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January 29, 1996

PIEDAD WILLIAMS, et al., Plaintiffs,
CITY OF OAKLAND, et al., Defendants.

The opinion of the court was delivered by: PATEL

 Piedad Williams filed this action in September 1993 pursuant to 42 U.S.C. § 1983 alleging that Oakland police officers unlawfully seized and searched her and in the course of doing so used excessive force. Ms. Williams died on December 31, 1994 from causes unrelated to the incident. Franklin Williams, her husband, was permitted by stipulated order to substitute into the action as the administrator of her estate representing himself and her heirs and survivors. The complaint seeks general, special and punitive damages, and attorney's fees and costs. The parties now dispute what damages Ms. Williams' survivors may recover.

 Mr. Williams moves for a partial summary judgment ordering that the survivors are entitled to recover damages for the physical, mental and emotional pain and suffering that Ms. Williams sustained as a result of the alleged violation. *fn1"

 The question posed by this motion is whether pain and suffering damages, which do not survive under California law, are nonetheless available to survivors in a civil rights action under section 1983 where the deceased plaintiff died of causes unrelated to the incident.

 Since the motion raises a pure question of law, it is amenable to partial summary judgment under Federal Rule of Civil Procedure 56(c) and (d).

 Having considered the parties' arguments and submissions, and for the reasons set forth below, the court enters the following memorandum and order.


 The body of federal law invoked by plaintiff's complaint is referred to as the civil rights statutes, 42 U.S.C. § 1981, et seq. Section 1983 is one of these statutes. The civil rights statutes, including section 1983, do not include their own implementation or enforcement provisions. To the extent such provisions exist they are contained in section 1988. Section 1988 provides that the statutes shall be enforced in accordance with federal law, "but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies" the law of the state of jurisdiction shall apply "so far as the same is not inconsistent with the Constitution and laws of the United States". 42 U.S.C. § 1988(a). Neither section 1988, nor any other provision of the federal civil rights statutes governed by it, addresses the survivorship of claims and remedies upon the death of the holder of the claim. Thus, the governing statutes are deficient.

 Plaintiff offers two theories to fill the deficiencies of sections 1983 and 1988: either (1) federal common law should supply the rules, or (2) California law should apply except insofar as it limits damages and, therefore, is inconsistent with the purposes underlying the civil rights statutes.

 The federal common law approach was rejected in the leading Supreme Court decision in this area. Robertson v. Wegmann, 436 U.S. 584, 56 L. Ed. 2d 554, 98 S. Ct. 1991 (1978). In Robertson the Court noted that there was some support for interpreting the term "common law" as used in section 1988 to mean federal common law, but found it unnecessary to resolve that question because the state survivorship statute "plainly governs this case." 436 U.S. at 589, n.5. *fn2"

 Robertson is equally clear in holding that the law of the state of jurisdiction is the law that applies unless it is inconsistent with Constitutional or federal law. Thus, California survivorship law governs and provides the basis for any further inquiries under section 1988. *fn3" See also Brazier v. Cherry, 293 F.2d 401 (5th Cir.), cert. denied, 368 U.S. 921, 7 L. Ed. 2d 136, 82 S. Ct. 243 (1961); Guyton v. Phillips, 532 F. Supp. 1154, 1165 (N.D. Cal. 1981).

 The parties do not dispute that under California Code of Civil Procedure § 377.20 this action survives the death of Ms. Williams and by reason of its provisions it may be brought by the decedent's survivors. Section 377.20 states: "except as otherwise provided by statute, a cause of action for or against a person is not lost by reason of the person's death, but survives subject to the applicable limitations period." Cal. Civ. Proc. Code § 377.20 (West Supp. 1996). However, section 377.34 limits the recoverable damages to loss or damages the decedent incurred before death, including punitive damages, but specifically excluding pain and suffering.

 The remaining inquiries under section 1988, and the ones presented by this motion, are whether this limitation is inconsistent with federal law and, if so, what rule applies. Under the formulation articulated in Robertson the court must look not only to the particular federal law providing the cause of action, but also to the policies underlying it. 436 U.S. at 590. Quoting Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 240, 24 L. Ed. 2d 386, 90 S. Ct. 400 (1969), the Court found the touchstone of the analysis to be whether the "ultimate rule adopted under § 1988 'is a federal rule responsive to the need whenever a federal right is impaired.'" Robertson, 436 U.S. at 588-89. The acknowledged purposes of a section 1983 action are to compensate persons who have suffered a constitutional violation and deter or prevent "official illegality". Id. at 590-92.

 Relatively few cases have addressed whether the limitations on recovery contained in a state survivorship statute are inconsistent with the purposes of section 1983. The only Supreme Court decision in this area is Robertson itself. In that case the plaintiff instituted an action under section 1983. He died while the suit was pending. As in the case at bar, the plaintiff's death was unrelated to the constitutional violation of which he complained. The Court found that Louisiana survivorship law governed, but held that the action abated because the Louisiana statute provided ...

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