Petition — Robertson v. Wegmann

a!

T|_ MICHAEL RODAR, JR, CLERK

¥

Supreme Court of the United States

OCTOBER TERM, 1977

ne gy 1784

WILLARD E. ROBERTSON,

Petitioner,

versus

CLAY L. SHAW

(EDWARD F. WEGMANN, EXECUTOR),

Respondent

PETITION FOR CERTIORARI TO THE COURT OF

APPEALS FOR THE FIFTH CIRCUIT

Malcolm W. Monroe

4700 One Shell Square

New Orleans 70139

Attorney for Petitioner

Eberhard P. Deutsch,

Christopher M. Guidroz,

Deutsch, Kerrigan & Stiles

Of Counsel

SCOFIELDS’ QUALITY PRINTERS. P O BOX 53096.N 0. LA 70153 . 504/822-1611

Page

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Reasons for Allowing the Writ .................... 6

1 — The decision below is in conflict with

decisions of four circuits all applying

state laws of survivorship, as well as

with principles stated by this Court in

Moor and with the Fifth Circuit’s

earlier decision in Brazier ................. 6

2 — Survivorship of an action brought un-

der §1983 of the Civil Rights Act is a

federal question of utmost importance

which has not been, but should be, set-

ee ID dine dines cuiece te nce tacceas 10

Es cernos Goeed sn ndereedesatntkanetouss ces 13

Appendix A — Opinion of the Court of

TEED cose 0 00 05.8.0 2 4560 0 awe Kenn + cenaeneenecnece 14

Appendix B — Judgment of the Court of

PEE: £ckdupGdeddecaneeabsbudcenawsasendensdss 29

Appendix C — Court of Appeals’ Denial of Re-

PEE bau ciniqedcdenadsauekbousécournekesseessee 30

Appendix D — Opinion of the DistrictCourt ..... 32

Appendix E — Text of Statutes Involved ......... 71

ii

AUTHORITIES

Page

Cases:

Brazier vs Cherry, 293 F2d 401 (CA 5-1961) . 6,8,10,11

Dean vs Shirer, 547 F2d 227 (CA 4-1976) .... 6,9,10,11

Evain vs Conlisk, 364 F.Supp. 1188 (ND IIL.-

1973), aff'd 498 F2d 1403 (CA 7-1974) .......... 7,11

Griffin vs Breckenridge, 403 US 88 (1971) ........ 10

Hall vs Wooten, 506 F2d 564 (CA 6-1974) ...... 6,8,11

Holmes vs Silver Cross Hosp., 340 F.Supp.

SP CUED Eda hk cchb di Keke iceKaees cxtees 7,11

Jones vs Hildebrandt, 45 LW 4703 (June 16,

STUD 2k:0s cupeedwedensactnace tines 6dobahes ib babous 12

Moor vs County of Alameda, 411 US 693(1973) ..6,7,10

Moragne vs States Marine Lines, Inc., 398 US

OPEN ened ccteedscbh cesses vases cdndoswns deedan 12

Pritchard vs Smith, 289 F2d 153 (CA 8-1961) ..6,7,11

Shaw vs Garrison, 391 F.Supp. 1353 (ED La.-

1975, aff'd 545 F2d 980 (CA 5-1977) ............ 1,5,9

Spence vs Staras, 507 F2d 554 (CA 7-1974) ...6,7.11

Wolfer vs Thaler, 525 F2d 977 (CA 5-1976) ...... 8,11

Statutes:

Se EE nk.6occabbecscdbhévedsebaenute ddevesees ce 2

PE NS anid coucdewesconnctcnecdscalenssdipadacs 4

PEs SED ob vbiawdssdvccccsscessevecipscnseedenes 4

iii

AUTHORITIES (Continued)

Page

Civil Rights Acts '

GE ED ceteccavccccssascossvecscees 1, et seq.

SE ED cee redbusdéesccédccseesvaseeensceere 10

SEED. ohdneec cedar sccessetaccetecpncres 10,12

GT FD ccc ccc este seebesevessccccces 2, et seq.

Death on the High Seas Act, 46 USC 761, et

BO. cdcccdvdevsede siscosécbcctscvecssccccccees 10,12

Federal Employers’ Liability Act, 45 USC 51,

GEG, cccccecevcsicseccecccvescceveccececcecs 10,12

Soman Beak, GB TS GD io visc vce icicccccvcccccccce 10,12

Longshoremen’s and Harbor Workers’ Com-

pensation Act, 33 USC 908-909 .............. 10,12

Louisiana Civil Code, Article 2315 ............... 3,5

Rules:

U.S. Sup. Ct. Rule 21, par. 4 ........ cess eeeeeeees 4

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No.

WILLARD E. ROBERTSON,

Petitioner,

versus

CLAY L. SHAW

(EDWARD F. WEGMANN, EXECUTOR),

Respondent

PETITION FOR CERTIORARI TO THE COURT OF

APPEALS FOR THE FIFTH CIRCUIT

Petitioner, Willard E. Robertson, prays thata writ of

certiorari issue to review the judgment of the Court of

Appeals for the Fifth Circuit in No. 75-2091, rendered

on January 24, 1977 (rehearing denied, June 20, 1977),

affirming the judgment of the District Court denying

defendants’ motion to dismiss this action for damages

under 42 USC 1983 for the reason that it had abated

with plaintiff's death.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at

545 F2d 980, and is reproduced as Appendix A, p. 14;

and the order of the Fifth Circuit denying the applica-

tion for rehearing is reproduced as Appendix C, p.

30. The decision of the United States District Court

for the Eastern District of Louisiana, reported at 391

F.Supp. 1353, appears as Appendix D, p. 32.

2

JURISDICTION

The opinion and judgment of the Court of Appeals

was entered on January 24, 1977, and the order denying

the request for rehearing was entered on June 20, 1977.

The jurisdiction of this Court is invoked under 28 USC

1254(1).

QUESTIONS PRESENTED

The novel and important questions of law presented

are:

3

that an action abated with the death of the in-

jured party — and there is no real authority for

the federal court now to create a federal com-

mon law of survivorship of an action under

§1983 of the Civil Rights Act when Congress

itself did not see fit legislatively to ameliorate

the existing rule, except by enacting §1988 of

the Civil Rights Act to incorporate as federal

law the state law of survivorship currently

existing in the forum?

STATUTES INVOLVED

42 USC 1983, and Louisiana’s survivorship statute,

Civil Code Article 2315, are reproduced as Appendix

E, pp. 71-72. The central issue of this petition turns on

42 USC 1988 which provides:

1 — May a federal court, in determining

whether an action under §1983 of the Civil

Rights Act survives the death of the plaintiff,

refuse to follow the dictates of §1988 of that Act

which provides that — inasmuch as the Civil

Rights Act does not make any provision with

respect to survival of actions under §1983 —

the court shall look to, and be governed by, the

law of the State in which the case is pending,

and instead, judicially create a new “federal

common law” of absolute survivorship, mere-

ly because the explicit law of the State

provides for survival of such actions for per-

sonal damages only in favor of certain

designated beneficiaries, none of whom was

left by the deceased plaintiff?

2 — Can the decision of the court below be

allowed to stand when there has never been in

existence any federal common law of sur-

vivorship of civil actions — to the contrary,

the long-standing rule of common law being

“The jurisdiction in civil and criminal

matters conferred on the district courts by the

provisions of this chapter and Title 18, for the

protection of all persons in the United States

in their civil rights, and for their vindication,

shall be exercised and enforced in conformity

with the laws of the United States, so far as

such laws are suitable to carry the same into

effect; but in all cases where they are not

adapted to the object, or are deficient in the

provisions necessary to furnish suitable

remedies and punish offenses against law, the

common law, as modified and changed by the

constitution and statutes of the State wherein

the court having jurisdiction of such civil or

criminal cause is held, so far as the same is not

inconsistent with the Constitution and laws of

4

the United States, shall be extended to and

govern the said courts in the trial and disposi-

tion of the cause, and, if it is of a criminal

nature, in the infliction of punishment on the

party found guilty.”

STATEMENT OF THE CASE

Clay L. Shaw brought this action against Jim Gar-

rison and others, including petitioner,’ asserting a

claim for damages under §1983 of the Civil Rights Act

(42 USC 1983) by reason of his having been prosecuted

for conspiracy to assassinate President Kennedy and,

subsequently, for perjury charges growing out of the

original prosecution. The court’s jurisdiction was in-

voked pursuant to 28 USC 1331 and 1343.

While the action below was pending, plaintiff Shaw

died. He was survived by neither spouse, parent, child,

brother or sister, nor any other dependent kin. The

only person now having an interest in the damages

claimed in this action is plaintiffs sole residuary

legatee, a friend. However, the district court, over the

objection of defendants, entered an ex parte order, per-

mitting the executor of Shaw’s estate to be substituted

as the plaintiff in this action.

Defendants moved to dismiss the action on the

ground that it has been extinguished by Shaw’s death,

because under the law of Louisiana (Louisiana Civil

1 The defendants-appellants below were Jim Garrison, the Dis-

trict Attorney for the Parish of Orleans at the time the action was

filed; three private citizens, including petitioner Willard E.

Robertson; and an asserted member of Garrison’s staff. Only

Robertson is petitioning for certiorari, but petitioner believes that

all other parties below have an “interest in the outcome of the peti-

tion” (U.S.Sup.Ct. Rule 21, par. 4).

Code, Article 2315), which must be extended to and

govern this case under the dictates of §1988 of the Civil

Rights Act, there is no party in whose favor the right

of recovery legally survives.

The lower court denied the motions, and on defen-

dants’ interlocutory appeal, the Fifth Circuit affirmed.

The appellate court recognized that all parties are in

agreemient, and accepted the holding of the lower

court, that under the law of Louisiana, plaintiff's claim

under §1983 would have abated, since an action for

damages for personal injuries, such as the instant one,

survives the death of the plaintiff only in favor of cer-

tain designated beneficiaries customarily recognized

as dependent relatives — those having a close family

tie to a deceased plaintiff — that is, his spouse,

children, parents or siblings. Shaw vs Garrison, 545

F2d 980, 982 (CA 5-1977); Appendix A, p. 16.

While conceding that it must look to the law of

Louisiana under §1988 of the Civil Rights Act, the

court held, however, that inasmuch as the law of

Louisiana does not provide for survival of this par-

ticular action, since plaintiff Shaw did not leave any

of the designated familial beneficiaries, it was ‘“‘in-

consistent’, not with the “laws of the United States”,

but with the “policy” or “purposes” of the Civil Rights

Act and would be rejected. 545 F2d at 983; Appendix,

pp. 19-20. The Fifth Circuit, like the district court, then

formulated a new “federal common law” of absolute

survivorship of civil rights actions under §1983 when

none had existed before. 545 F2d at p. 984 et seq.;

Appendix, p. 22 et seq.

6

REASONS FOR ALLOWING THE WRIT

1 — The Decision Below Is In Conflict With

Decisions Of Four Circuits All Applying

State Laws Of Survivorship, As Well As

With Principles Stated By This Court In

Moor And With The Fifth Circuit’s Own

Earlier Decision In Brazier

Certiorari should be granted to review the Court’s

holding below that, despite the express dictate of §1988

of the Civil Rights Act, the “policy” of the Act sanc-

tions the federal court's ignoring the law of the forum

state which permits survival only in favor of

designated familial beneficiaries and its creation ofa

“federal common law” permitting survival of an ac-

tion under §1983 in favor of the estate for the benefit of

the decedent's friend named as residuary legatee,

because such holding is in conflict with decisions of

four other circuits which recognized that the state

laws of survivorship should be applied under §1988

[Pritchard vs Smith, 289 F2d 153 (CA 8-1961); Spence

vs Staras, 507 F2d 554 (CA 7-1974); Hall vs Wooten, 506

F2d 564 (1974); and Dean vs Shirer, 547 F2d 227 (CA 4-

1976)], as well as principles enunciated by this Court

in Moor vs County of Alameda, 411 US 693 (1973), and

by the Fifth Circuit in its own earlier decision in

Brazier vs Cherry, 293 F2d 401 (CA 5-1961).

In Pritchard, 289 F2d 153 (CA8-1961), the Eighth Cir-

cuit, noting that §1983 does not specifically treat with

the survival issue and that under §1988, resort should

be had to state law, held “that the court should look to

the Arkansas law to determine the survival issue here

present’. Since the Court found the action to be one for

7

“wrongs to the person other than libel and slander’, it

survived under the Arkansas law. 289 F2d at p. 158.

The decision of the Fifth Circuit below is

diametrically opposed to that of the Seventh Circuit in

Spence vs Staras, 507 F2d 554 (CA 7-1974), which

stated emphatically that “in a federal civil rights ac-

tion where the person who has been deprived of his

rights has died, the action survives for the benefit of

the estate if the applicable state law creates such a sur-

vival action” (p. 557).2 While sustaining the represen-

tative action as surviving under Illinois law, the court

dismissed plaintiff's individual action since it did not

survive under the state law.

Although the Court below quoted from this Court’s

decision in Moor vs Alameda, 411 US 693 (1973) (see

545 F2d at 982; Appendix, p. 20), the Fifth Circuit's

decision is actually in conflict with the principles

stated in Moor that Ҥ1988 instructs federal courts as to

what law to apply in causes of actions arising under

federal civil rights acts” (p. 703), and that “although

Congress may have assigned to the process of judicial

implication the task of selecting in any particular

case appropriate rules from state law to supplement

established federal law, the application ofthat process

is restricted to those contexts in which Congress has

in fact authorized resort to state and common law” (p.

701).

2 The Court cited with approval not only the Brazier case, but

also Evain vs Conlisk, 364 F.Supp. 1188, 1191 (ND I11.-1973), aff'd

498 F2d 1403 (CA 7-1974), and Holmes vs Silver Cross Hosp., 340

F.Supp. 125, 129(ND I11.-1972), in both of which latter two cases, the

courts dismissed the actions since under the applicable state law,

they did not survive.

The decision of the Fifth Circuit below is also actual-

ly in conflict with its own prior decision in Brazier vs

Cherry, 293 F2d 401 (CA 5-1962), deemed presently to

be the leading case on the question of survivorship un-

der §1983 by application of state law as dictated by

§1988. In that case, the Fifth Circuit, speaking through

Chief Judge Brown, held that any “amelioration of the

harshness of the principle (the long- and well-

established common law rule of abatement of actions

upon death of the injured person) must come from

legislation” (p. 403), and “that Congress adopted as

federal law the currently effective state law on the

general right of survival. This was done by §1988”’ (p.

405 — emphasis supplied). See also Wolfer vs Thaler,

525 F2d 977 (CA 5-1976), fn. 1 at p. 978.

In Hall vs Wooten, 506 F2d 564 (CA 6-1974), the Sixth

Circuit — much like the Fifth Circuit in Brazier, but

contrary to the court below — held that, “following

section 1988”, the court must “look to state law in

fashioning federal common law”, and that “we adopt

as federal common law, the law of Kentucky, the

forum state, which provides for the survival of actions

for personal injury (quoting the state statute). Since

none of the exceptions (that is, actions for slander,

libel, criminal conversion and malicious prosecution)

is applicable here, we hold that the cause of action

alleged in this case survived the death of the injured

person” (p. 569 — emphasis supplied).°

3 The Fifth Circuit's creation of a federal common law of survival

in favor of any and all representatives of a decedent not only flies

in the face of the Sixth Circuit's ruling in Hall that feaeral common

law is to be derived from the applicable state statute, but also con-

flicts with all federal survival statutes. See pp. 9-10, and 12, infra.

In the recent case of Dean vs Shirer, 547 F2d 227 (CA

4-1976),4 the Fourth Circuit carefully analyzed plain-

tiff’s §1983 claim to determine if it survived under the

laws of South Carolina, which it obviously

acknowledged as governing the disposition of the

case. The court applied the state statute which does not

provide for absolute survival, but for survival of only

certain types of action. After quoting the South

Carolina statute involved, the Fourth Circuit stated

that “exceptions to such survivorability of actions for

personal injuries are actions for malicious prosecu-

tion, slander, fraud and deceit” (547 F2d at 229).

The Fourth Circuit thus recognized that if Dean's ac-

tion had been in the nature of one for malicious

prosecution, slander, fraud or deceit, it would not have

survived. Only the appellate court’s categorization of

the action as one for false imprisonment or assault

allowed it to survive.

In the instant case, there is no question that Shaw's

action is of the category which would survive under

the law of Louisiana only if Shaw would have left a

wife, child, father, mother, brother or sister. Because

Shaw was not survived by any such designated

familial beneficiaries, the law of Louisiana — like the

federal survivorship laws, such as the Federal

Employers’ Liability Act, the Jones Act, the

Longshoremen’s and fiarbor Workers’ Act, the Death

on the High Seas Act, and even §1986 of the Civil

4 Although Dean was actually decided before Shaw, it was not

published until after the decision below and was not considered by

the Fifth Circuit.

10

Rights Act’ — dictates that his action does not survive.

The Fifth Circuit — contrary to the court in Dean —

refused, however, to apply the state law, and held that

the result mandated by 42 USC 1988 was undesirable,

and hence avoidable through the creation of a federal

common law entirely contrary to all recognized legal

tenets.

The rejection of Louisiana’s survivorship law by the

Fifth Circuit in the case at bar effectively removes the

mandate of §1988 of the Civil Rights Act and replaces

that statute with a federal common law rule of ab-

solute survivorship.

The holding below, conflicting in theory, principle

and statutory application with the holdings of four

other circuit courts, as well as this Court’s decision in

Moor and the Fifth Circuit’s own prior decision in

Brazier, and with §1988 of the Civil Rights Act, should

be reviewed by this Court to resolve such conflicts.

2 — Survivorship Of An Action Brought Un-

der §1983 Of The Civil Rights Act Is A

Question Of Utmost Importance Which

Has Not Been, But Should Be, Settled By

This Court

Because the Fifth Circuit concedes that plaintiff's

action would abate under Louisiana law, but goes on to

5 The Federal Employer's Liability Act, 45 USC 51, et seq.; Jones

Act, 46 USC 688; Longshoremen’s and Harbor Workers’ Compensa-

tion Act, 33 USC 908-909; Death on the High Seas Act, 46 USC 761, et

seq.; Civil Rights Act, 42 USC 1985-1986, governing actions for acts

of “invidious discrimination” [Griffin vs Breckenridge, 403 US 88

(1971)).

11

formulate a federal common law rule of absolute sur-

vivorship, this case provides a perfect vehicle for this

Court to consider whether or not courts will continue

to look to state laws of survivorship as provided in 42

USC 1988 or, by means of judicial legislation, com-

pletely bypass such analysis and permit absolute sur-

vivorship under “federal common law”.

The importance of this issue is apparent when the

effect of the Fifth Circuit’s decision is considered: by

judicial fiat of the court below, rather than by

legislative action, §1988 has been written out of the

Civil Rights Act in favor of a federal common law of

absolute survivorship. Further, that result draws into

question the value of all previous decisions based on

applicable state statutes, which decisions all contain

careful analyses of the causes of action, and/or

classes of beneficiaries who have standing to pursue

actions, under state survivorship statutes.®

The holding below represents such a drastic depar-

ture from all previous decisions on the issue, that it

should be reviewed by the Supreme Court. Moreover, a

writ of certiorari should be granted by this Court to

settle the meaning of an essential section (§1988) of

this important Act of Congress, the Civil Rights Act.

Finally, even conceding for the purposes of this con-

sideration only, that federal common law, and not

6 Seee. g., Pritchard vs Smith, 289 F2d 153 (CA 8-1961); Brazier vs

Cherry, 293 F2d 401 (CA 5-1961); Spence vs Staras, 507 F2d 554(CA

7-1974); Hall vs Wooten, 506 F2d 564 (CA 6-1974); Dean vs Shirer,

547 F2d 227 (CA 4-1976); Wolfer vs Thaler, 525 F2d 977 (CA 5-1976);

Holmes vs Silver Cross Hosp., 340 F.Supp. 125 (ND II1.-1972):

ont p> A — 364 F.Supp. 1188(ND I11.-1973), aff'd 498 F2d 1403

12

state law through application of §1988, should govern

the survivorship of actions under §1983, certiorari

should be granted to determine the overriding

national issue as to what such federal common law

should be.

It is submitted that there is no basis whatsoever fora

federal common law of absolute survivorship as for-

mulated by the court below, but that in formulating

any such federal common law, the federal courts

should be persuaded, if not bound, by the various

federal laws of survival, including §1986 of the Civil

Rights Act,’ all of which, whether relating to wrongful

injury actions or wrongful death actions, are explicit

“in the naming of dependent relatives who may

recover and in (providing) the priority given to their

claims” [Moragne vs States Marine Lines, Inc., 398 US

375, 407 (1970)].

In sum, this case encompasses questions of excep-

tional importance as to the construction and applica-

tion of the Civil Rights Act, including the abrogation

of §1988 itself resulting from the holding below, and

the right of a court, by judicial fiat, to create an ab-

solute survivorship of actions under the Civil Rights

Act, despite the fact that Congress itself had refused to

do so and that the long-established common law, both

federal and state, did not recognize survivorship of

any such personal claims of an injured party.

“This Court has never addressed these issues”’ [{cf.

dissent. Jones vs Hildebrandt, 45 LW 4703 (June 16,

1977), at 4705], and should do so in this case.

7 Supra, fn. 5.

13

CONCLUSION

For the reasons set forth above, it is respectfully

submitted that this petition for certiorari should be

granted.

Malcolm W. Monroe

Attorney for Petitioner

Eberhard P. Deutsch,

Christopher M. Guidroz,

Deutsch, Kerrigan & Stiles

Of Counsel

APPENDIX

14

APPENDIX A

Clay L. SHAW, Plaintiff-Appellee,

Vv.

Jim GARRISON et al.,

Defendants-Appellants.

No. 75-2019.

United States Court of Appeals,

Fifth Circuit.

Jan. 24, 1977.

Appeal from the United States District Court for the

Eastern District of Louisiana.

Before WISDOM and INGRAHAM, Circuit Judges,

and GROOMS,* District Judge.

WISDOM, Circuit Judge:

This case, before us on an interlocutory appeal, 28

U.S.C. § 1292(b), arises from an investigation con-

ducted by the then district attorney of Orleans Parish,

Jim Garrison, concerning the assassination of Presi-

dent John F. Kennedy and the prosecution of Clay

Shaw for conspiring to assassinate President

Kennedy. It presents a novel question of law: Does an

action a plaintiff institutes under 42 U.S.C. § 1983 sur-

vive his death despite the fact that the claim would

abate under state law? We agree with the district court

that it does survive and we borrow liberally from

Judge Fred J. R. Heebe’s reasoning in his opinion

reported at 391 F.Supp. 1353.

* Senior District Judge for the Northern District of Alabama, sit-

ting by designation.

15

I.

There is no need to recite the Kafkaesque facts in

this case which the district judge characterized as

“one of the most bizarre episodes in American

political and legal history.” 391 F.Supp. 1353. In addi-

tion to the district court’s adequate discussion, 391

F.Supp. 1353, 1356-58, the factual background is fully

set out in a related case, Shaw v. Garrison, 1971,

E.D.La., 328 F.Supp. 390, aff’d 5 Cir. 1972, 467 F.2d 113,

cert. denied 1972, 409 U.S. 1024, 93 S.Ct. 467, 34 L.Ed.2d

317. It suffices here to note that Shaw, through his ex-

ecutor, charges that District Attorney Garrison and

the other named defendants, certain citizens of New

Orleans, deprived him of his civil rights by improper-

ly linking him with the Kennedy assassination and by

conducting, as well as financing, a publicized in-

vestigation and prosecution of him for his alleged role

in that national tragedy. The question presently

before us arises because Shaw died after he initiated

this § 1983 action but before the matter was ever

brought to trial.

Upon his death on August 15, 1974, Shaw was not

survived by a spouse, children, parents, or siblings.

Under Louisiana law, the applicable state law if state

law is applicable, pending actions for personal

damages survive only in favor of certain classes of

beneficiaries named in La.Civ.Code Art. 2315.! See J.

1 Art. 2315. Liability for acts causing damage; survival of ac-

tion

Every act whatever of man that causes damage to

another obliges him by whose fault it happened to repair it.

The right to recover damages to property caused by an

offense or quasi offense is a property right which, on the

death of the obligee, is inherited by his legal, instituted, or

16

Wilton Jones Co. v. Liberty Mutual Insurance Co.,

Ct.App.1971, 248 So.2d 878, writ denied, 259 La. 61, 249

So.2d 202, cited with apparent approval in Austrum v.

City of Baton Rouge, 1973 La., 282 So.2d 434. Under

Louisiana law, because Shaw has no statutory sur-

vivors an executor is a proper survivor only to actions

for property damage. All parties agree that if

Louisiana law applies, Shaw’s § 1983 claim abates.?

We observe at the outset that Fed.R.Civ.P. 25(a)(1)°

does not resolve the question what law of survival of

irregular heirs, subject to the community rights of the sur-

viving spouse.

The right to recover all other damages caused by an

offense or quasi offense, if the injured person dies, shall

survive for a period of one year from the death of the de-

ceased in favor of: (1) the surviving spouse and child or

children of the deceased, or either such spouse or such

child or children; (2) the surviving father and mother of the

deceased, or either of them, if he left no spouse or child sur-

viving; and (3) the surviving brothers and sisters of the de-

ceased, or any of them, if he left no spouse, child, or parent

surviving. The survivors in whose favor this right of ac-

tion survives may also recover the damages which they

sustained through the wrongful death of the deceased. A

right to recover damages under the provisions of this

paragraph is a property right which, on the death of the

survivor in whose favor the right of action survived, is in-

herited by his legal, instituted, or irregular heirs, whether

suit has been instituted thereon by the survivor or not.

As used in this article, the words ‘child’, “brother”,

“sister”, “father”, and “mother” include a child, brother,

sister, father, and mother, by adoption, respectively.

2 Whether this suit could properly be deemed an action for

damage to property because of the costs Shaw incurred in defend-

ing himself and the losses he suffered as a direct result of his

prosecution was vigorously contested below and decided in the

negative. Because this holding by the district court has not been

appealed, we intimate no view on the issue.

3 Rule 25. Substitution of Parties.

(a) Death.

(1) If a party dies and the claim is not thereby extin-

guished, the court may order substitution of the proper

parties. The motion for substitution may be made by any

party or by the successors or representatives of the de-

17

actions should be applied in this case. That rule sim-

ply describes the manner in which parties are to be

substituted in federal court once it is determined that

the applicable substantive law allows the action to

survive a party’s death. Ransom v. Brennan, 5 Cir.

1971, 437 F.2d 513, 520, cert. denied, 1971, 403 U.S. 904, 91

S.Ct. 2205, 29 L.Ed.2d 680; 3B Moore’s Federal Practice

€ 25.04[1], at 121; Note, 44 Fordham L.Rev. 666, 667-68

(1975). This Court has previously determined that Art.

2315 of the La.Civil Code is substantive rather than

procedural and consequently that “it does not clash

with Rule 25(a).” Roberson v. N.V. Stoomvaart Maat-

schappij, 5 Cir. 1975, 507 F.2d 994, 996. We must look to

the civil rights statutes themselves to determine

whether Louisiana’s law of survival must be applied

to this action.

“Properly viewed ... [42 U.S.C.] § 1988 instructs

federal courts as to what law to apply in causes of ac-

tion arising under federal civil rights acts.”’ Moor v.

County of Alameda, 1973, 411 U.S. 693, 703, 93 S.Ct.

1785, 1792, 36 L.Ed.2d 596. That section provides:

“The jurisdiction in civil and criminal matters

conferred on the district courts by the

provisions of this chapter and Title 18, for the

protection of all persons in the United States

in their civil rights, and for their vindication,

shall be exercised and enforced in conformity

ceased party and, together with the notice of hearing, shai

be served on the parties in the manner provided in Rule 4

for the service of a summons, and may be served in any

judicial district. Unless the motion for substitution is

made not later than 90 days after the death is suggested

upon the record by service of a statement of the fact of the

death as provided herein for the service of the motion, the

action shall be dismissed as to the deceased party.

18

with the laws of the United States, so far as

such laws are suitable to carry the same into

effect; but in all cases where they are not

adapted to the object, or are deficient in the

provisions necessary to furnish suitable

remedies and punish offenses against law, the

common law, as modified and changed by the

constitution and statutes of the State wherein

the court having jurisdiction of such civil or

criminal cause is held, so far as the [sic — see

p. 3, supra, for phrase omitted from quotation]

United States, shall be extended to and govern

the said courts in the trial and disposition of

the cause, and, if it is of a criminal nature, in

the infliction of punishment on the party

found guilty.”

In effect, § 1988 sets forth a three step process for

determining the applicable substantive law in civil

rights cases. First, the Court must decide whether the

Civil Rights Acts are “deficient” in furnishing a

remedy for the vindication of a plaintiff's civil rights.

If this inquiry is answered affirmatively, we are then

directed to look to state law to fill the interstices in the

federal provisions. Finally, if there is state law

available to fill the gap in the federal statutes, we must

insure that the state law is not inconsistent with

federal statutory and constitutional law.

This Court has already determined that the civil

rights statutes are deficient with respect to sur-

vivorship. Brazier v. Cherry, 5 Cir. 1961, 293 F.2d 401,

408, cert. denied, 1961, 368 U.S. 921, 82 S.Ct. 243, 7

L.Ed.2d 136. Other courts, including the Supreme

Court, have reached the same conclusion. Moor v.

County of Alameda, 1973, 411 U.S. 693, 702, n. 14, 93

19

S.Ct. 1785, 36 L.Ed.2d 596, Pritchard v. Smith, 8 Cir.

1961, 289 F.2d 153, 155. We therefore must apply

Louisiana’s survivorship law unless that law “is in-

consistent with the Constitution and laws of the Unit-

ed States.”

In analyzing whether La.Civ. Code Ann. art. 2315 is

incompatible with federal law, it is important to

clarify the type of action we are dealing with. As the

district court stressed:

“We emphasize at the outset that we are not

concerned with wrongful death actions for

damages to others caused by the tort victim's

death. Also to be distinguished are survival of

causes of action, where the tort victim dies

without bringing suit, and the question is

whether a party may institute suit to recover

for the tort victim’s own damages.”

391 F.Supp. at 1361 (emphasis in original). Instead, we

are concerned with a pending action for damages, in-

stituted by a plaintiff on his own behalf before his

death, seeking damages to redress a violation of his

civil rights.4 Moreover, we are dealing with a situation

in which the application of the relevant state survival

law to a federal cause of action will leave the plaintiff

without a remedy in either federal or state courts. See

Moragne v. State Marine Lines, 1970, 398 U.S. 375, 90

S.Ct. 1772, 26 L.Ed.2d 339. This we refuse to do. Because

Louisiana’s survivorship provisions would cause

4 This is therefore not an attempt to sue under the civil rights

statutes for deprivation of another's constitutional rights. Such

suits are impermissible. O’Malley v. Brierley, 3 Cir. 1973, 477 F.2d

785: Brown v. Board of Trustees of LaGrange Independent School

Dist., 5 Cir. 1951, 187 F.2d 20.

20

Shaw’s pending civil rights action to abate, we find

that Louisiana law is inconsistent with the broad

remedial purposes embodied in the Civil Rights Acts

— laws designed to insure to all citizens “the right to

be free from deprivation of constitutional civil

rights.” Brazier v. Cherry, 293 F.2d at 409. We therefore

decline to apply Louisiana law of survival. As the

Supreme Court said in Moor v. County of Alameda,

“{§ 1988] expressly limits the authority granted

federal courts to look to the common law, as modified

by state law, to instances in which that law ‘is not in-

consistent with the Constitution and laws of the Unit-

ed States.’ ” 411 U.S. at 706, 93 S.Ct. at 1794. The phrase

“laws of the United States” must be read to encompass

the civil rights statutes. It would be specious reason-

ing at best to suggest that Congress was concerned

about the possibility that in enforcing the civil rights

statutes, state law inconsistent with tangential federal

law might be relied upon, but was not concerned about

the possibility of hostile state law interfering with

carrying out the purposes of the Civil Rights Acts

themselves. See Monroe v. Pape, 1960, 365 U.S. 167, 81

S.Ct. 473, 5 L.Ed.2d 492.

Where state law has proved to be an unsuitable vehi-

cle to provide the relief envisioned by § 1983, federal

courts have looked beyond the inhospitable law. In

Pierson v. Ray, 1967, 386 U.S. 547, 87 S.Ct. 1213, 18

L.Ed.2d 288, the Supreme Court held that consent to an

injury is not a defense available under § 1983

regardless of its availability under state law. Similar-

ly, the Second Circuit rejected the contention that “‘all

state officials in suits brought under § 1983 enjoy an

immunity similar to that they might enjoy in suits un-

der state law”, noting that such a holding “would prac-

21

tically constitute a judicial repeal of the Civil Rights

Acts.” Jobson v. Henne, 2 Cir. 1966, 355 F.2d 129, 133.

For over 60 years this Court has said that the statute of

limitations applicable to § 1983 actions is determined

by state law.5 Nevertheless, we refused to apply a ten

day state statute of limitations to an action brought

under § 1983 because the “aims [of the civil rights

statutes] would be seriously curtailed, if not complete-

ly frustrated . . . if a state could, in effect, modify this

important act of Congress, by limiting litigants to

court action within ten days...” Franklin v. City of

Marks, 5 Cir. 1971, 439 F.2d 665, 669. In sum, as one

commentator has concluded:

“Generally, state statutes have been con-

sidered only for the beneficial effect they

would have on the plaintiff's case. If the

federal policy in favor of the protection of civil

rights is a strong one, as the federal courts fre-

quently insist, then local concerns reflected in

state statutes that stand to bar or diminish

plaintiff's chances of recovery will likely give

way.”

5 O'Sullivan v. Felix, 1914, 233 U.S. 318, 34 S.Ct. 596, 58 L.Ed. 980;

Shaw v. McCorkle, 5 Cir. 1976, 537 F.2d 1289. See Note, A Limita-

tion on Action for Deprivations of Federal Rights, 68 Colum.L.Rev.

763 (1968). We agree with Judge Heebe below that the fact that state

statutes of limitation apply to federal civil rights actiors

in no way undercuts our decision today for there is a

significant distinction between statutes of limitation and

those restricting survival of causes of action. Statutes of

limitation merely regulate the permissible time for filing

suit: so long as the ap licable period is clear, a plaintiff

can assure himself of filing a timely action. However, stat-

utes regulating survival may, as the Louisiana statute

would here. entirely bar plaintiffs from ever filing suit.

Thus the hardship worked by the latter type of statute is

much more severe.

391 F.Supp. at 1366 n. 19.

Theis, Shaw v. Garrison, Some Observations On 42

U.S.C. § 1988 And Federal Common Law, 36 La.L.Rev.

681, 688 (1976).

II.

Because Louisiana law is unsuitable, and therefore

unavailable, to remedy §1983’s deficiency with

respect to survival, we hold that Shaw’s action sur-

vives in favor of his estate as a matter of federal com-

mon law. Federal common law is alive and well and

living in the federal judicial system.® Federal courts

will recognize federal common law when it is

necessary to carry out the congressional objectives of

federal legislation. J. I. Case v. Borak, 1964, 377 U.S.

426, 84 S.Ct. 1555, 12 L.Ed.2d 423; Textile Workers v.

Lincoln Mills, 1957, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d

972. In Lefton v. City of Hattiesburg, 5 Cir. 1964, 333

F.2d 280, this Court commented upon the duty of the

federal courts to use their common law powers to ad-

vance the purposes of the civil rights statutes.

“In civil rights cases ... Congress has

directed the federal courts to use that com-

bination of federal law, common law, and state

law as will be best ‘adapted to the object’ of the

civil rights laws.... Therefore a federal

court is required to use common law powers

to facilitate and not to hinder, ‘[p]roceedings

in vindication of civil rights.’ ”’

6 See P. Bator, P. Mishkin, D. Shapiro & H. Wechsler, Hart &

Wechsler’s The Federal Courts and the Federal System (2d ed.

1973); Friendly, In Praise of Erie — And of the New Federal Com-

mon Law, 39 N.Y.U.L.Rev. 383 (1964); Note, Choice of Law under

Section 1983, 37 U.Chi.L.Rev. 494 (1970); Note, The Federal Com-

mon Law, 82 Harv.L.Rev. 1512 (1969).

333 F.2d at 284.

Our utilization of federal common law to allow

Shaw’s action to survive in the face of hostile state law

furthers the policy voiced in Lefton, and is consistent

with the Supreme Court’s decision in Sullivan v. Litile

Hunting Park, Inc., 1969, 396 U.S. 229, 90 S.Ct. 400, 24

L.Ed.2d 386. The Supreme Court there recognized the

broad remedial policies underlying the civil rights

statutes and held

“that both federal and state rules on damages

may be utilized, whichever better serves the

policies expressed in the federal [civil rights]

statutes. Cf. Brazier v. Cherry, 293 F.2d 401.

The rule of damages, whether drawn from

federal or state sources, is a federal rule

responsive to the need whenever a federal

right is impaired.”

(Emphasis added.) 396 U.S. at 240, 90 S.Ct. at 406. We

see little difference between the development of

federal law to allow for maximum damage recovery

under the Civil Rights Acts and the formulation of

federal law to allow a previously instituted civil

rights action to survive in favor of the injured party’s

estate. Both results follow from the “well settled [prin-

ciple] that where legal rights have been invaded, anda

federal statute provides for a general right to sue for

such invasion, federal courts may use any available

remedy to make good the wrong done.” Bell v. Hood,

1946, 327 U.S. 678, 684, 66 S.Ct. 773, 777, 90 L.Ed. 939.

Moreover, adoption of a federal rule of survival is

desirable because it fosters the uniform application of

24

the civil rights laws. Basista v. Weir, 3 Cir. 1965, 340

F.2d 74; Nelson v. Knox, 6 Cir. 1958, 256 F.2d 312

(Stewart, J.). Ig Basista, the court refused to apply a

Pennsylvania damage rule that prohibited the award

of punitive damages without actual damages. The

court observed:

“We believe that the benefits of the [Civil

Rights] Acts were intended to be uniform

throughout the United States, that the protec-

tion to the individual to be afforded by them

was not intended by Congress to differ from

state to state, and that the amount of damages

to be recovered by the injured individual was

not to vary because of the law of the state in

which the federal court suit was brought.

Federal common law must be applied to effect

uniformity, otherwise the Civil Rights Acts

would fail to effect the purposes and ends

which Congress intended.”

340 F.2d at 86. Were we to 'ook only to the state law of

survival, Shaw’s instant action would survive in four

of the states in this Circuit — Florida, Georgia, Mis-

sissippi, and Texas — and abate in two — Alabama and

Louisiana.? Such divergent results are not a

justifiable product of a federa) statute promulgated to

insure the availability of redress for the deprivation of

federally protected civil rights.

The marked tendency of the federal courts to allow

actions to survive in other areas of particular federal

7 Code of Ala. Title 7, § 150; Fla.Stat.Ann. § 46.021; Ga.Code Ann.

§ 3-505; La.Civ.Code Ann. Art. 2315; Miss.Code Ann. § 91-7-233;

Vernon's Tex.Civ.Stat.Ann. Art. 5525.

concern further compels our result here. As this Court

observed in Brazier v. Cherry, 5 Cir. 1961, 293 F.2d 401,

“At every turn the Supreme Court, by drawing

on available state legislation or giving a

broad liberal effect to federal statutes has

found a way to make compensation effective

despite statutory language which might have

made non-survival plausible, if not probable,

during an earlier era.”

293 F.2d at 406. This trend is most evident in maritime

law, where the Supreme Court, with little or no

statutory authorization has held that Jones Act ac-

tions survive both the death of the tortfeasor, Cox v.

Roth, 1954, 348 U.S. 207, 75 S.Ct. 242, 99 L.Ed. 260, and

the death of the beneficiary in a wrongful death action,

Van Beeck v. Sabine Towing Co., 1936, 300 U.S. 342, 57

S.Ct. 452,81 L.Ed. 685, and has used state law to allowa

general admiralty action for damages to survive, Just

v. Chambers, 1941, 312 U.S. 383, 61 S.Ct. 687, 85 L.Ed.

903. This Circuit has applied federal common law to

allow an action for injury caused by unseaworthiness

to survive the plaintiff's death despite the fact that the

suit would not have survived under Article 2315 of the

Louisiana Civil Code. Roberson v. N. V. Stoomvaart

Maatschappij, 5 Cir. 1975, 507 F.2d 994.

The willingness of the federal courts to permit

federal actions to survive where statutory guidance

on the matter is lacking has not been limited to ad-

miralty suits. Private anti-trust actions have been

held to survive both the death of the plaintiff, Barnes

Coal Corp. v. Retail Coal Merchants’ Ass'n, 4 Cir. 1942,

128 F.2d 645, and the death of the defendant, Rogers v.

Douglas Tobacco Board of Trade, 5 Cir. 1957, 244 F.2d

471; and it has been held under the FELA that the death

of a deceased railroad worker's father did not cause the

father’s survival action for his son’s injuries under 45

U.S.C. § 59 to abate, even though the father was the

only available person for whose benefit a survival ac-

tion could be maintained under the terms of 45 U.S.C.

§ 59. Dellaripa v. New York, New Haven & Hartford R.

Co., 2 Cir. 1958, 257 F.2d 733.

The appellants point out that other federal statutes

specifically providing for the survival of actions —

the FELA, 45 U.S.C. § 59, the Jones Act, 46 U.S.C. § 688,

and the Longshoremen’s and Harbor Workers’ Com-

pensation Act [LHWCA] 33 U.S.C. § 908 — limit the

class of beneficiaries that can bring the action to those

bearing some close blood or familial relationship to

the deceased.® This fact, however, does not require us

to reach a similar result here for two reasons. First,

and most obviously, the limitations put on the sur-

vival of actions under those statutes were placed there

by Congress; no such constraints confine the grant-

ing of relief under § 1983. Brazier v. Cherry, at 403-404.

Second, those statutes are strictly compensatory in

nature; the civil rights statutes, on the other hand,

were designed to serve both dete; rent as well as com-

8 The FELA, 45 U.S.C. § 59, permits survival of the decedent's

wrongful injury action for the benefit of the surviving widow and

children, parents, and next of kin dependent on the decedent. The

Jones Act, 46 U.S.C. § 688, incorporates the FELA provision by ref-

erence. The Longshoremen's and Harbor Workers’ Compensation

Act, 33 U.S.C. § provides that in the event of the death of an

employee receiving compensation for permanent partial disabili-

ty. the total unpaid amount of the award is payable to the sur-

viving widow, child, and dependent grandchildren, brothers,

sisters, and other persons who satisfy the definition of the term

dependent in 26 U.S.C. § 152.

27

pensatory purposes. This difference in underlying

policy is evidenced by the fact that while punitive

damages are available under § 1983 even absent a

showing of special or actual damages, Basista v. Weir,

3 Cir. 1965, 340 F.2d 74, punitive damages are not

available under the terms of the LHWCA, 33 U.S.C.

§ 908, or under the FELA, 45 U.S.C. § 59, Kozar v.

Chesapeake and Ohio Railway Co., 6 Cir. 1971, 449 F.2d

1238, and there is some question as to whether and

when they are available under the Jones Act, 46 U.S.C.

§ 688. See Phillip v. United States Lines Co., 3 Cir. 1966,

355 F.2d 25, Mpiliris v. Hellenic Lines, Ltd., 1970, S.D.

Tex., 323 F.Supp. 865, aff’d 5 Cir. 1971, 440 F.2d 1163.

In civil rights cases, the federal courts have follow-

ed the trend towards allowing federal causes of action

to survive. Under § 1988, state survival statutes have

primarily been considered when their effect on the

plaintiff's case was beneficial, allowing the action to

survive either the death of the injured plaintiff, Hall v.

Wooten, 6 Cir. 1974, 506 F.2d 564; Brazier v. Cherry, 5

Cir. 1961, 293 F.2d 401; Javits v. Stevens, 1974,S.D.N.Y..,

382 F.Supp. 131; Perkins v. Salafia, 1972, D.Conn., 338

F.Supp. 1325, or the death of the defendant wrongdoer,

Pritchard v. Smith, 8 Cir. 1961, 289 F.2d 153. However,

as the district court correctly pointed out:

“The Seventh Circuit, in commenting upon

Brazier v. Cherry, supra, noted that the result

allowing survival of the cause of action had a

firm basis in federal law and policy quite

apart from any reference to § 1988. The Court

of Appeals pointed out that ‘[wJhile many of

the comments contained in these cases

concerning the nature of Section 1988 are well

considered, the decisions do not necessarily

depend upon that statute’. Baker v. F & F In-

vestment, 420 F 2d 1191, 1196 n. 7 (7th Cir.

1970). [cert denied, 1970, 400 U.S. 821, 91 S.Ct.

40, 27 L.Ed.2d 49]”

391 F.Supp. at 1366. The Sixth Circuit’s recent decision

and reasoning in Hall v. Wooten is consistent with the

Seventh Circuit’s observations about § 1983 survival

decisions in Baker. In Hall the court held “that under

federal common law, actions for personal injury...

survive’. 506 F.2d at 569. Because, however, the court

went on to “adopt as federal common law, the law of

Kentucky, the forum state, which provides for the sur-

vival of actions for personal injury”, 506 F.2d at 569, it

is unclear whether the court was relying upon § 1988's

directive to look to consistent state law, orcreating an

independent federal common law rule of survival for

§ 1983 actions.

The formulation of such a rule was not essential to

allowing the plaintiff's action in Hall to survive and

permitting a full vindication of his civil rights. It is

crucial here. We therefore hold that as a matter of

federal common law, a § 1983 action instituted by a

plaintiff prior to his death survives in favor of his es-

tate.

29

APPENDIX B

United States Court of Appeals

For the Fifth Circuit

No. 75-2019

D. C. Docket No. CA-70-466 “B”

CLAY L. SHAW,

Plaintiff-Appellee,

versus

JIM GARRISON, ET AL..,

Defendants-Appellants.

Appeal from the United States District Court for the

Eastern District of Louisiana

Before WISDOM and INGRAHAM, Circuit Judges,

and GROOMS,’ District Judge.

JUDGMENT

This cause came on to be heard on the transcript of

the record from the United States District Court for the

Eastern District of Louisiana, and was argued by

counsel;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment

* Senior District Judge for the Northern District of Alabama, sit-

ting by designation.

30

of the said District Court in this cause be, and the same

is hereby, affirmed;

It is further ordered that defendants-appellants pay

to plaintiff-appellee, the costs on appeal to be taxed by

the Clerk of this Court.

January 24, 1977

Issued as Mandate:

APPENDIX C

United States Court of Appeals

Fifth Circuit — Office of the Clerk

June 20, 1977

TO ALL PARTIES LISTED BELOW:

No. 75-2019 — Clay L. Shaw v. Jim Garrison, Et Al.

Dear Counsel:

This is to advise that an order has this day been

entered denying the petition for rehearing, and no

member of the panel nor Judge in regular active ser-

vice on the Court having requested that the Court be

polled on rehearing en banc (Rule 35, Federal Rules of

Appellate Procedure; Local Fifth Circuit Rule 12) the

petition for rehearing en banc has also been denied.”

* on behalf of Willard E. Robertson, Et Al.

31

See Rule 41, Federal Rules of Appellate Procedure for

issuance and stay of the mandate.

Very truly yours,

EDWARD W. WADSWORTH,

Clerk

/s/ BRENDA M. HAUCK

Deputy Clerk

cc: Messrs. Malcolm W. Monroe

Michael L. Goldblatt

Mr. Peter J. Butler

Mr. Jim Garrison

Mr. Joseph M. Rault. Jr.

Mr. F. Irvin Dymond

Mr. Edward F. Wegmann

Messrs. William J. Wegmann

‘Salvatore Panzeca

32

APPENDIX D

Clay L. SHAW

v.

Jim GARRISON et al.

Civ. A. No. 70-466.

United States District Tourt,

E. D. Louisiana.

March 4, 1975.

HEEBE, Chief Judge:

We write today yet another chapter in what is un-

doubtedly one of the most bizarre episodes in

American political and legal history. The matter

before this Court arises out of the well publicized in-

vestigation conducted by then District Attorney of

Orleans Parish, Jim Garrison, concerning the

assassination of President John F. Kennedy on

November 22, 19€3.

The instant case is a civil action for damages

brought by plaintiff Clay L. Shaw against Garrison

and others with whom he allegedly conspired to

deprive plaintiff of his civil rights by prosecuting him

in bad faith for conspiracy to assassinate President

Kennedy and for perjury charges growing out of the

original prosecution. The complaint was filed in

February 1970 and alleges causes of action under the

33

federal civil rights statutes, 42 U.S.C. §§ 1983,! 1985,

1986.3 The Court’s jurisdiction is invoked pursuant to

1 42 U.S.C. § 1983:

“Every person who, under color of any statute, ordinance, regula-

tion, custom, or usage, of any State or Territory, subjects, or

causes to be subjected, any citizen of the United States or other per-

son within the jurisdiction thereof tothe deprivation of any rights,

privileges, or immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at law, suit in equi-

ty, or other proper proceeding for redress.”

2 42 U.S.C. § 1985 provides in pertinent part:

“(2) If two or more persons in any State or Territory conspire to

deter, by force, intimidation, or threat, any party or witness in any

court of the United States from attending such court, or from

testifying to any matter pending therein, freely, fully, and

truthfully, or to injure such party or witness in his person or

property on account of his having so attended or testified, or to in-

fluence the verdict, presentment, or indictment of any grand or

petit juror in any such court, or to injure such juror in his person or

property on account of any verdict, presentment, or indictment

lawfully assented to by him, or of his being or having been such

juror; or if two or more persons conspire for the purpose of im-

peding, hindering, obstructing, or defeating, in any manner, the

due course of justice in any State or Territory, with intent to deny

to any citizen the equal protection of the laws, or to injure him or

his property for lawfully enforcing, or attempting to enforce, the

right of any person, or class of persons, to the equal protection of

the laws;

“(3) If two or more persons in any State or Territory conspire or

go in disguise on the highway or on the premises of another, for the

purpose of depriving, either directly or indirectly, any person or

class of persons of the equal protection of the laws, or of equal

privileges and immunities under the laws; or for the purpose of

preventing or hindering the constituted authorities of any State or

Territory from giving or securing to all persons within such State

or Territory the equal protection of the laws;. . . in any case of con-

spiracy set forth in this section, if one or more persons engaged

therein do, or cause to be done, any act in furtherance of the object

of such conspiracy, whereby another is injured in his person or

property, or deprived of having and exercising any right or

privilege of a citizen of the United States, the party so injured or

deprived may have an action for the recovery of damages, oc-

casioned by such injury or deprivation, against any one or more of

the conspirators.”

3 42 U.S.C. § 1986:

“Every person who, having knowledge that any of the wrongs con-

spired to be done, and mentioned in section 1985 of this title, are

about to be committed, and having power to prevent or aid in

34

28 U.S.C. § 1343, the jurisdictional counterpart of the

civil rights statutes, and 28 U.S.C. § 1331.

In the more than five years from the date of filing of

the complaint to the present, this case has yet to go to

trial. Substantial discovery has been conducted and

answers to interrogatories have been filed by plaintiff

as well as four of the six defendants. Trial had been set

for November 4, 1974.

On August 15, 1974, Clay Shaw died. He was sur-

vived by neither spouse, children, parents, nor

siblings. On October 3, 1974, the Court granted the mo-

tion of Edward F. Wegmann, Executor of Shaw’s last

will, to be substituted as plaintiff in place of Shaw,

pursuant to Rule 25(a) of the Federal Rules of Civil

Procedure. Defendants Rault, Shilstone, Robertson,

and Fatter have now brought two motions before the

Court: (1) a motion to dismiss for abatement of the

claim upon Shaw’s death; and (2) a motion to dismiss

the cause of action under 42 U.S.C. §§ 1985 and 198¢ for

failure to state a claim upon which relief can be

granted.

All parties initially directed their arguments on the

abatement issue solely to the proper disposition re-

quired under state law. The Court requested additional

briefs, which the parties have filed, addressed to the

question of whether this Court can, and should, apply

a federal common law of survival in civil rights ac-

tions, and deferred decision on both motions pending

receipt of those briefs. We conclude that the matter

would abate under the state law of Louisiana.

However, for reasons discussed below the Court finds

that it is not bound by state law. After considering the

35

purposes u’iderlying the federal civil rights statutes,

the development of the laws of survival and abatement

in the federal courts and the fifty states, and the

necessity in cases such as this to fully effectuate the

broad remedial goals of these federal statutes, it is the

conclusion of this Court that federal common law re-

quires that this pending action survive in favor of the

executor of decedent’s last will. Finally, we agree with

the defendants that the plaintiff has not stated a cause

of action under 42 U.S.C. §§ 1985 and 1986, and we grant

their motion to dismiss as to those claims.‘

I. The Allegations of the Complaint

For purposes of determining a motion to dismiss, all

the allegations of the complaint must be taken as true.

These allegations are substantially the same as the

facts found and set out at length in a related case, Shaw

v. Garrison, 328 F.Supp. 390 (E.D.La. 1971), aff'd 467

preventing the commission of the same, neglects or refuses so to

do, if such wrongful act be committed, shall be liable to the party

injured, or his legal representatives, for all damages caused by

such wrongful act, which such person by reasonable diligence

could have prevented; and such damages may be recovered in an

action on the case; and any number of persons guilty of such

wrongfu! neg)ect or refusal may be joined as defendants in the ac-

tion; and if the death of any party be caused by any such wrongful

act and neglect, the legal representatives of the deceased shall

have such action therefor, and may recover not exceeding $5,000

damages therein, for the benefit of the widow of the deceased, if

there be one, and if there be no widow, then for the benefit of the

next of kin of the deceased. But no action under the provisions of

this section shall be sustained which is not commenced within one

vear after the cause of action has accrued.”

4 The motion to dismiss for failure to state aclaim under 42 U.S.C.

§§ 1985, 1986 brought by defendants Rault, Shilstone, Robertson,

and Fatter has not been joined in by defendants Garrison and

Russo. However, our finding that plaintiff's complaint does not

state a cause of action under these statutes is applicable to the

latter defendants as well.

F.2d 113 (5th Cir. 1972), in which Judge Herbert W.

Christenberry of this court permanently enjoined

Garrison and his employees from further prosecuting

Shaw in a then pending state criminal action for per-

jury. Although both questions before this Court are

clearly framed legal issues dependent on only a few

uncontested facts, we recite plaintiff's allegations in

some detail here in order to give a full understanding

of the background and present posture of the case.

The matter begins, tragically, with the assassina-

tion of President John F. Kennedy in Dallas, Texas, on

November 22, 1963. Lee Harvey Oswald was arrested

and charged with the crime, but he himself was killed

shortly after his arrest. A blue-ribbon panel of dis-

tinguished individuals, headed by then Chief Justice

of the United States Earl Warren, was appointed by

President Lyndon B. Johnson “to ascertain, evaluate

and report upon the facts relating to the assassination

of the late President John F. Kennedy and the subse-

quent violent death of the man charged with the

assassination.” Executive Order No. 11130. The final

report of the Warren Commission, consisting of 26

volumes of evidence, concluded that Lee Harvey Os-

wald was the sole person responsible for the death of

President Kennedy. Specifically, the Commission

found no evidence of any conspiracy to assassinate

President Kennedy.5

5 The repo” stated in part:

“Because of tue difficulty of proving negatives to a certainty, the

possibility of others being involved with either Oswald or Ruby

cannot be established categorically, but if there is any such

evidence it has been beyond the reach of all the investigative agen-

cies and resources of the United States and has not come to the

attention of the Commission.” Report of the President's Commis-

sion on the Assassination of President Kennedy, Conclusion 9

(1964).

37

Plaintiff alleges that during November 1966, defen-

dants entered into a conspiracy among themselves

and with others not named as defendants herein to

misuse the legal machinery of the State of Louisiana

by conducting a fraudulent investigation of the

assassination solely for the personal and political

aggrandizement of the conspirators, particularly

Garrison, Robertson, Rault, and Shilstone. Defen-

dants Robertson, Rault, and Shilstone are connected

with the alleged conspiracy primarily through their

formation of an organization known as “Truth and

Consequences” in the latter part of February 1967,

shortly before plaintiff's arrest. The organization was

formed to provide financial support for Garrison in

the conduct of his investigation. Plaintiff alleges that

the three defendants named above were kept aware of

the progress of Garrison’s investigation and were

continually consulted by him. A sum in excess of

seventy thousand dollars was provided by the Truth

and Consequences organization, substantially all of

which was contributed between the dates of Shaw’s

arrest in March 1967 and his acquittal of the con-

spiracy charges in March 1969. Further, plaintiff

alleges that defendant Robertson provided Garrison

with thi:i, thousand dollars of cash funds for the in-

vestigation and further assisted Garrison by employ-

ing one of the state’s major witnesses, a member of the

Dallas police department, prior to and during the con-

spiracy trial. Portions of the money contributed by

Truth and Consequences were used, plaintiff con-

tends, for the procurement of perjured testimony.

Plaintiff was first interviewed by Garrison's staff on

December 21, 1966, at the District Attorney’s office. He

was summoned to the District Attorney's office again

on March 1, 1967, for further questioning. He was

arrested later that day, and charged with having par-

ticipated in a conspiracy to murder President John F.

Kennedy. Members of the news media had been alerted

to plaintiff's arrest, and when he was led from Gar-

rison’s office, the event was fully reported by the

media. Shaw could have been taken from the District

Attorney’s office through a back exit, without having

to pass before the gathered media. This was one of

numerous incidents alleged by plaintiff which he

contends, proves that the major purpose of the in-

vestigation was publicity for the investigators, not

prosecution of guilty persons.

The main witness against Shaw at the preliminary

hearing was defendant Perry Raymond Russo. Russo

testified that he had been present at a meeting at which

Shaw conspired with Lee Harvey Oswald and one

David W. Ferrie® to assassinate President Kennedy.

This testimony, again according to the allegations of

plaintiff in bis complaint, was procured by the use of

hallucinatory drugs and hypnosis administered by Dr.

Esmond A. Fatter, defendant herein, and the late Dr.

Nicholas Chetta, Coroner of Orleans Parish, acting

under instructions from Garrison. Dr. Fatter placed

Russo in an hypnotic trance on at least two occasions

during which the hypnotic suggestions were made.

In June of 1967, Lieutenant O’Donnell of the New

Orleans Police Department and the Department’s

polygrapher, acting on instructions from Garrison,

attempted to give Russo a lie detector test. The test

6 Ferrie did not testify at the preliminary hearing because he died

on February 20, 1967, just prior to plaintiff's arrest.

was not successful. However, during an interview

later that day, Russo told O’Donnell that he could

not identify Shaw as having been present at the alleg-

ed conspiratorial meeting. Garrison was given a

written report of this interview with Russo, but never

made the report available to plaintiff's counsel.

Trial in the matter began on January 21, 1969, and

ended March 1, 1969. At the trial, Russo was unable to

identify Shaw as one of the alleged conspirators whom

he had previously testified he had heard plotting the

assassination of President Kennedy. Plaintiff alleges

that because of the O’Donnell report and for other

reasons Garrison knew at the time of trial that Russo

could not so identify Shaw. He further alleges that the

other witnesses who testified against Shaw were

equally lacking in credibility and that that fact was

known to Garrison.

The trial lasted forty days. At the conclusion of the

trial, the jury took only fifty-five minutes to return a

unanimous verdict of not guilty.

On Monday, March 3, 1969, the first working day

thereafter, Garrison prepared and signed a bill of in-

formation charging the plaintiff with two counts of

perjury. The basis of the perjury charge was Shaw’s

testimony at trial that he had never seen nor been ac-

quainted with David W. Ferrie or Lee Harvey Oswald.

No other witnesses testifying at Shaw’s trial were

charged with perjury.

As noted above, Judge Christenberry permanently

enjoined defendant Garrison, his agents and

emplovees, from further prosecution of the state per-

40

jury charge against Shaw. The basis for the court’s in-

junction was a finding that the two prosecutions of

Shaw by Garrison were conducted in bad faith. The

court determined that the totality of the circumstances

made the case fall within the narrow exception to the

general rule announced in Younger v. Harris, 401 U.S.

37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), that the federal

courts should not interfere with pending state

criminal prosecutions except for the most compelling

of reasons. Shaw v. Garrison, 328 F.Supp. 390

(E.D.La.1971), aff'd 467 F.2d 113 (5th Cir. 1972).

II. Non-abatement of the Action

A. Deficiency of the Federal Law

Our analysis begins with a consideration of 42

U.S.C. § 1988:

“The jurisdiction in civil and criminal matters

conferred on the district courts by the

provisions of this chapter and Title 18, for the

protection of all persons in the United States

in their civil rights, and for their vindication,

shall be exercised and enforced in conformity

with the laws of the United States, so far as

such laws are suitable to carry the same into

effect; but in all cases where they are not

adapted to the object, or are deficient in the

provisions necessary to furnish suitable

remedies and punish offenses against law, the

common law, as modified and changed by the

constitution and statutes of the State wherein

the court having jurisdiction of such civil or

criminal cause is held, so far as the same is not

41

inconsistent with the Constitution and laws of

the United States, shall be extended to and

govern the said courts in the trial and disposi-

tion of the cause, and, if it is of a criminal

nature, in the infliction of punishment on the

party found guilty.” (emphasis added)

There is no general federal statutory law of survival

governing civil rights actions.’ The initial question

for decision then is whether this lack of survival

makes the federal law “deficient in the provisions

necessary to furnish suitable remedies.”

A brief consideration of the legislative history

behind 42 U.S.C. §§ 1983, 1985 makes clear that its

supporters intended that the predecessor of these

Statutes be construed as broadly as necessary to

remedy evils in response to which it was passed. The

legislative history is more fully set out in Monroe v.

Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). We

refer to only a small portion of that extensive debate.

Sections 1983 and 1985 were originally enacted as

§§ 1, 2 of the Ku Klux Act of April 20, 1871. The act was

passed out of a concern over the widespread lawless

activities of the Ku Klux Klan in the South at that time.

These activities included not only the intimidation of

citizens, but physical violence including murder.®

7 The provisions of 42 U.S.C. § 1986 allow limited damages for the

death of any party caused by failure to prevent certain acts ac-

tionable under § 1985. See n. 3, supra.

8 See. e.g.. the remarks of Representative Lowe of Kansas, Cong.

Globe, 42d Cong. ist Sess., App. 166-167, and Representative Beat-

ty of Ohio, id. at 374, quoted in Monroe v. Pape, supra at 175, 81S.Ct.

473. See also the message sent to Congress by President Grant,

Cong. Globe, 42d Cong., ist Sess., p. 244.

42

In introducing the bill, Representative

Shellabarger, Chairman of the House Select Com-

mittee which drafted the Ku Klux Act, stated:

“This act is remedial, and in aid of the preser-

vation of human liberty and human rights. All

statutes and constitutional provisions

authorizing such statutes are liberally and

beneficially construed.... [T]Jhe largest

latitude consistent with the words employed is

uniformly given in construing such statutes

and constitutional provisions as are meant to

protect and defend and give remedies for their

wrongs to all the people.”®

Later in the debate, Representative Shellabarger

stated:

“It will be remembered that the second section

[now § 1985] gives a civil right of action for in-

jury to person or property, &c; but it gives no

right of action where death occurs. I think that

is a defect in the second section.”’!°

Senator Osborn of Florida commented upon the

proper scope of the law:

“That the State courts in the several States

have been unable to enforce the criminal laws

of their respective States or to suppress the

disorders existing, and in fact that the preser-

vation of life and property in many sections of

9 Cong. Globe, 42d Cong., ist Sess., App. p. 68.

10 Id., p. 805.

43

the country is beyond the power of the State

government, is a sufficient reason why Con-

gress should, so far as they have authority un-

der the Constitution, enact the laws necessary

for the protection of citizens of the United

States.’’!!

Although the bill did not, by its terms, delineate a

comprehensive system of remedies, it was not the in-

tention of Congress to deny those remedies to civil

rights plaintiffs. Born out of the violence of the Ku

Klux Klan activities, the civil rights bill passed by

Congress had as its object the effective protection of

the rights of all persons. Whatever remedies would

give substance to these rights were to »e applied.

The courts, in considering the legislative history,

have concluded that the failure to provide for survival

in the federal civil rights laws is a deficiency in those

provisions. The most thorough discussion of the

matter is contained in the opinion of the Court of

Appeals for the Fifth Circuit in Brazier v. Cherry, 293

F.2d 401 (5th Cir. 1961). That case involved a suit filed

under the federal civil rights laws, 42 U.S.C. § 1981 et

seq.. by the surviving widow, individually and as ad-

ministratrix of decedent’s estate, against various

Georgia police officers, for the allegedly illegal arrest

and beating of decedent, which resulted in his death.

No suit had been instituted prior to the death of dece-

dent. The Court of Appeals held that since federal law

was deficient for failure to provide for survival,

Georgia state law, which provided for both survival of

the decedent's cause of action and fora wrongful death

11 Id., p. 653, quoted in Monroe v. Pape, supra at 176, 81 S.Ct. at

478.

44

action, was to be applied in the federal suit to allow the

maintenance of those actions.

The Court of Appeals first rejected defendants’ con-

tention that the civil rights statutes, by their

language, reflect a purpose that actions under that

statute shall not survive. Since § 1983 provides that

the violator “shall be liable to the party injured”

(emphasis added) and § 1985(3) affords a right of ac-

tion to the “party so injured or deprived,” the claim

was made that Congress purposefully extended the

right to file a civil suit for damages only to the person

whose civil rights were violated. In rejecting this con-

tention, the court found a “clear congressional policy

to protect the life of the living from the hazard of death

caused by unconstitutional deprivations of civil

rights... .” Brazier v. Cherry, supra at 405. It went on

to state the purposes of the civil rights statutes con-

cerning survival:

“{I]t defies history to conclude that Congress

purposely meant to assure to the living

freedom from such unconstitutional

deprivations, but that, with like precision, it

means to withdraw the protection of civil

rights statutes against the perii of death. The

policy of the law and the legislative aim was

certainly to protect the security of life and

limb as well as property against these actions.

Violent injury that would kill was not less

prohibited than violence which would crip-

ple.”’ (footnote omitted) Id. at 404.12

12 The death involved in Brazier allegedly was a direct result of

the actions of the defendants. In the present case it is not alleged

nor has the substituted plaintiff asserted that Clay Shaw's death

45

The Brazier court concluded that “[o]n our analysis

federal law is not suitable, i. e., sufficient, since it

leaves a gap for death in a substantive policy making

no distinction beween violent injury and violent

death.” Id. at 408.

Every court that has considered the matter has

found, either explicitly or by implication, that the lack

of survival provisions in the federal civil rights laws

is such a deficiency. E.g., Brazier v. Cherry, supra;

Pritchard v. Smith, 289 F.2d 153 (8th Cir. 1961); Evain v.

Conlisk, 364 F.Supp. 1188 (N.D.I11. 1973), aff'd without

opinion 498 F.2d 1403 (7th Cir. 1974); Holmes v. Silver

Cross Hospital of Joliet, Illinois, 340 F. Supp. 125

(N.D.I11.1972); Ambrose v. Wheatley, 321 F.Supp. 1220

(D.Del. 1971); Johnson v. Wilkinson, 315 F.Supp. 773

(W.D.Mo.1970); Salazar v. Dowd, 256 F.Supp. 220

(D.Colo.1966); Galindo v. Brownell, 255 F.Supp. 930

(S.D.Cal.1966). This finding is a prerequisite to the

application of state law, for only where the federal

laws are deficient may a court look elsewhere to

remedy the deficiency. Thus, even those courts which

have concluded after considering the applicable state

law that such law does not provide for survival of a

particular action, e.g., Evain v. Conlisk, supra, must

necessarily have first found federal law to be deficient

in not providing for survival.

occurred from causes related to the actions of the defendants

herein. We find that this distinction does not warrant any different

result from that in Brazier. None of the state statutes which

provide for survival of causes of action make any distinction

between deaths caused by defendants and those which are not. See

statutes compiled at n. 18, infra. The same is true of several federal

statutes, e.g., the Federal Employers’ Liability Act, 45 U.S.C. § 59,

and the Jones Act, 46 U.S.C. § 688, incorporating the provisions of

the FELA by reference. But see the Longshoremen’s and Harbor

Workers’ Compensation Aci, 33 U.S.C. § 909.

46

Having concluded that a deficiency exists, we look

first to the state law of Louisiana to furnish a suitable

remedy.

B. State Law

We are called upon to determine whether Louisiana

law provides that a pending action for damages for

violation of plaintiff's civil rights survives the death

of the plaintiff in favor of the administrator of his es-

tate. We emphasize at the outset that we are not con-

cerned with wrongful death actions for damages to

others caused by the tort victim's death. Also to be dis-

tinguished are survival of causes of action, where the

tort victim dies without bringing suit, and the ques-

tion is whether a party may institute suit to recover for

the tort victim’s own damages. In the case at bar, Clay

Shaw had already brought suit against the defendants

more than four years prior to his death. The question

before us is technically one of abatement vel non of a

pending action.

Article 428 of the Louisiana Code of Civil Procedure

(C.C.P.) provides:

“An action does not abate on the death of a par-

ty. The only exception to this rule is an action

to enforce a right or obligation which is strict-

ly personal.”

If this were the only relevant provision, then the

decision would be easy. It would turn simply on

whether this civil rights action is an action to enforce

a right or obligation which is strictly personal.

However, two other provisions of the Louisiana codes

47

complicate the matter considerably. Article 2315 of the

Louisiana Civil Code’3 and Article 801 of the Code of

Civil Procedure‘ define the proper beneficiaries to in-

herit the action and both articles contemplate separate

requirements for survival depending on the nature of

the damages suffered: if the suit is one for damages to

property, substitution by the succession represen-

tative is proper; if the suit is one for any other kind of

damages, only the certain named classes of

beneficiaries may be substituted.

13 Louisiana Civil Code art. 2315:

“Every act whatever of man that causes damage to another obliges

him by whose fault it happened to repair it.

“The right to recover damages to property caused by an offense or

quasi offense is a property right which, on the death of the obligee,

is inherited by his legal, instituted, or irregular heirs, subject to

the community rights of the surviving spouse.

“The right to recover all other damages caused by an offense or

quasi offense, if the injured person dies, shall survive for a period

of one year from the death of the deceased in favor of: (1) the sur-

viving spouse and child or children of the deceased, or either such

spouse or such child or children; (2) the surviving father and

mother of the deceased, or either of them, if he left no spouse or

child surviving; and (3) the surviving brothers and sisters of the

deceased, or any of them, if he left no spouse, child, or parent sur-

viving. The survivors in whose favor this right of action survives

may also recover the damages which they sustained through the

wrongful death of the deceased. A right to recover damages under

the provisions of this paragraph is a property right which, on the

death of the survivor in whose favor the right of action survived, is

inherited by his legal, instituted, or irregular heirs, whether suit

has been instituted thereon by the survivor or not.

“As used in this article, the words ‘child’, ‘brother’, ‘sister,’ ‘father’,

and ‘mother’ include a child, brother, sister, father, and mother, by

adoption, respectively.”

14 C.C.P. art. 801:

“When a party dies during the pendency of an action which is not

extinguished by his death, his legal successor may have himself

substituted for the deceased party, on ex parte written motion sup-

ported by proof of his quality.

“As used in Articles 801 through 804, ‘legal successor’ means:

“(1) The survivors designated in Article 2315 of the Civil Code, if

the action survives in their favor; and

(2) Otherwise, it means the succession representative .. . or the

heirs and legatees of the deceased.”

48

Seeking to avoid the strictures of the latter, Shaw’s

executor contends that his suit is, at least in part, one

to recover damages to property. He asserts that

Shaw’s estate was deprived of income which Shaw

could have earned had he not been preoccupied with

defending the criminal charges against him; that he

had to pay attorneys’ fees and investigative expenses;

that he could not attend to his real property because of

the demands on his time, and its value thus lessened,

and in sum that, “it is his estate, which his testamen-

tary executor represents, that suffered great property

damage.” (Plaintiff's brief, p. 7).

These assertions hardly need be taken seriously.

They amount to no more than the incidental hardships

common to any litigation. If these damages allegedly

suffered represent damages to property, then any suit

filed may be twisted in the same way to fit within this

pigeonhole. The crux of this civil rights action is for

damages arising out of personal injuries. It bears not

the slightest resemblance to a suit which seeks to

recover damages to real or personal property.

The more serious question is whether the

provisions of Article 2315 limiting survival to only

named classes of beneficiaries in cases of non-

property damage apply to pending actions as well as

actions not yet instituted. The leading case on the sub-

ject is J. Wilton Jones Co. v. Liberty Mutual Ins. Co.,

248 So.2d 878 (La.App.1971), writ den., 259 La. 61, 249

So.2d 202 (1971), decided by a divided court on rehear-

ing en banc.

The case involved a suit for damages for personal

injuries sustained in an automobile accident. One of

49

the two original plaintiffs died some eighteen months

after suit had been filed, but prior to trial. Within one

year’s time from plaintiff's death, his widow filed a

petition as “administratrix of decedent’s succession”

claiming that, as administratrix, she was entitled to be

substituted in the action, and she prayed for judgment

in favor of the estate. Subsequently, more than one

year after her husband's death, she filed a second peti-

tion seeking both survival and wrongful death

benefits in her own behalf.'5 The time periods involved

are important because Art. 2315 provides that the

right to recover in favor of the named classes of

beneficiaries survives only for a period of one year

from the death of the deceased. If the time restrictions

applied to instituted actions and the administratrix

was not a proper party to sue, the widow would not

recover because her substitution in the action as

widow occurred after the one-year period had run.

Faced with this problem, the court found a “radical

difference” between an action not yet instituted and

the substitution of parties in an instituted action. Id.

248 So.2d at 891. The court held that only an action not

yet instituted is subject to the time requirements of

Art. 2315. Once an action has been instituted either by

the victim or by survivors and it does not abate under

Art. 428, the timeliness of substitution is governed

only by the five-year inaction abandonment rule of

C.C.P. art. 561.16 Thus, in the Jones case, substitution

was timely and the action survived.

15 The wrongful death claim was subsequently withdrawn.

16 Article 561 states in pertinent part:

“An action is abandoned when the parties fail to take any steps in

its prosecution or defense in the trial court for a period of five

years.”

50

One might reasonably expect that this distinction

between instituted actions and not-yet-instituted

causes of action would be applied in determining the

proper pa’‘ies for substitution, as well as the

timeliness of substitution. Bui that is not the holding

of Jones.

After reviewing the statutory history of Article 2315

and related provisions, the court concluded, at 891:

“As long as art. 2315 spoke of the ‘right of this

action’ surviving in favor of designated

beneficiaries, it might have been concluded

that an instituted action was not governed by a

provision dealing with a right of action (or

right to institute the action). See Gabriel] v.

United Theatres, La.App. 1951, 50 So.2d 514

(reversed, 221 La. 219, 59 So.2d 127).

“Today art. 2315 provides, instead, that the

‘right to recover’ survives in favor of the

designated beneficiaries.

“In our opinion the present language provides

(at least if designated beneficiaries do sur-

vive) for the devolution of the victim’s claim,

even where he has instituted an action, to the

survivors designated by art. 2315. The ‘right to

recover belongs to them, and not to the

succession of the victim nor to his heirs as

such.” (emphasis in original)

The emphasis which the court gives to this statutory

change is somewhat questionable, since the statute

still twice refers to the “right of action” in addition to

its references to the “right to recover.” The original

51

panel decision took note of this fact and reasoned that

since “right of action” does not refer to instituted ac-

tions, Art. 2315 in its entirety governs only the sur-

vival of causes of action where suit had not been filed

prior to decedent's death. Where suit had already been

filed, the inheritance of the action is governed by the

provisions of C.C.P. arts. 421 and 426, and the succes-

sion articles of the Civil Code. Thus, the panel con-

cluded, the restrictions concerning in whose favor the

right to recover survives do not apply to an already in-

stituted action.

The en banc court clearly rejecied this line of argu-

ment, although without fully enunciating their

reasons for doing so. The only member of the en banc

court still adhering to the panel’s initial opinion was

Judge LeSueur, the author of that opinion. The

prevailing opinion of the en banc court rejected the

panel's conclusion as did the other concurring judge.

Moreover, the four remaining judges, while dissent-

ing from the result of the majority concerning

timeliness of the widow’s substitution, each held that

the right to recover damages for injuries toa deceased

plaintiff is limited to the Art. 2315 beneficiaries,

whether suit had been instituted prior to decedent's

death or not.

The case was cited with apparent approval by the

Louisiana Supreme Court in Austrum v. City of Baton

Rouge. 282 So.2d 434, 439 (La.1973). See also McBeth v.

United Press International, Inc., 505 F.2d 959 (5th Cir.,

1974).

We have discussed the reasoning of the court in

Jones v. Liberty Mutual Ins. Co., supra, in some detail

only to show that the question of the applicability of

Art. 2315 to instituted actions was squarely con-

sidered and decided by the state appellate court.

Whether the failure of that court to draw a distinction

between pending actions and causes of action not yet

instituted for purposes of substitution of parties is

sound is of no concern to this Court. Although we are

determining state law pursuant to 42 U.S.C. § 1988 and

not sitting as an Erie court, the teaching of Erie R. R. v.

Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938),

applies equally well here. In interpreting state law, we

are bound by the construction put on it by the state

courts, whether we agree with the reasoning upon

which that construction is based or not. See Delta Air

Lines v. McDonnell Douglas Corp., 503 F.2d 239 (5th

Cir., 1974). An analysis of Jones v. Liberty Mutual Ins.

Co., supra, makes clear that under state law pending

actions for non-property damages do not survive in

favor of decedent’s personal representative. With that,

our responsibility for determining state law ends.

C. Inconsistency of State Law with Federal Law

Under § 1988, a federal court must not apply state

law if it is “inconsistent with the Constitution and

laws of the United States.” Surely, if Louisiana law did

not provide for survival of any tort actions, this Court

would have no difficulty in holding that the state law

was inconsistent with § 1983 because the state law

directly contravened the policy of the civil rights

laws, which, as discussed above, favors survival.

However, in actions such as this for other than proper-

ty damage, Louisiana law allows survival in favor of

certain classes of close relatives; it does not provide

for survival of this particular action because Clay

53

Shaw was not survived by any member of these

classes. We find this policy of limiting the classes of

persons in favor of whom an action survives equally

inconsistent with the federal civil rights laws.

We distinguish at the outset the creation of actions

for wrongful death. These are actions for damages suf-

fered by the beneficiary for loss of love and affection of

the deceased. As such, they logically must be limited

to certain close relatives of the deceased. Thus, under

the Federal Employers’ Liability Act, 45 U.S.C. § 51,

and the Jones Act, 46 U.S.C. § 688, which incorporates

the former provisions by reference, wrongful death

actions are created for the benefit of the surviving

widow and children, parents and next of kin dependent

on the employee; under the Death on the High Seas

Act, 46 U.S.C. § 761, for the benefit of the decedent’s

wife, husband, parent, child, or dependent relative;

and under the Longshoremen’s and Harbor Workers’

Compensation Act, 33 U.S.C. § 901 et seq., “death

benefits” in favor of surviving widow, child, and

dependent grandchildren, siblings and certain other

dependent persons. State statutes follow a similar

pattern. See also Moragne v. States Marine Lines, 398

U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970).

Where the question is one of survival, however,

there is no corresponding need to limit the classes of

beneficiaries because the measure of damages are

those suffered by the deceased. This is the position

taken by all of the 49 other states. While the state laws

54

differ as to what types of causes of action survive.!7

they are unanimous in providing that those actions

which do not abate survive in favor of and against the

personal representatives of the deceased.18

17

ae gee ” the go statutes provide for survival of all causes of

enane — — Ann . § 27-901 (repl.ed.1962), Fla.Stat.Ann.

Mich.Ann.Stat. 'j a7 A Beet (revise MC ‘A § 8008 i cee

a, bro we 7 of cases — e.g. causes of action pag

on ee a prosecution — from a general rule favoring

ps of . -Rev.Stat.Ann. § 14-3110 (Spec. Pamphlet 1974):

Colo Rev Stat. Ann. § 153-1-9 (1963); Del.Code Ann. tit. 10 § 3701

— a a ae Ann. § 2311:21 (Baldwin 1971).

thet sco 8 action had been brow ght as one for malicious

a ae a : State court in a state w},.ch had the latter type of

pone , mk on would abate. We do not find it necessary to

batiove | that Gao ae “J of ? ‘i gt been rly

re of a civil i i

a ~ a State court is not relevant for cenmenee > earmele

— rem law of survival. The fact of the matter is that this

" for siete A on for libel, slander, or malicious prosecution, but

on for violation of plaintiff's civil rights. We have

18 Ala.Code Ann. tit. 7, § 150 (1960); Alas 09.55.

' ° - : Stat.Ann. 55.

ow & Se Aa. § 14-3110 (Spec. wk ay 197),

jar ColaRot sacle p asses: (eae coerce

§ 50-600 (1000 ys . 4 = a onn.Gen.Stat.Ann.

: Ann. . 1 (1953); Fla.Stat.A

§ 46.021 (1969); Ga.Code Ann. § 3-505 A tat.

: . 1962); Hawaii Rev Stat.

§ m3 Gees: Idaho Code Ann. § 5-327 (Supp.1974); Ill.Ann.Stat

Burne’ ind.Ann.Stat § 3-408 trogh. c fegy oe Hurd 1968)

. repl. ; lowa

a8 811.20, 611.22 (1080) Kan Stet. Ann §§ 600s eta Ag 60.

° 967); -Rev.Stat.Ann. 411.140 (1 ;

Me Rev Stat Ann. tit. 18, $3 2501 (Supp. 1974); Sie beetiate ory

- Ann. . 4 (1974); Mich.Stat.A

27A.2921, 27A.5852 (rev.1962), M.C.L.A. §§ 600 52:

‘ . MLC, , 921, 600.5852:

Minn Stat Ann . §§ 525.43 (1969), 573.01-573.02 (Supp.1974); Miss.

Cote § 91-7-233 (1972); Mo.Ann.Stat. §§ 537.020 (Supp.1974),

ie Berg Mont.Rev.Code Ann. §93-2824 (repl.ed.1964);

-Mev.Stat.Ann. §§ 25-1401, 25-1402, 25-1410 (reissue 1964);

55

The need to provide for survival of federal civil

rights actions is particularly acute in cases, such as

the one before the Court, in which plaintiff seeks

redress for injuries to his character. Because of defen-

dant Garrison’s alleged misuse of his office, Shaw was

forced to defend himself for a period of almost five

years against a charge that he conspired to

assassinate the President of the United States. It may

be that, at trial, plaintiff will not be able to carry his

burden of proving the facts to support his allegations.

However, Shaw surely deserves an opportunity to

have his day in court and attempt to clear his name, if

only posthumously. Since Louisiana law would deny

him this opportunity, we hold that it is inconsistent

with federal law and should not be applied.

D. Federal Common Law

The results reached so far leave the Court with a

dilemma: on the one hand, we have determined that the

federal civil rights laws are deficient in their remedies

because they make no provision for survival of causes

of action; on the other hand, the applicable survival

ev.Rev.Stat. § 41.100 (1965); N.H.Rev.Stat.Ann. § 556:9-556:15

(1988): oath Ace. §§ 2A:15-3 (Supp.1974), 2A:15-4 (1952);

N.M.Stat.Ann. §§ 21-7-4, 21-7-10 (repl.ed. 1970); N.Y.E.P.T.L. § 11-3.2

(McKinney Consol. Laws, c. 17-b, 1967); N.C.Gen 1 Stat. Ann. §§ 28-

172, 28-175 (repl.ed.1966); N.D.Cent. Code Ann. § 28-01-26.1,

R.Civ.P. 25(A) (repl.ed.1974); Ohio Rev. Code Ann. § 2311.21

(Baldwin 1961), R.Civ.P. 25(A) (Baldwin rep]. 1972); Okla.Stat.Ann.

tit. 12, §§ 1052, 1082 (Supp.1974); Ore.Rev.Stat. § 30.075 (1971);

Pa.Stat.Ann. tit. 20, §§ 3371, 3373 (Spec.Pamphlet 1972); R.I.Gen'l

Laws Ann. §§ 9-1-6, 9-1-7 (reenactment 1969); S.C.Code Ann.

8§ 10.209, 10-217 (1962); S.D.Code § 33.0414-1 (Supp. 1960);

Tenn.Code Ann. §§ 20-602, 20-605 (1955); Utah Code Ann. § 78-11-12

(Supp.1973); Vt.Stat.Ann. tit. 14, §§ 1451-1452 (repl.ed.1974);

Va.Code Ann. §§ 8-146 (repl.ed. 1958), 8-628.1, Rule 2:16 (Supp.1974);

W.Va.Code Ann. § 55-7-8a (1966); Wisc.Stat.Ann. §§ 269.13 (1957),

287.01 (Supp.1974), 895.01 (1966); Wyo.Stat.Ann. §§ 1-26 to 1-28

(1957).

56

law of Louisiana, the only law which this Court is

directed to apply pursuant to 42 U.S.C. § 1988, does not

fully compensate for that deficiency. We must thus

further consider whether this pending action survives

in favor of decedent’s personal representative as a

matter of federal common law. The question is one of

first impression in this Circuit.

Defendants claim that the court has no power to

create such a federal common law: § 1988 directs the

court to apply federal statutory law and if it is

deficient, the court must apply state law currently in

effect, if not inconsistent with the federal law. Since

neither law provides for survival of the action in this

instance, and since it is clear that at old common law

any action for personal injury does not survive the

death of the injured party, they contend that the action

must abate. This contention is not without some sup-

port in the case law and in the language of § 1988 itself.

However, after a careful consideration of the matter,

the Court concludes that this result was not intended

by Congress, is not commanded by the holding of any

case binding on us, and, most importantly, is contrary

to the broad remedial purposes underlying the federal

civil rights laws.

Defendants point to language in Brazier v. Cherry,

supra, which they contend, indicates that state law ex-

clusively is to be used in determining survival. The

Court of Appeals stated:

“Since the federal statutory framework is, in

the words of the statute, ‘deficient in the

provisions necessary to furnish suitable

remedies and punish offenses against’ that

57

law and policy, the state law is to be used to the

extent that it is currently available to over-

come these deficiencies.” Id. 293 F.2d at 408.

Moreover, in summarizing the “simple, direct, ab-

breviated test” set out in § 1988, the Fifth Circuit stated

that the court first looks to “(a) federal law and if it is

found wanting the court must look to (b) state law

currently in effect.” Id. at 409.

We do not find such language dispositive of the

question before us. It is undeniable that federal courts

are directed by § 1988 to look to state law to provide

relief where the federal statute is deficient. But § 1988

nowhere states that the federal court is bound by an in-

hospitable state law. If anything, the opinion in

Brazier v. Cherry, supra, supports the opposite con-

clusion. The entire thrust of the court’s opinion is

toward finding a means to provide effective remedies.

The court states:

“From a federal standpoint the only limitation

upon the use of such adoptive state legisla-

tion, rule or decision is that it is suitable to

carry the [federal ]law into effect because other

available direct federal legislation is not

adapted to that object or is deficient in fur-

nishing a fully effective redress. Thus § 1988

declares a simple, direct, abbreviated test:

what is needed in the particular case under

scrutiny to make the civil rights statutes fully

effective?” Id. (emphasis added)

Here, we have found § 1988 to be inapplicable

because the state law is not “suitable to carry the

[federal] law into effect.” Under the terms of the

statute, the state law is “inconsistent with. . .the laws

of the United States” because such law does not

provide for survival necessitated by the policies

behind the civil rights statutes, and thus need not be

applied.

The Seventh Circuit, incommenting upon Brazier v.

Cherry, supra, noted that the result allowing survival

of the cause of action had a firm basis in federal law

and policy quite apart from any reference to § 1988.

The Court of Appeals pointed out that “[w]hile many

of the comments contained in these cases concerning

the nature of Section 1988 are well considered, the

decisions do not necessarily depend upon that

statute.” Baker v. F & F Investment, 420 F.2d 1191, 1196

n. 7 (7th Cir. 1970).19

Moreover, at least one other federal court in a civil

rights action has applied a remedial rule directly con-

trary to the state law in effect, where no federal statute

was applicable. In Basista v. Weir, 340 F.2d 74

(3rd Cir. 1965), the state law of Pennsylvania provided

that punitive damages are not recoverable absent a

showing of actual damages. The Court of Appeals

found that it was not bound by the state law and held

that as a matter of federal common law, it is not:

necessary to prove actual damages in order to recover

punitive damages.

19 Baker v. F & F Investment, supra, held that state statutes of

limitation apply to federal civil rights actions. This in no way un-

dercuts our decision today for there is a significant distinction

between statutes of limitation and those restricting survival of

causes of action. Statutes of limitation merely regulate the per-

missible time for filing suit: so long as the applicable period is

clear, a plaintiff can assure himself of filing a timely action.

However, statutes regulating survival may, as the Louisiana

statute would here, entirely bar plaintiffs from ever filing suit.

Thus, the hardship worked by the latter type of statute is much

more severe.

59

The decision of the district court in Evain v. Conlisk,

supra, relied on by defendants, provides scant support

for their position. In Evain, the court noted that I1-

linois law allows survival of a cause of action only in

favor of decedent's estate, and thus held that a

daughter was prohibited from bringing a civil rights

action for the death of her father. That is the precise

opposite of the situation here. Where the state statute

was in conformity with those of the other states and

suit could have been brought by the personal

representative of decedent’s estate, there was no

reason for the federal court to look beyond the state

statute.

In the context of the federal civil rights laws, courts

have been mindful of the need to produce effective

remedies, despite their apparent unavailability under

federal statutes. In Sullivan v. Little Hunting Park,

396 U.S. 229, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969), a suit

was brought under 42 U.S.C. § 1982 for injunctive relief

and monetary damages, by a homeowner who was ex-

pelled from a neighborhood recreational corporation

because he rented a house in the neighborhood to a

black family. The language of § 1982 is declaratory

only, and provides for no damages. The Supreme

Court held that plaintiff was entitled to compensatory

damages under § 1982, finding that ‘the existence of a

statutory right implies the existence of all necessary

and appropriate remedies.” Id. at 239, 90 S.Ct. at 405.

A similarly broad interpretation of the remedies

available under a federal cause of action was an-

nounced in Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90

L.Ed. 939 (1946). Holding that the district court has

jurisdiction over a complaint seeking damages for

60

violation of plaintiff's Fourth and Fifth Amendment

rights, the Supreme Court stated:

“[W]here federally protected rights have been

invaded, it has been the rule from the begin-

ning that courts will be alert to adjust their

remedies so as to grant the necessary relief.

And it is also well settled that where legal

rights have been invaded, and a federal statute

provides for a general right to sue for such in-

vasion, federal courts may use any available

remedy to make good the wrong done.” Id. at

684, 66 S.Ct. at 777 (footnotes omitted)

Furthermore, although the old common law provid-

ed that all actions abate upon the death of the parties,

the unmistakable and inexorable trend in the law is

toward creation of progressively greater rights of sur-

vival, both by statute and by judicial decision. As the

Fifth Circuit noted in Brazier v. Cherry, supra, 293

F.2d at 406: “[a]t every turn the Supreme Court, by

drawing on available state legislation or giving broad

liberal effect to federal statutes has found a way to

make compensation effective despite statutory

language which might have made non-survival

plausible, if not probable, during an earlier era.”’ Much

of this development has occurred in federal maritime

and admiralty law.

In Just v. Chambers, 312 U.S. 383, 61 S.Ct. 687, 85

L.Ed. 903 (1941), the Supreme Court held that a cause of

action in admiralty for damages survived the death of

the tortfeasor. Although no federal statute provided

for survival, and no equivalent of § 1988 existed for ad-

61

miralty claims, the court held that an admiralty court

could call upon the local state law which allowed for

survival, at least where the injury in question oc-

curred on navigable waters within the limits of the

state. The court rejected the contention that only a

federal statute could change the rule of admiralty law

that causes of action for personal injury die with the

person.

In Cox v. Roth, 348 U.S. 207, 75 S.Ct. 242, 99 L.Ed. 260

(1955), the issue was the survival of a cause of action

under the Jones Act, 46 U.S.C. § 688, upon the death of

the tortfeasor. As noted above, the Jones Act, in causes

of action for death of a seaman, incorporated the

provisions of the Federal Employers’ Liability Act, 45

U.S.C. § 51 et seq. The court broadly construed the

provisions of the latter act to allow survival of the

cause of action, despite its recognition that a “literal

application of the words of the F.E.L.A. would result in

the denial of recovery against the personal represen-

tative of the tortfeasor.” Id. at 209, 75 S.Ct. at 243. Todo

otherwise would “frustrate the congressional pur-

pose” underlying the Jones Act. Id.

Defendants correctly point out that these two cases,

while expanding the bases for survival, merely ap-

plied some statutory law already enacted. However,

their contention that a federal court may allow sur-

vival of an action only where a state statute so

provides is seriously undercut by two other decisions

of the Supreme Court, Van Beeck v. Sabine Towing

Co., 300 U.S. 342, 57 S.Ct. 452, 81 L.Ed. 685 (1937), and

Moragne v. States Marine Lines, 398 U.S. 375, 90 S.Ct.

1772, 26 L.Ed.2d 339 (1970).

In Van Beeck v. Sabine Towing Co., supra, the

Supreme Court held that a wrongful death action filed

by a seaman’s mother, pursuant to the Jones Act, 46

U.SC. § 688, does not abate with the death of the mother

but passes to her estate. The Jones Act, by incor-

porating the provisions of the Federal Employer's

Liability Act for railway employees, 45 U.S.C. § 51,

provided a cause of action for wrongful death for the

benefit of certain specified kin. However, the Act did

not specify any survival of the action upon the death of

the beneficiary. The court held that the wrongful death

action survived, after considering treatment of

similar questions by the several states and lower

federal courts.

Most damaging to defendants’ argument is the

Supreme Court’s unanimous decision in Moragne v.

States Marine Lines, supra.” Plaintiff sought to bring

a wrongful death action based on unseaworthiness

against the owner of a vessel upon which her husband

worked. At the time of his death, the vessel was within

the navigable waters of the State of Florida. Neither

federal statute nor Florida state law provided for a

wrongful death action based on the unseaworthiness

of a vessel. Moreover, in The Harrisburg, 119 U.S. 199,

7 S.Ct. 140, 30 L.Ed. 358 (1886), the court had previously

held that maritime law does not afford a cause of ac-

tion for wrongful death. The Supreme Court overruled

The Harrisburg and held that an action does lie under

general maritime law for death caused by violation of

maritime duties.

While Moragne concerns wrongful death actions

and the case before us relates to the entirely distinct

20 Justice Blackman did not participate in the decision.

concept of survival of decedent's actions, Moragne

stands for the proposition that creation of such

remedies is not limited to statutory law. In deter-

mining whether to create wrongful death actions un-

der the general maritime law, the court took note of the

proliferation of wrongful death statutes under federal

and state law:

“This legislative establishment of policy

carries significance beyond the particular

scope of each of the statutes involved. The

policy thus established has become itself a

part of our law, to be given its appropriate

weight not only in matters of statutory con-

struction but also in those of decisional law.

“This appreciation of the broader role played

by legislation in the development of the law

reflects the practices of common-law courts

from the most ancient times. As Professor

Landis has said, ‘much of what is ordinarily

regarded as “common law” finds it source in

legislative enactment.’ Landis, supra, at214. It

has always been the duty of the common-law

court to perceive the impact of major

legislative innovations and to interweave the

new legislative policies with the inherited

body of common-law principles — many of

them deriving from earlier legislative exer-

tions.” Moragne v. States Marine Lines, supra,

398 U.S. at 390-392, 90 S.Ct. at 1782. (emphasis

added)

64

The court recognized that every state has enacted a

wrongful death statute and that several federal

Statutes similarly allowed actions for wrongful

death. Thus, the court found the creation of a federal

common law of wrongful death appropriate, although

neither federal statute nor Florida state law had any

such provisions.

We thus find no impediment to the creation of a

federal common law of survival in civil rights actions

in favor of the personal representative of the deceased.

To the contrary, such a holding seems required by the

policies underlying the civil rights laws and the

Supreme Court’s treatment of survival of actions in

analogous contexts.?!

III. Failure to State a Claim Under 12 USC.

§§ 1985, 1986

The text of 42 U.S.C. § 1985 is set out in footnote 2 of

this opinion. Although plaintiff's amended complaint

simply refers to the rather lengthy statute as a whole,

the language upon which all parties rely is contained

in the last clause of § 1985(2) and the first two clauses

of § i985(3). These portions of the statute, in essence,

prohibit certain conspiracies with intent by the con-

spirators to deprive any person of the equal protection

of the laws. In Griffin v. Breckenridge, 403 U.S. 88, 91

S.Ct. 1790, 29 L.Ed.2d 338 (1971), the Supreme Court, in-

terpreting § 1985(3), unanimously held:

21 We add a final note on the implication of the Court's holding

upon 42 U.S.C. § 1988. Nothing this Court holds today has any

tendency to make § 1988 mere surplusage. We went beyond the dic-

tates of § 1988 to operate a federal common law of surviva2! in this

case because the federal policy in favor of this “remedy” is clear

and the state laws, except for Louisiana's, overwhelmingly permit

personal representatives of the deceased to bring suit where the

cause of action survived. We further found a developing federal

common law of survival. Where this convergence of factors does

not exist, a different result may be required.

65

“It is thus evident that all indicators — text,

companion provisions, and legislative

history — point unwaveringly to § 1985(3)’s

coverage of private conspiracies. That the

statute was meant to reach private action does

not, however, mean that it was intended to ap-

ply to all tortious, conspiratorial inter-

ferences with the rights of others. For, though

the supporters of the legislation insisted on

coverage of private conspiracies, they were

equally emphatic that they did not believe, in

the words of Representative Cook, ‘that Con-

gress has a right to punish an assault and

battery when committed by two or more per-

sons within a State.’ Id., at 485. The constitu-

tional shoals that would lie in the path of inter-

preting § 1985(3) as a general federal tort law

can be avoided by giving full effect to the con-

gressional purpose — by requiring, as an ele-

ment of the cause of action, the kind of in-

vidiously discriminatory motivation stressed

by the sponsors of the limiting amendment.

See the remarks of Representatives Willard

and Shellabarger, quoted supra, at 100 [91

S.C\. at 1797]. The language requiring intent to

deprive of equal protection, or equal

privileges and immunities, means that there

must be some racial, or perhaps otherwise

class-based, invidiously discriminatory

animus behind the conspirators’ action. The

conspiracy, in other words, must aim at a

deprivation of the equal enjoyment of rights

secured by the law to all.” (footnotes omitted)

Id. at 101-02, 91 S.Ct. at 1798.

Thus, acomplaint does not state a cause of acti -

der § 1985(3) unless it alleges some a ya

perhaps otherwise class-based, discriminatory intent

There is no need for us to reach the question, expressly

reserved by the Supreme Court, Griffin v. Brecken-

ridge, supra at 102 n. 9, 91 S.Ct. 1790, whether an in-

vidiously discriminatory intent other than racial bias

would be sufficient to state a cause of action under the

portions of § 1985(3) at issue here. Cf. Cong.Globe, 42d

Cong., 1st Sess., 567 (1871) (remarks of Sen. Edmunds).

Even assuming that any class-based discriminatory

intent is actionable, there is not the slightest evidence

of any such intent in the record. There is no evidence in

any of the answers to interrogatories filed that Shaw

was being prosecuted because he was a member of any

identifiable group cognizable by the e ;

qual

clause or otherwise. —

Although the Supreme Court in Griffin was constru-

ing only § 1985(3), there is no reason to believe that the

result should be any different with reference to the last

clause of § 1985(2). The language under § 1985(2) con-

cerning intent to deprive persons of equal protection

of the laws is substantially the same as that under

§ 1985(3), and should be read the same way. Johnston v.

National Broadcasting Company, Inc.,356F.S

(E.D.N.Y. 1973). y; Inc., 356 F.Supp. 904

The only other portion of § 1985 possibly relevant to

the facts of this case is the first clause of § 1985(2):

“If two or more persons in any State or

Territory conspire to deter, by force, intimida-

tion, or threat, any party or witness in any

court of the United States from attending such

67

court, or from testifying to any matter pend-

ing therein, freely, fully, and truthfully, as to

injure such party or witness in his person or

property on account of having so attended or

testified, ... the party so injured or deprived

may have an action for the recovery of dam-

ages, occasioned by such injury or depriva-

tion, against any one or more of the con-

spirators.” (emphasis added)

Although none of the parties has specifically relied

on this section, the Court has considered it in order to

make a proper disposition of defendants’ motion to

dismiss. At first glance, the provision quoted above

appears almost exactly tocover the conduct alleged in

the complaint. Moreover, it appears from the con-

struction of the statute that the requirement of intent

to deprive persons of the equal protection of the laws

may apply only to the second of the two clauses of

§ 1985(2). If this is so, lack of such discriminatory

animus on the part of defendants would not be fatal to

plaintiff's cause of action under clause 1.

However, we need not reach this question of whether

the intent to deprive of equal protection is a require-

ment of both clauses. Upon a closer reading of the

provision it is clear that it prohibits, by its terms, only

conspiracies to deter persons from testifying in “any

court of the United States.” As defined in 28 U.S.C.

§ 451, “court of the United States” refers only to the Ar-

ticle III courts and certain federal courts created by

Act of Congress. It does not include the various state

courts. This is fatal to plaintiff's claim, for itis only in

a Louisiana state trial court that plaintiff was tried,

and in which defendants allegedly conspired to deter

witnesses from testifying truthfully.22

Thus the complaint does not state a cause of action

under 42 U.S.C. § 1985. This conclusion disposes of the

claim under § 1986 as well, for § 1986 is entirely

derivative from § 1985. By its terms, the former stat-

ute has reference only to conspiracies cognizable un-

der § 1985. Accordingly, the courts have recognized

that if the conspiracy underlying a claim asserted un-

der § 1986 fails to meet the requirements of § 1985, then

the § 1986 claim also must fall. Dowsey v. Wilkins, 467

F.2d 1022, 1026 (5th Cir. 1972); Johnston v. Nationa]

Broadcasting Co., Inc., supra, 356 F.Supp. at 909-10;

Post v. Payton, 323 F.Supp. 799, 802 (E.D.N.Y.1971);

Huey v. Barloga, 277 F.Supp. 864, 875 (N.D.111.1967).

The motions by defendants to dismiss for failure to

state a claim upon which relief can be granted have

be. a brought only with reference to §§ 1985 and 1986.

We simply emphasize here that the Court’s granting of

these motions does not dismiss any of the defendants

from the present suit. Plaintiff's complaint still prop-

erly alleges acause of action against each of the defen-

dants pursuant to 42 U.S.C. § 1983, which none of the

defendants have challenged.

22 Although 28 U.S.C. § 451 was originally passed in 1948, “court

of the United States” had the same meaning when Congress used

the term in enacting the predecessor of 42 U.S.C. § 1985(2). The par-

ticular provision relating to conspiracies to deter witnesses from

testifying truthfully was a little-discussed portion of the civil

rights bill. But it is clear that the concern of Congress was solely to

protect the integrity of the newly-created remedy in federal court.

See Cong. Globe, 42d Cong., ist Sess., p. 486 (remarks of Rep.

Cook). Thus, Congress did not intend that portion of the statute to

extend to any interference with the testimony of witnesses which

occurred only in connection with state court proceedings.

Although that statute carries with it the require-

ment that the prohibited acts be committed under color

of state law, itis now clear that private persons may be

sued under the statute if they are acting in conspiracy

with some state official. United States v. Price, 383 U.S.

787, 794, 86 S.Ct., 1152, 16 L.Ed.2d 267 (1966); Fulton v.

Emerson Electric Co., 426 F.2d 527, 530 (5th Cir. 1969);

Gomez v. Florida State Employment Service, 417 F.2d

569, 578-79 (5th Cir. 1969); Baldwin v. Morgan, 287 F.2d

750 (5th Cir. 1961). The Supreme Court, construing 18

U.S.C. § 242, the criminal counterpart of 42 U.S.C.

§ 1983, stated:

“Section 242 applies only where a person in-

dicted has acted ‘under color’ of law. Private

persons, jointly engaged with state officials in

the prohibited action, are acting ‘under color’

of law for purposes of the statute. To act ‘under

color’ of law does not require that the accused

be an officer of the State. It is enough that he is

a willful participant in joint activity with the

State or its agents.”’ (footnote omitted) United

States v. Price, supra, 383 U.S. at 794, 86S.Ct. at

1156.

The same result is required under § 1983, since “under

color” of law has an identical meaning under both stat-

utes. Id. at 794, n. 7, 86 S.Ct. 1152.

In the case at bar, plaintiff's complaint more than

adequately alleges a conspiracy between the private

defendants and Jim Garrison, who was acting under

state law in his capacity as District Attorney of

Orleans Parish. The details of these allegations are set

out in Part I of the Court’s opinion, and need not be

70

repeated here. Plaintiff may or may not be able to

prove such allegations at trial, but they are clearly

sufficient to state a cause of action under § 1983

against each of the defendants.

For the reasons stated above,

It is the order of the Court that the motion on behalf

of defendants, Joseph M. Rault, Jr., Cecil M. Shilstone

Willard E. Robertson, and Dr. Esmond A. Fatter, to dis-

miss for abatement of the action due to the death of

Plaintiff, Clay Shaw, be, and the j

ore same is hereby,

It is the further order of the Court that the motion on

behalf of defendants, J oseph M. Rault, Jr., Cecil M

Shilstone, Willard E. Robertson, and Dr. Esmond A.

Fatter, to dismiss for failure to state a claim under 42

U.S.C. §§ 1985, 1986, upon which relief can be granted

be and the same is hereby, granted.

71

APPENDIX E

42 U.S.C. § 1983. Civil action for deprivation of rights

Every person who, under color of any statute, or-

dinance, regulation, custom, or usage, of any State or

Territory, subjects, or causes to be subjected, any

citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution

and laws, shall be liable to the party injured in an ac-

tion at law, suit in equity, or other proper proceeding

for redress.

42 U.S.C. § 1988. Proceedings in vindication of civil

rights

The jurisdiction in civil and criminal matters con-

ferred on the district courts by the provisions of this

chapter and Title 18, forthe protection of all persons in

the United States in their civil rights, and for their vin-

dication, shall be exercised and enforced in conformi-

ty with the laws of the United States, so far as such

laws are suitable to carry the same into effect; but in

all cases where they are not adapted to the object, or

are deficient in the provisions necessary to furnish

suitable remedies and punish offenses against law,

the common law, as modified and changed by the con-

stitution and statutes of the State wherein the court

having jurisdiction of such civil or criminal cause is

held, so far as the same is not inconsistent with the

Constitution and laws ofthe United States, shall be ex-

tended to and govern the said courts in the trial and

disposition of the cause, and, if it is of a criminal

nature, in the infliction of punishment on the party

found guilty.

72

Louisiana Civil Code Art. 23

" . 15. Liability for

causing damage; survival of action j sos

Every act whatever of man that causes damage to

another obliges hi

aaiie g im by whose fault it happened to

The right to recover damages to property caused b

an offense or quasi offense is & property right portend

on the death of the obligee, is inherited by his legal in-

stituted, or irregular heirs, subject to the commun it

rights of the surviving spouse. as

The right to recover a] other damages caused b an

offense or quasi offense, if the injured person ties

shall survive fora period of one year from the death of

the deceased in favor of: (1) the surviving spouse and

child or children of the deceased, or either such spouse

or such child or children: (2) the Surviving father and

mother of the deceased, or either of them, if he left no

spouse or child Surviving; and (3) the survivin

brothers and sisters of the deceased, or any of them if

he left no Spouse, child, or parent Surviving. The sur

vivors in whose favor this right of action survives

may also recover the damages which they sustained

through the wrongful death of the deceased. A right to

recover damages under the provisions of this

paragraph 1S @ property right which, on the death of

the survivor in whose favor the right of action sur-

vived, is inherited by his legal, instituted, or irregular

heirs, whether suit has been i i

, nN instituted

Survivor or not. Sere shea

; As used in this article, the words “child”, “brother”

Sister”, “father”, and “mother” include a child,

brother, sister, father, and

respectively. mother, by adoption,