and therefore inconsistent with, the purposes of section 1983.
This holding comports with the conclusions in comparable cases decided by federal appellate and district courts. Berry v. City of Muskogee, 900 F.2d 1489 (10th Cir. 1990) involved an action where the death was caused by the section 1983 violation. The Tenth Circuit discussed the need for compensation for victims of section 1983 violations and found that a state survival statute which cut off nearly all damages available to the decedent failed to satisfy the purposes of the federal law. Id. at 1504-06. In Bell v. City of Milwaukee, 746 F.2d 1205, 1234-42, 1250-53 (7th Cir. 1984), the Seventh Circuit adopted the state survival statute but found the monetary limitations in the state's wrongful death statute at odds with the purposes of section 1983. The court upheld an award of damages above the state limit in order to vindicate the deprivation of constitutional rights. Similarly, in Larson v. Wind, 542 F. Supp. 25, 27 (N.D. Ill. 1982), a district court found that a state survivorship statute which precluded recovery for punitive damages was inconsistent with section 1983. Larson also involved a plaintiff who died from causes unrelated to the conduct complained of in the action. The court went on to say that "section 1983's purpose of deterrence would be subverted by slavish application of a state survivorship rule denying punitive damages." Id.
This court's conclusion is also consistent with other decisions in areas where the federal courts have had to develop theories of damages to fill the interstices of federal statutes or federal common law. See generally In re Inflight Explosion on Trans World Airlines, Inc. Aircraft Approaching Athens, Greece on April 2, 1986, 778 F. Supp. 625, 627-37 (E.D.N.Y. 1991), judgment rev'd on other grounds, Ospina v. Trans World Airlines, Inc., 975 F.2d 35 (2d Cir. 1992), cert. denied, Estate of Ospina by Coughlin v. Trans World Airlines, Inc., 507 U.S. 1051, 123 L. Ed. 2d 650, 113 S. Ct. 1944 (1993).
Finally, having found that section 377.34 is inconsistent with the purposes of section 1983 of the federal civil rights statutes, the court must determine what law provides the rule for survival claims and the damages that survivors may recover. Some courts, finding inconsistencies with state law, have looked explicitly to federal common law. See e.g., Berry v. City of Muskogee, 900 F.2d at 1506-07. Other courts have not articulated the rule they are adopting, instead looking to state survivorship law, finding it inconsistent and then permitting the damages excluded by that law. See e.g., Bass by Lewis v. Wallenstein, 769 F.2d 1173, 1190 (7th Cir. 1985) (finding state's exclusion of punitive damages inconsistent with federal law and saying merely that it "must give way to federal common law rules that permit recovery."); O'Connor v. Several Unknown Correctional Officers, 523 F. Supp. 1345, 1349 (E.D. Va. 1981) (state law that provides for neither survival of section 1983 action nor survival of punitive damages under wrongful death statute held inconsistent; survival, compensatory and punitive damages permitted); Larson, 542 F. Supp. at 27 (bar to punitive damages under state law); Thomas v. Frederick, 766 F. Supp. 540, 560-61 (W.D. La 1991) (same).
This court finds that to give structure and guiding principles to the framing of a rule the court should look to the state statute in the first instance, apply it where it is not inconsistent with the federal law and decline to apply those provisions that are incompatible. In the case of the California statute this can be done without doing violation to the purposes of section 1983 because the statute is not wholly inconsistent. Section 377.20 permits survival of the action. Section 377.34 permits economic damages and punitive damages and to that extent it is not inconsistent. However, the exclusion of pain and suffering wipes out the most significant measure of section 1983 damages and to that extent is inconsistent. By merely forbidding this limitation the court can achieve the consistency required by the Supreme Court and accomplished by the courts cited above.
In accordance with the above discussion, the court GRANTS plaintiff's motion for partial summary judgment and holds that the California survivorship statutes as provided in sections 377.20 and 377.34 govern this action except insofar as they limit the survivors' recovery of damages for pain and-suffering. Substituted plaintiff Franklin Williams may recover pain and suffering damages sustained by the decedent Piedad Williams upon a proper showing.
IT IS SO ORDERED.
Dated: JAN 29 1996
MARILYN HALL PATEL
United States District Judge