least in such cases—if not in all suits to redress in­
fringement of constitutional guarantees—the question of 
survival of the cause of action should be governed by 
uniform standards as a matter of federal common law. 
Nothing in 42 U.S.C. § 1988 or the Rules of Decision Act 
precludes this Court from determining and announcing 
that this procedural issue is inappropriate for resolution 
according to the congeries of state law provisions which 
touch upon it.

18 The government’s argument addresses the Eighth Amendment 
question. However, the Complaint in this case, fairly read, also 
includes a claim based upon racial discrimination violative of the 
Fifth Amendment. See note 1 supra. “ [T]his Court has already 
settled that a cause of action may be implied directly under the 
Equal Protection Component of the Due Process Clause of the 
Fifth Amendment in favor of those who seek to enforce this con­
stitutional right.” Davis V. Passm an,------ U.S. ---------, ------ , 60
L. Ed. 2d 846, 861 (1979) (footnote omitted), citing Bolling v. 
Sharpe, 347 U.S. 497 (1954). Whatever may be the reach of the 
Tort Claims Act to a failure to provide medical treatment, we have 
been able to find no reported case in which the Act has been 
interpreted to provide a remedy for racial discrimination. Cf. 28 
U.S.C. § 2680(h).



20

A. At least where death is alleged to have resulted from 
unconstitutional actions, federal common law should 
govern the question of survival of the right of action 
to be brought by a decedent’s estate or personal 
representative.

We contend in Argument II.B., below, that the judg­
ment of the Court of Appeals in this case can be sustained 
because of the patent inadequacy of the survival law of 
the particular forum state involved. But we believe the 
district court’s confusion about which Indiana law was 
applicable to the survivorship issue provides a good il­
lustration of the errors which could be avoided, and the 
judicial time and energy which could be saved if this 
Court were to announce that survival questions in consti­
tutional cases should be governed by federal common law. 
At the very least, the Court should adopt this approach 
in cases in which the constitutional violation is alleged 
to have caused death.19

We are in full agreement with the petitioners “ that 
the issue of what law governs the survival of constitu­
tional damage actions is a question of federal law.” We 
also agree that “ Congress often does not supply all of the 
procedural details of a federal remedial scheme,” and 
that simply because the origins of the respondent’s cause 
of action are federal, state law is not rendered neces­
sarily irrelevant. Pet. Br. at 42.20 What we cannot ae-

19 In our amicus brief in Jones v. Hildebrant, supra, we suggested 
that the Court create a uniform federal common law of survival 
and wrongful death under § 1983 in order to avoid the difficulties 
inherent in borrowing state statutes, and in order to vindicate the 
purposes of the Civil Rights Act of 1871. Brief for the Lawyers’ 
Committee, et al. as Amici Curiae at 44-49. That course seemed 
to us to be appropriate in a case which, until oral argument, ap­
peared to resemble closely a “wrongful death” action. See Jones V. 
Hildebrant, supra, 432 U.S. at 185-86; but see Brief for the Lawyers’ 
Committee, et al. as Amici Curiae at 20-31.

20 Our only disagreement with the Court of Appeals in this case 
concerns the basis for the examination of state law. In Robertson



21

V. Wegmann, supra, the Court interpreted the provisions of 42 
U.S.C. § 1988 in the context of a suit under § 1983 alleging a 
violation of constitutional rights. The Court held that, when federal 
law is deficient, § 1988 instructs a trial court to utilize “ the com­
mon law, as modified and changed by the Constitution and statutes 
of the [forum] State,” as long as those are “not inconsistent with 
the Constitution and laws of the United States.” The Court of 
Appeals in this case acknowledged that, where a suit is predicated 
not on § 1983 but on the Constitution itself, § 1988 “ has no statu­
tory effect.”  581 F.2d at 673. Nevertheless, the Court of Appeals 
decided to utilize § 1988 because, in its view, “ actions brought 
under the civil rights acts and those of the Bivens-type cases are 
conceptually identical and further the same policies . . . .” Id. at 
669. The fact of the matter, however, is that by its terms this 
statute has no application beyond prescribing a procedure to be 
followed in causes of action created by the Civil Rights Acts. In 
Robertson v. Wegmann, perhaps the key difference between the 
majority and dissenting opinions was, as stated by Mr. Justice 
Blackmun, “ the Court’s apparent conclusion that, absent . . .  an 
extreme inconsistency, § 1988 restricts courts to state law on 
matters of procedure and remedy.” 436 U.S. at 596 (dissenting 
opinion).

The fact that § 1988 does not apply to a Bivens-type cause of 
action does not mean that state law has no role to play. The appro­
priate principles are set forth in the Rules of Decision Act, 28 
U.S.C. § 1652, which provides:

. . . the laws of the several states, except where the Consti­
tution, treaties, or statutes of the United States shall other­
wise require or provide, shall be regarded as rules of decision 
in trials at common law in the courts of the United States 
in cases where they apply.

This Court has never regarded the Rules of Decision Act as re­
quiring the application of state laws to every matter not covered 
by a federal statute or rule. See generally, Brief for the Lawyers’ 
Committee for Civil Rights as Amicus Curiae, Robertson V. Weg­
mann, supra, at 17-29. To the contrary, this Court has frequently 
determined that the creation of interstitial common law is neces­
sary to carry out federal substantive law and policy. E.g., Illinois 
v. City of Milwaukee, 406 U.S. 91 (1972); Bivens V. Six Unknown 
Named Agents, 403 U.S. 388 (1971); J.I. Case Co. V. Borak, 377
U. S. 426 (1964) ; Local 17b- v. Lucas Flour Co., 369 U.S. 95 (1962); 
Farmers Educ. & Coop. Union v. WDAY, 360 U.S. 525 (1959); Mc­
Allister v. Magnolia Petroleum Co., 357 U.S. 221 (1958); Textile 
Workers Union V. Lincoln Mills, 353 U.S. 448 (1957); National 
Metropolitan Bank v. United States, 323 U.S. 454 (1945); Tunstall
V. Brotherhood of Locomotive Firemen & Enginemen, 323 U.S. 
210 (1944); Clearfield Trust Co. V. United States, 318 U.S. 363



22

cept is the government’s bald statement, unsupported by 
any disclosed authority, that “ federal law adopts the 
relevant state standard unless application of local law 
would utterly defeat the federal interests involved.” Id. 
(emphasis added).

While this Court has . . occasionally selected state 
law” as the federal rule, Clearfield Trust Co. v. United 
States, 318 U.S. 363, 367 (1943), it has also made de­
terminations (based upon underlying federal policy) that 
uniform federal common law must govern the determina­
tion of specific issues or cases. E.g., id.; United States 
V. Little Lake Misere Land Co., 412 U.S. 580 (1973). 
See also Note, Federal Common Law, 82 H ar v . L. R ev . 
1512 (1969). Even with respect to issues traditionally 
governed by state law, in a federal cause of action, a 
court still “must inquire whether the need exists for

(1943) ; Sola Elec. Co. V. Jefferson Elec. Co., 317 U.S. 173 (1942) ; 
Jackson County V. United States, 308 U.S. 343 (1939); see generally 
Monaghan, The Supreme Court, 197U Term—Foreword: Constitu­
tional Common Law, 89 Hakv. L. Rev. 1 (1975). A clear and con­
cise exposition of the relevant principles appears in United States 
v. Little Lake Misere Land Co., 412 U.S. 580, 590-93 (1973):

. . . The suggestion is that this Court’s decision in Erie R. Co. 
v. Tompkins, 304 U.S. 64 (1938), compels application of state 
law here because the Rules of Decisions Act, 28 U.S.C. § 1652, 
requires application of state law in the absence of an explicit 
congressional command to the contrary. We disagree.

. . . Since Erie, and as a corollary of that decision, we have 
consistently acted on the assumption that dealings which may 
be “ordinary” or “ local” as between private citizens raise 
serious questions of national sovereignty when, they arise in 
the context of a specific constitutional or statutory provision; 
particularly is this so when transactions undertaken by the 
Federal Government are involved, as in this case. In such 
cases, the Constitution or Acts of Congress “ require” other­
wise than that state law govern of its own force.
. . . the inevitable incompleteness presented by all legislation 
means that interstitial federal lawmaking is a basic responsi­
bility of the federal courts. . . .



23

federal law to further federal policies or foster uni­
formity. If either circumstance is present, it must weigh 
the benefits promised by local solution against the need 
for a national rule.”  Id. at 1531. Such an analysis con­
vinces amicus that the issue of survival of the cause of 
action— at least where the violation of the federal Con­
stitution or law is alleged to have resulted in death21— 
should not be controlled by state law. Cf. Basista v. Weir, 
340 F.2d 74, 86-87 (3d Cir. 1965).

This Court emphasized the need for an independent, 
uniform federal law of remedy for constitutional viola­
tions in its decision in Bivens, supra. In that case, the 
Court rejected an argument that the petitioner’s Fourth 
Amendment rights were essentially rights of privacy and 
therefore creations of state and not federal law.22 In his

21 We believe the same principle should be applicable to all ques­
tions of survival in actions to redress federal constitutional or 
legal violations, see Robertson v. Wegmann, supra, 436 U.S. at 
599-601 (dissenting opinion), but the Court need not decide the 
broader issue in the instant case.

22 According to this argument, Bivens’ cause of action sounded 
in tort and would have to be brought in state court. The only sig­
nificance of the Fourth Amendment would be “ to limit the extent 
to which the agents could defend the state law tort suit by assert­
ing that their actions were a valid exercise of federal power . . . 
403 U.S. at 390-91. The Court rejected this scenario because it 
could not accept the notion that, when a federal agent exercises his 
authority in an unconstitutional manner, he is no different from 
any private citizen. The Court explained:

. . . the Fourth Amendment operates as a limitation upon 
the exercise of federal power regardless of whether the State 
in whose jurisdiction that power is exercised would prohibit 
or penalize the identical act if engaged in by a private citizen. 
It guarantees to citizens of the United States the absolute 
right to be free from unreasonable searches and seizures 
carried out by virtue of federal authority. And “where fed­
erally protected rights have been invaded, it has been the rule 
from the beginning that courts will be alert to adjust their 
remedies so as to grant the necessary relief.” Bell v. Hood, 327 
U.S., at 684 (footnote omitted) ; see Bemis Bros. Bag Co. V.



24

opinion concurring in the judgment, Justice Harlan 
pointed out that

. . . the limitations on state remedies for violation of 
common-law rights by private citizens argue in favor 
of a federal damages remedy. The injuries inflicted 
by officials acting under color of law, while no less 
compensable in damages than those inflicted by 
private parties, are substantially different in kind, 
as the Court’s opinion today discusses in detail. See 
Monroe v. Pape, 365 U.S. 167, 195 (1961) Har­
lan, J., concurring). It seems to me entirely proper 
that these injuries be compensable according to uni­
form rules of federal law, especially in light of the 
very large element of federal law which must in any 
event control the scope of official defenses to liability. 
See Wheeldin V. Wheeler, 373 U.S. 647, 652 (1963) ; 
Monroe v. Pape, supra, at 194-195 (Harlan, J., 
concurring) ; Howard v. Lyons, 360 U.S. 593 (1959). 
Certainly, there is very little to be gained from the 
standpoint of federalism by preserving different rules 
of liability for federal officers dependent on the State 
where the injury occurs. Cf. United States v. Stand­
ard Oil Co., 332 U.S. 301, 305-311 (1947).

403 U.S. at 409 (emphasis added) .2S
Petitioners reject any need for uniformity, citing de­

cisions which applied state statutes of limitations to fed­
eral causes of action. But unlike statutes of limitations, 
whose purpose is to provide assurance that one will not 23

United, States, 289 U.S. 28, 36 (1933) (Cardoza, J.) ; The 
Western Maid, 257 U.S. 419, 433 (1922) (Holmes, J.).

403 U.S. at 392. The Court further observed that “ the interests 
protected by state laws regulating- trespass and the invasion of 
privacy, and those protected by the Fourth Amendment’s guarantee 
against unreasonable searches and seizures, may be inconsistent or 
even hostile.” 403 U.S. at 394.

23 The Court of Appeals concluded that “ [t]he liability of federal 
agents for violation of constitutional rights should not depend upon 
where the violation occurred.”  581 F.2d at 675.



25

be held to answer for conduct long past, survival statutes 
serve no interest in repose; abatement of the litigation 
because of the death of the victim arbitrarily cuts off all 
opportunity to redress the injury.24 Whatever may be 
the justification for allowing this result in litigation to 
enforce state-created tort interests, there is no adequate 
reason to permit the vindication of constitutional rights, 
and the deterrence of unconstitutional conduct, to be 
impeded because of the death of one who claimed denial 
of his rights. Such a result completely frustrates the 
purposes of the federal Civil Rights Acts.

Petitioners rely principally upon International Union 
v. Hoosier Cardinal Corp., 383 U.S. 696 (1966), holding 
that the timeliness of a suit brought to enforce a collec­
tive bargaining agreement under § 301 of the Labor- 
management Relations Act would be governed by a state 
statute of limitations. In that case, the Court acknowl­
edged that the subject matter of § 301 is “ peculiarly one 
that calls for uniform law” but found that the specific 
problem before it— the timeliness of bringing suit—was 
not of that genre:

The need for uniformity, then, is greatest where its 
absence would threaten the smooth functioning of 
those consensual processes that federal labor law 
is chiefly designed to promote—the formation of the 
collective agreement and the private settlement of 
disputes under it. For the most paid, statutes of limi­
tations come into play only when these processes have 
already broken down. Lack of uniformity in this 
area is therefore unlikely to frustrate in any im­
portant way the achievement of any significant goal 
of labor policy.

383 U.S. at 702. Petitioners assert that, like statutes of 
limitations, the law governing survival of constitutional

24 See Ingram V. Steven Robert Corp., 547 F.2d 1260, 1262 n.2 
(5th Cir. 1977).



26

damages actions does not become an issue until after 
the policy of deterring federal officials from unconstitu­
tional behavior has failed in its purpose.” Pet. Br. at 44. 
But there is no equivalent of the National Labor Relations 
Board which exerts day-to-day control over the actions of 
federal prison officials to prevent constitutional violations. 
Hence litigation plays a critical role in establishing a 
credible deterrent to such conduct. Cf. District of Co- 
lumbiav. Carter, 409 U.S. 418, 427 (1973).

The Hoosier Court was speaking, in the passage set out 
above, only to the relative unimportance of uniformity in 
the context of matters outside the framework of collec­
tive bargaining; i.e., the formation of the contract and 
private settlement of disputes.28 Its reasoning hardly 
applies to the survival of constitutionally based damages 
actions, the objectives of which are not “ the smooth 
functioning of . . . consensual processes” but rather the 
compensation of victims of official brutality, and the de­
terrence of those clothed with the power of the federal 
government from violations of constitutionally protected 
rights.

Petitioners’ attempt to create an analogy with cases 
applying state statutes of limitations to federal causes 
of action fails because it tries to make too much of 
superficial similarities. Statutes of limitations cases form 
a distinct body of law, primarily because the impact of 
applying state limitations is ordinarily confined to the 
litigation and does not affect the federal interests in 
compensation for, and deterrence of, unconstitutional con­
duct. Moreover, in most cases, preservation of a cause 25

25 Issues concerning the formation of the bargaining agreement 
and enforcement of arbitration clauses.—which involve the life-­
blood of § 301—are governed by federal law. Local 17U v. Lucas 
Flour Co., 369 U.S. 95 (1962) ; Textile Workers Union V. Lincoln 
Mills, 353 U.S. 448 (1957); cf. Charles Dowd Box Co. v. Courtney, 
368 U.S. 502 (1962).



27

of action by timely filing is wholly in control of the 
wronged party (or the legal representative of the 
wronged party).26 Application of state survival law, as 
exemplified by the instant case, may destroy a cause of 
action for reasons totally beyond the victim’s control.

Petitioners also argue that, since laws of survivorship 
involve “ traditionally local matters” such as inheritance 
laws and domestic relations, the case for a uniform law 
of survival is even weaker than the case of statutes of 
limitations. But this was precisely the thesis rejected in 
United States v. Little Lake Misere Land Co., swpra, 
where the Court held that the impact on a federal regula­
tory program required the creation of interstitial federal 
common law even though property law was traditionally 
found in the statutes and decisions of the states. 412 
U.S. at 584-85.

It is also insignificant that wrongful death and sur­
vival laws, like statutes of limitations, are “ inherently 
statutory in nature.”  Petitioners argue that “ in the 
absence of common law analogues, the courts are less able 
to fashion such rules.” Pet. Br. at 45. But the Court has 
done precisely this in Moragne v. States Marine Lines, 
Inc., 398 U.S. 375 (1970), where it abandoned reliance 
on state wrongful death statutes in admiralty law. A 
full and complete answer to petitioners’ contention is 
found in the following statement by the unanimous Court 
in Moragne:

These numerous and broadly applicable statutes,
taken as a whole, make it clear that there is no

26 Thus, for example, the only reason the choice-of-law issue 
arose in International Union v. Hoosier Cardinal Corp., supra, is 
that the plaintiffs tried for years to litigate their claim in the 
Indiana state courts. “ Almost four years after the dismissal of 
that lawsuit by the Indiana trial court, and almost seven years 
after the employees had left the company, the union filed the 
present action in the United States District Court for the Southern 
District of Indiana.” 383 U.S. at 699.



28

present public policy against allowing recovery for 
wrongful death. The statutes evidence a wide rejec­
tion by the legislatures of whatever justifications 
may once have existed for a general refusal to allow 
such recovery. This legislative establishment of 
policy carries significance beyond the particular scope 
of each of the statutes involved. The policy thus es­
tablished has become itself a part of our law, to 
be given its appropriate weight not only in matters 
of statutory construction but also in those of de­
cisional law.

398 U.S. at 390.
It is true that this Court’s opinion in Robertson V. 

Wegmann, supra, interpreting § 1988, and the approach 
to the Rules of Decision Act outlined in United States v. 
Little Lake Misere Land Co., supra, permit the deter­
mination whether state law “ supplements and fulfills fed­
eral policy” 27 to be made on a case-by-case basis. It is 
also true that this Court in Robertson rejected an argu­
ment that the need for uniformity compelled rejection 
of state law in that case. The majority there was careful, 
however, to “ intimate no view . . . about whether abate­
ment based on state law could be allowed in a situation 
in which deprivation of federal rights caused death.” 436 
U.S. at 594.

We respectfully submit that the answer to that re­
served question is undoubtedly a negative one (see pp. 
32-35 in fra). Thus, there is no, point in requiring federal 
trial courts to look to state survival statutes only to super­
sede them with federal common law in the event that they 
would abate a suit where the unconstitutional action 
claimed the victim’s life.28 The Court should announce

27 International Union v. Hoosier Cardinal Corp., supra, 383 U.S. 
at 709 (White, J., dissenting).

28 This Court has created federal common law in a variety of 
circumstances to effectuate the purposes of the civil rights acts



29

a uniform rule of survival in such cases, just as in 
Moragne v. States Marine Lines, supra, 398 U.S. at 409, 
it overruled The Harrisburg, 119 U.S. 199 (1886) and 
created a uniform federal maritime wrongful death ac­
tion instead of merely overruling The Tungus v. Skov- 
gaard, 358 U.S. 588 (1959) to permit federal courts on 
a case-by-case basis to disregard state law limitations 
on maritime claims. See also, Sea-Land Services V. 
Gaudet, supra.

B. In the circumstances of this case, the Indiana law of 
survival is inconsistent with the purposes of the fed­
eral cause of action and was properly rejected by the 
court below in favor of federal common law.

1. Indiana’s wrongful death statute does not apply 
to this lawsuit.

We have argued above that the Court of Appeals cor­
rectly declined to approve the district court’s action re­
casting respondent’s Complaint as a “wrongful death”

without reference to state law. In Carey v. Piphus, 435 U.S. 247, 
257-59 (1978), the Court rejected the notion that denials of pro­
cedural due process were not compensable. The Court recognized 
the fact that in some cases, the interests protected by a particular 
constitutional right may not be protected by an analogous branch 
of the common law of torts (without any discussion of the specific 
law of the forum state). Adapting common law rules to provide 
fair recompense for constitutional violations is a delicate task, but 
as the Court said:

The purpose of § 1983 would be defeated if injuries caused 
by the deprivation of constitutional rights went uncompen­
sated simply because the common law does not recognize an 
analogous cause of action.

435 U.S. at 258. In fashioning federal common law to arrive at an 
appropriate damages remedy, the Court carefully analyzed the 
federal interests involved. Such an approach is surely warranted 
where the issue is not the form of compensation but whether the 
federal cause of action survives at all. See also, Imbler v. Pachtman, 
424 U.S. 409, 417-19 (1976) ; Pierson v. Ray, 386 U.S. 547, 554-55 
(1967).



30

suit. See pp. 16-17 supra. Petitioners did not seek review 
of that holding. Even if the question were properly here, 
petitioners’ arguments in support of the applicability of 
Indiana’s “wrongful death” statute are unpersuasive un­
der either § 1988 or the Rules of Decision Act.

Petitioners would have trial courts adopt any state 
survival or wrongful death statute involving a tort which 
happens to be on the books of the forum state. Their 
expansive reference to “ analogous” statutes, which pro­
vides the springboard for their argument that the limita­
tions on damages recoverable under Indiana’s wrongful 
death statute do not “utterly” defeat the underlying pur­
poses of constitutionally based damages actions, is ill- 
conceived and is not supported by this Court’s decisions 
interpreting § 1988 or the Rules of Decision Act.2'9

Robertson V. Wegmann, supra, for example, suggests 
the contrary. The Court there found it unnecessary to 
resolve whether the reference to “ the common law” in 
§ 1988 might mean federal common law, as opposed to 
decisional law of the forum, state, explaining:

It makes no difference for our purposes which inter­
pretation is the correct one, because Louisiana has 
a survivorship statute that, under the terms of 
§ 1988, plainly governs this case. 29

29 With respect to one issue: statutes of limitations (an area in 
which the federal interest has traditionally been viewed as very 
attenuated, see pp. 24-27 supra), courts do seek to determine what 
state-created limitations period would be applied to an “anal­
ogous” cause of action under state law. Beard v. Robinson, 563 F.2d 
331, 334-35 (7th Cir. 1977), cert, denied, 438 U.S. 907 (1978), and 
cases cited. There is often considerable difficulty in deciding which 
provision of state law covers “analogous” actions, see id. at 335-38; 
Runyon V. McCrary, 427 U.S. 160, 179-82 (1976). When no clearly 
applicable provision can be identified, “ catch-all” limitations periods 
are adopted. Beard V. Robinson, supra, 563 F.2d at 338; Crosswhite 
V. Brown, 424 F.2d 495 (10th Cir. 1970) ; cf. Madison v. Wood, 410 
F.2d 564 (6th Cir. 1969). No similar course is available in the 
survivorship area.



31

436 U.S. at 589 n.5. The necessary implication is that, 
absent a survivorship statute which plainly governs the 
case, even under § 1988 a federal common law of sur­
vival must be created if abatement of a cause of action 
would be inconsistent with federal policy concerns.30 
Similarly, in Jones V. Hildebrant, supra, this Court said 
that application of a state statute “would appear to make 
sense only where the § 1983 damages claim is based upon 
the same injuries” which would give rise to the state 
cause of action. 432 U.S. at 187.

In Rules of Decision Act cases where there is no clearly 
controlling state statute which can be applied, the de­
cision whether to “borrow” some analogous provision of 
state law also is not automatic, but depends upon con­
sistency with federal purposes. See United States V. 
Little Lake Misere Land Co., supra, 412 U.S. at 604;31 
cf. Klimas v. International Tel. & Tel. Corp., 297 F. 
Supp. 937 (D.R.I. 1969) (district court in diversity ac­
tion not bound by state Supreme Court holding which 
federal judge believes state court would overrule as soon 
as opportunity arises) (dictum).

There simply is no justification for applying Indiana’s 
wrongful death legislation to this case.

30 This is precisely the methodology followed by the Court of 
Appeals in this case. There being no Indiana statute on point, the 
court turned to federal common law. See Theis, Shaw v. Garrison: 
Some Observations on i2  U.S.C. § 1988 and Federal Common Law, 
36 La. L. Rev. 681, 684-85 (1976). The petitioners have neither 
argued that § 1988 refers to state decisional law nor suggested 
that there is any Indiana decisional law that would support their 
position.

31 “ Once it is clear that Act 315 has no application here, we need 
not choose between ‘borrowing’ some residual state rule of interpre­
tation or formulating an independent federal ‘common law’ rule; 
neither rule is the law of Louisiana yet either rule resolves this 
dispute in the government’s favor.”



32

2. Indiana’s survival statute is also inapplicable to 
this lawsuit.

The Court of Appeals viewed Indiana’s survival statute, 
Ind. Code Ann. § 34-1-1-1, as inapplicable to this suit, 
because it made no provision whatever for survival of a 
cause of action for injuries which proved fatal. See 
pp. 6, 13-14 supra. The petitioners have not contested this 
ruling, and we assume that it is the established law of 
this case. The choice-of-law question presented, there­
fore, is whether in the absence of any applicable state 
legislation, the Court of Appeals was correct in creating 
federal common law to permit survival of this constitu­
tionally based damage action.

3. Allowing this action to abate because the forum 
state’s law failed to provide for its survival would 
be flagrantly unjust and contrary to the goals of 
compensation and deterrence which are served by 
creation o f  the action.

Under Indiana law, no provision is made for the sur­
vival of a cause of action to recover damages for in­
juries from which an individual dies. Can this “ forum 
state law” be applied to a constitutional damages action? 
Petitioners state in their brief that “ convenience and 
jurisprudential limitations” favor adoption of state sur­
vival rules as the “ desirable approach,” a conclusion which 
they say is “ strongly supported, if not compelled by the 
Rules of Decision Act.” Pet. Br. at 45. The Court of 
Appeals made a contrary determination, based upon its 
understanding of the principles enunciated by this Court 
in Robertson V. Wegmann, supra, construing 42 U.S.C. 
§ 1988. Whichever analysis— § 1988 or the Rules of De­
cision Act— is utilized,32 the result reached by the Court

32 See note 20 supra,.



33

of Appeals 33 34 must be affirmed. Permitting a direct con­
stitutional action to abate when the victim of official 
brutality or gross neglect dies from his injuries defeats 
the purposes served by such an action. This requires the 
creation of a federal common law of survival.

In Robertson v. Wegmann, the Court found that the 
policies underlying § 1983 include both compensation of 
persons wronged by a deprivation of federally protected 
rights and “prevention of abuses of power by those acting 
under color of . . . law.” 436 U.S. at 591. These policies 
are equally central to a Bivens-type action, and it vir­
tually goes without saying that extinguishment with his 
death of any constitutional claims which a decedent may 
have had frustrates these interests. Even if the policy of 
compensating the wronged person would not be completely 
thwarted, because his estate could recover pecuniary losses 
in a state-created cause of action, the goal of curbing 
abuse of power by officials would be severely impeded.84

ss The Court of Appeals determined that Indiana survival law 
should not be applied here because it would result in ̂  complete 
abatement of Joseph Jones’ cause of action, a determination which 
we support in this section. On the assumption that Indiana’s 
“wrongful death” statute should have been adopted, a contention 
we have already shown to1 be inconsistent with this Court s prior 
rulings, we respond in the following section to the petitioners 
assertion that the statute’s damages limitation is acceptable as 
applied to this Bivens-type action.

34 In a footnote, petitioners represent that this Court ruled in 
Carey V. Piphus, supra, that compensation was the basic purpose- of 
constitutional damage actions, and that deterrence is “ inherent 
in the award of compensatory damages,” Pet. Br. at 50 n.48. The 
implication is that through recovery of such damages as are 
allowed in an Indiana wrongful death action, the deterrent pur­
poses of federal law can be- satisfied. But the opinion in Carey 
expressly states, although finding no basis for an award on the 
record before the Court: “ This is not to- say that exemplary or 
punitive damages might not be awarded in a proper case under 
§ 1983 with the specific purpose of deterring or punishing viola­
tions of constitutional rights.” 435 U.S. at 257 n .ll. The Court 
concluded by holding out the possibility that attorneys fees might



34

The crucial distinction between Robertson35 and this 
case is that, in the former, Louisiana law permitted the 
type of action maintained by Shaw’s executor to survive, 
generally. It abated only because Shaw was not outlived 
by any of the statutorily designated kin. Thus, the Court 
held that abatement of the cause of action in that in­
stance was truly due to circumstances unique to Shaw. 
But the Court stated that “ [a] different situation might 
well be presented . . .  if state law did not provide for 
survival of any tort actions . . .  or if it significantly re­
stricted the types of actions that survive.”  436 U.S. at 
594. That is precisely the situation here. Indiana law 
fails to provide for the survival of a cause of action for 
an entire class of victims of tortious—including uncon­
stitutional— conduct: those who die of their injuries.
By restricting survivorship rights in this manner, In­
diana’s statute is an “unreasonable” one. Robertson v. 
Wegmann, supra, 436 U.S. at 592.

There is no escaping the conclusion, which the Court 
of Appeals reached in this case, that it would subvert 
the policy of allowing complete vindication of constitu­

also be available to provide “ additional—and by no means incon­
sequential—assurance that agents of the State will not deliberately 
ignore due process rights.” Id.

35 In Robertson the question was whether Clay Shaw’s § 1983 
damage suit against New Orleans District Attorney Jim Garrison 
for the latter’s allegedly bad faith prosecution of Shaw for the 
Kennedy assassination should abate following Shaw’s death from 
unrelated causes. Under Louisiana’s survival statutes, the action 
would abate because Shaw left no widow, parent, or dependent 
kin. The Fifth Circuit ruled that Shaw’s executor could continue 
the suit because Louisiana law was “ inconsistent with the Consti­
tution and laws of the United States” under § 1988 insofar as it 
would cause the suit to abate. Reversing, this Court held that, 
where the decedent died from causes having no connection with 
the alleged constitutional violations, it did not defeat the compen­
satory and deterrent purposes of § 1983 to apply Louisiana’s 
survival statute even though in the particular circumstances of that 
case, doing so- would cause the action to abate.



35

tional rights to sanction a rule that would permit Jones 
to obtain redress for violations of his rights if he lived, 
but foreclose recovery by the fortuitous circumstance of 
his consequent death. Petitioners suggest that, “ except 
perhaps for the hypothetical case of a federal official 
who, in depriving a person of his constitutional rights, 
kills rather than maims because of a peculiar local sur­
vival statute, state laws of survivorship simply do not 
affect or regulate primary daily activity.”  (Pet. Br. at 
44.) But it is not farfetched to assume that the “pri­
mary daily activities” of administrators or officers of a 
federal prison in a state like Indiana will be affected by 
knowledge that they are not individually responsible in 
substantial damages for the death of prisoners resulting 
from their unconstitutional actions or omissions. See 
Robertson v. Wegmann, supra, 436 U.S. at 600 (Black- 
mun, J., dissenting) ; Jones v. Hildebrant, supra, 432 
U.S. at 190-91 (White, J., dissenting). It does not re­
quire a vivid imagination to envisage that, if the decision 
below is reversed, federal prison officials will feel little 
compulsion to correct the alleged horrible conditions at 
the Terre Haute prison hospital which caused Jones’ 
death. Deterrence depends upon individual responsibility, 
and upon the knowledge on the part of officials within the 
federal prison bureaucracy, the hospital accrediting 
agency, and the health care profession who are entrusted 
with prisoners’ lives, that they will be held accountable 
in money damages for their actionable conduct. See 
Estelle V. Gamble, supra.™ 36

36 This would be true even if, as the government claims, an action 
against the United States lies under the Federal Tort Claims Act. 
Damages paid by the U.S. Treasury, rather than by the individual, 
are a much less effective incentive for the responsible officials to 
take corrective action.



36

4. I f  the district court was correct in applying the 
Indiana “ wrongful death” statute, it nevertheless 
erred in adopting the limitation on recoverable 
damages o f that provision.

Should the Court conclude, contrary to the views ex­
pressed above, that the trial judge acted properly in 
viewing Mrs. Green’s complaint as the equivalent of a 
suit brought under Indiana’s “wrongful death” statute, 
Ind. Code Ann. § 34-1-1-2, we believe that the judgment 
below must still be sustained. The limitation on recover­
able damages which is contained in that law cannot be 
applied to a constitutional damage action consistently 
with the underlying purposes of the suit, just as the 
state’s survival statute cannot be applied so as to result 
in abatement.

In Jones v. Hildebrant, supra, the Colorado Supreme 
Court (two Justices dissenting) held that a federal cause 
of action under § 1983 merged with the state action for 
wrongful death. One consequence of this view was that 
Colorado’s limitation of damages for wrongful death to 
“net pecuniary loss”  was deemed to be appropriate in 
the case of a violation of the decedent’s federal constitu­
tional rights. This conclusion stemmed from the Colo­
rado court’s fundamentally erroneous view that a § 1983 
action was identical to a cause of action under the state’s 
wrongful death act.37 Whatever the reasonableness of a 
“ net pecuniary loss” rule in promoting adjustment of the 
burden of loss caused by negligence and other tortious 
conduct, such a limitation does not further the protection 
of federal constitutional interests.38

37 See Brief for the Lawyers’ Committee for Civil Rights et al. as 
Amici Curiae, Jones V. Hildebrant, supra, at 20-31.

38 In Sea-Land Services V. Gaudet, supra, this Court held that 
the “ net pecuniary loss” rule is an unacceptable measure of damages 
in Moragne-type wrongful-death cases. If such restrictions on the 
complete-justice principle are inappropriate in admiralty, a fortiori



87

In effect, the district court in this case “merged” the 
state wrongful death act into the Bivens action in ac­
cordance with its view that a constitutional action could 
not proceed without the state’s wrongful death mecha­
nism, and then applied the state law’s limitation on dam­
ages without evaluating the impact on federal interests.

Petitioners stress the fact that the wrongful death act 
permits a substantial recovery unless the decedent leaves 
no widow, dependent child, or dependent next of kin. But 
the issue is not, as the petitioners contend, whether 
Indiana law “ reduces the windfall relief available to non­
dependent, non-spousal relatives.” Pet. Br. at 49. Where 
deterrence of unlawful conduct is a paramount concern, 
as in this Bivens-type action, and that conduct causes the 
victim’s death, the ultimate disposition of a damage award 
is of no moment. The goal is to avoid future death re­
sulting from abuse of authority. Limiting the amount 
of recoverable damages impedes accomplishment of this 
goal (1) by making it uneconomical for anyone but 
spouses and dependent relatives to bring suit, and (2) 
by eliminating any expectation on the part of public 
officials that they will have to respond in a meaningful 
way for their unlawful conduct.39

The connection between the unconstitutional conduct 
and the victim’s death serves to distinguish this case 
from Robertson, where there was no causal relationship 
between Shaw’s death and the defendant’s conduct. Death

they are unacceptable here. See Page, State Law and the Damages 
Remedy Under the Civil Rights Act: Some Problems in Federalism, 
43 Den. L.J. 480, 489 (1966).

39 The petitioners may be correct that the untrained nurse did 
not inject Jones with the wrong drug because of his awareness of 
the intricacies of Indiana survivorship law. But the knowledge that 
a person in such a position will be held responsible in damages 
for his conduct will most assuredly serve the policy of deterrence 
which underlies civil rights actions and lawsuits based on the 
violation of federal constitutional rights.



38

which results from unconstitutional conduct is a part of 
the constitutional violation. The federal interest in as­
suring adequate redress for what is essentially “ capital 
punishment” in violation of the Constitution is greater 
than the interest that a particular action survive the 
death of the victim from natural causes.

In the Robertson context, it was perhaps explicable to 
say that “ surely few persons are not survived by one 
of these close relatives. . . .” 436 U.S. at 591-92. But 
where the object is to prevent future “ executions” with­
out due process of law by those wielding the power of 
life and death, this is not an acceptable supposition. 
Ultimately, at least in Indiana, the rule urged by the 
government cheapens the lives of the many federal pris­
oners who, like Jones, are young, black, unmarried, and 
childless.40

40 As pointed out by the district judge in his order dismissing 
the respondent’s Complaint (Pet. App. at 27a), her Petition for 
Letters of Administration filed (before this suit was instituted) 
in her son’s estate in the Probate Division of the Circuit Court 
of Cook County discloses that his estate consists of a potential state 
cause of action worth $500. It does not appear who filled this amount 
in, but it would probably be an accurate assessment of the pecuniary 
value of an action under Indiana’s wrongful death act.



39

CONCLUSION

For the reasons set forth above, the judgment below 
should be affirmed or, in the alternative, the writ of 
certiorari should be dismissed as improvidently granted.

Respectfully submitted,

John B. Jones, Jr .
N orman Redlich 

Co-Chairmen 
W illiam  L. R obinson 

Director
Norman J. Chachkin  
R ichard S. K ohn 

Staff Attorneys
Lawyers’ Committee for Civil 

Rights Under Law 
733 15th Street, N.W. 
Washington, D.C. 20005

Attorneys for Amicus Curiae

November, 1979