1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 Ronnie L. MOODY, et al., Case No.: 18-cv-1110-WQH-AGS 4 Plaintiffs, REPORT AND RECOMMENDATION

TO GRANT IN PART PLAINTIFF’S

5 v.

MOTION TO SUBSTITUTE PROPER

6 CALIFORNIA DEPARTMENT OF PARTY (ECF 72)

CORRECTIONS AND

7 REHABILITATION, et al., 8 Defendants. 9 10 Donnel Jones Jr. seeks to substitute for his recently deceased father, plaintiff Donnel 11 Jones. Everybody agrees that substitution should generally be allowed. They also agree 12 that substitution is improper as to Jones’s intentional-infliction-of-emotional-distress 13 claim. The only issue is whether Jones’s claim for pain-and-suffering damages is barred. 14 BACKGROUND 15 In 2018, the late Donnel Jones and three other inmates sued prison officials for 16 excessive force and retaliation. (See generally ECF 48, at 5-10.) Jones died due to unrelated 17 causes on December 31, 2020. (ECF 72-2, at 2.) His son now moves to substitute himself 18 for his father, to carry on the litigation. (ECF 72.) 19 DISCUSSION 20 In deciding a substitution motion, a court must consider whether: (1) the motion is 21 timely; (2) the claims pleaded are extinguished; and (3) the person being substituted is a 22 proper party. Fed. R. Civ. P. 25(a)(1). The parties agree that the motion is timely, that 23 Donnel E. Jones Jr. is a proper party, and that most of the claims survive. (See ECF 74, 24 at 1-2; ECF 72-1, at 1-2.) They also agree that the common-law claims for intentional 25 infliction of emotional distress are extinguished under California’s survival statute. See 26 Cal. Civ. Proc. Code § 377.34 (“In an action . . . by a decedent’s personal representative or 27 successor in interest on the decedent’s cause of action, the damages recoverable . . . do not 28 include damages for pain, suffering, or disfigurement.”); (ECF 75, at 2). 1 The parties disagree on only one question: Does § 377.34 bar the pain-and-suffering 2 damages alleged in Jones’s federal civil-rights action under 42 U.S.C. § 1983? 3 Damages for such federal claims are generally governed by state law unless doing 4 so would be “inconsistent with the Constitution and laws of the United States.” 42 U.S.C. 5 § 1988(a). To determine whether federal law conflicts with California’s prohibition on an 6 estate recovering the decedent’s emotional damages, courts must look beyond the wording 7 of the relevant statutes and examine “the policies expressed in [them].” Robertson v. 8 Wegmann, 436 U.S. 584, 590 (1978). The policy rationales underlying § 1983 include 9 (1) “compensation of persons injured by deprivation of federal rights” and (2) “prevention 10 of abuses of power by those acting under color of state law.” Id. at 590-91. 11 In Robertson, the Supreme Court considered the case of a civil-rights plaintiff who 12 died of unrelated causes during the litigation, triggering a Louisiana survival statute that 13 completely precluded his § 1983 claim. See 436 U.S. at 590-93. The Court concluded that 14 this survival statute did not conflict with § 1983’s twin goals. First, it held that the “goal of 15 compensating those injured by a deprivation of rights provides no basis for requiring 16 compensation of one who is merely suing as the executor of the deceased’s estate.” Id. 17 at 592. In a similar vein, the Court rejected any tension with the deterrence rationale: “A 18 state official contemplating illegal activity must always be prepared to face the prospect of 19 a § 1983 action being filed against him. In light of this prospect, even an official aware of 20 the intricacies of Louisiana survivorship law would hardly be influenced in his behavior 21 by its provisions.” Id. So, “the Louisiana survivorship provisions” could not be “deemed 22 ‘inconsistent with the Constitution and laws of the United States.’” Id. at 593 (quoting 23 42 U.S.C. § 1988).1 24

25 1 The Supreme Court left open the question of whether this same analysis would 26 apply when the constitutional violations caused the plaintiff’s death. See Robertson, 27 436 U.S. at 594 (expressing “no view” about the result when “deprivation of federal rights caused death.”). In later cases, the Ninth Circuit concluded that when a plaintiff dies 28 1 Many lower courts have followed this same logic and held that when, as here, the 2 plaintiff’s death is unrelated to the constitutional violations, § 377.34 does not conflict with 3 federal law. See, e.g., Venerable v. City of Sacramento, 185 F. Supp. 2d 1128, 1133 (E.D. 4 Cal. 2002); Est. of Contreras ex rel. Contreras v. Cnty. of Glenn, 725 F. Supp. 2d. 1151, 5 1155-56 (E.D. Cal. 2010). 6 Yet that is hardly a unanimous view. A number of courts conclude that § 377.34 is 7 inconsistent with federal law based on § 1983’s compensation policy. These courts argue 8 that “the exclusion of pain and suffering wipes out the most significant measure 9 of section 1983 damages and to that extent is inconsistent” with § 1983’s purpose. 10 Williams v. City of Oakland, 915 F. Supp. 1074, 1079 (N.D. Cal. 1996); see also Cotton ex 11 rel. McClure v. City of Eureka, Cal., 860 F. Supp. 2d 999, 1014 (N.D. Cal. 2012); Briggs 12 v. Cnty. of Maricopa, No. CV-18-02684-PHX-EJM, 2020 WL 3440288, at *6 (D. Ariz. 13 June 23, 2020). 14 But this analysis fails to grapple with Robertson. After all, in Robertson the Supreme 15 Court blessed reliance on a state survival statute in similar circumstances, even though it 16 operated as a complete bar to the § 1983 claim. No case has yet explained why judges 17 should ignore the Supreme Court’s determination that the “goal of compensating those 18 injured by a deprivation of rights provides no basis for requiring compensation of one who 19 is merely suing as the executor of the deceased’s estate.” Robertson, 436 U.S. at 592 20 (emphasis added). This Court is thus bound by Robertson. 21 When a § 1983 plaintiff dies unexpectedly in mid-litigation, the Robertson Court 22 allowed for only one narrow justification for disregarding a state survival statute like the 23 one here. That is, a court may ignore the survival statute if the “state law did not provide 24 25 26 policy goals. See Chaudhry v. City of L.A., 751 F.3d 1096, 1101-04 (9th Cir. 2014). But 27 the Ninth Circuit stressed that, in analyzing § 1983’s deterrence rationale, “the distinction between those violations of federal law that cause death and those that do not is crucial.” 28 1 survival of any tort actions, or if it significantly restricted the types of actions that 2 ||survive.” Jd. at 594 (emphasis added and citation and quotation marks omitted). 3 || California’s § 377.34 does not fall within this exception. It permits the survival of § 1983 4 and virtually every other kind of tort; 1t just limits the recovery of certain types of 5 damages. So, when the plaintiff dies of unrelated causes during the litigation, § 377.34 does 6 ||not conflict with § 1983’s policy goals. See Robertson, 436 U.S. at 593. California’s 7 || survival statute therefore governs whether pain-and-suffering damages are available here. 8 CONCLUSION 9 Because California’s survival statute is not inconsistent with § 1983’s underlying 10 policy goals in these circumstances, this Court must apply that survival statute’s bar to 11 ||recovering “damages for pain, suffering, or disfigurement.” See Cal. Civ. Proc. Code 12 377.34. Thus, the Court recommends the following orders: 13 1. Plaintiff Jones’s claim for intentional infliction of emotional distress is 14 DISMISSED. 15 2. Plaintiff Jones’s § 1983 damages claim for pain, suffering, or 16 disfigurement is DISMISSED. 17 3. Otherwise, plaintiff Jones’s motion for substitution of proper party is 18 GRANTED. 19 By December 24, 2021, the parties must file any objection to this report. 20 || See 28 U.S.C. § 636(b)(1). By January 7, 2022, the party receiving an objection must file 21 || any response. See Fed. R. Civ. P. 72(b)(2). 22 Dated: December 10, 2021 23 — | Hon. Andrew G. Schopler United States Magistrate Judge 25 26 27 28