No. 13-514 ================================================================

In The

Supreme Court of the United States --------------------------------- ---------------------------------

RITA HOAGLAND,

Petitioner, vs.

ADA COUNTY, IDAHO, ET AL.,

Respondents.

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On Petition For A Writ Of Certiorari To The Idaho Supreme Court

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BRIEF FOR ADA COUNTY, IDAHO, ET AL., IN OPPOSITION

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RICHARD SEAMON Professor of Law UNIVERSITY OF IDAHO COLLEGE OF LAW 875 Perimeter Drive, Mail Stop 2321 Moscow, ID 83844 (208) 885-7061 GREG H. BOWER Ada County Prosecuting Attorney JAMES K. DICKINSON SHERRY A. MORGAN RAY J. CHACKO CIVIL DIVISION 200 W. Front St. Boise, ID 83702 (208) 287-7700

PAUL G. CASSELL Counsel of Record F. ANDREW HESSICK MICHAEL J. TETER APPELLATE LEGAL CLINIC S. J. QUINNEY COLLEGE OF LAW AT THE UNIVERSITY OF UTAH332 S. 1400 E., Room 101 Salt Lake City, UT 84112 (801) 585-5202 cassellp@law.utah.edu

Counsel for Respondents Ada County, Idaho, et al.

================================================================ COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

For Section 1983 claims, Section 1988(a) provides that, where no federal law is suitable to provide remedies,

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 Constitu-tion and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause. . . .

42 U.S.C. § 1988(a). The Idaho Supreme Court ap-plied the long-standing common law rule of abate-ment in this case to hold that Bradley Munroe’s personal action under Section 1983 abated at his death.

The question presented is whether this common law rule of abatement is “inconsistent with” federal law under Section 1988, even though that rule was well established when Congress enacted Section 1988 (in 1866) and Section 1983 (in 1871).

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LIST OF PARTIES

Rita Hoagland, individually;

Rita Hoagland, in her capacity as personal repre-sentative of the Estate of Bradley Munroe;

Ada County, Idaho;

Ada County Sheriff Gary Raney, in his individual and official capacity;

Linda Scown, in her individual and official capacity;

Kate Pape, in her individual and official capacity;

Steven Garrett, M.D., in his individual and official capacity;

Michael E. Estess, M.D., in his individual and official capacity;

Ricky Lee Steinberg, in his individual and official capacity;

Karen Barrett, in her individual and official capacity;

Jenny Babbitt, in her individual and official capacity;

James Johnson, in his individual and official capacity;

Jeremy Wroblewski, in his individual and official capacity;

David Weich, in his individual and official capacity;

Lisa Farmer, in her individual and official capacity; and

Jamie Roach, in her individual and official capacity.

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................. v

OPINIONS BELOW ............................................. 1

JURISDICTION ................................................... 1

RELEVANT STATUTORY PROVISIONS INVOLVED ....................................................... 1

STATEMENT OF THE CASE .............................. 1

Factual Background ......................................... 1

The Original State Case ................................... 6

The District Court’s Dismissal of the Action .... 8

The Appeal to the Idaho Supreme Court ......... 9

REASONS FOR DENYING THE PETITION ..... 11

I. THE DECISION BELOW DOES NOT CONCERN ANY CONFLICT WARRANT-ING THIS COURT’S REVIEW .................. 13

II. THE QUESTION OF WHETHER IDAHO CAN APPLY COMMON LAW TO A SEC-TION 1983 CLAIM IS NOT SUFFI-CIENTLY IMPORTANT TO MERIT THIS COURT’S REVIEW .......................... 19

III. THIS CASE IS A POOR VEHICLE FOR RESOLVING THE QUESTION PRE-SENTED .................................................... 23

A. The Petition Names The Wrong Peti-tioner ................................................... 24

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TABLE OF CONTENTS – Continued

Page

B. Petitioner’s Failure To Pursue A Wrongful Death Action Deprives The Court Of Critical Context For Re-solving The Question Presented .......... 26

C. Review Is Unwarranted Because All of the Defendants Were Appropriately Dismissed On Other Grounds ............. 29

IV. THE LONG-STANDING, COMMON LAW ABATEMENT RULE IS CONSISTENT WITH FEDERAL POLICIES .................... 31

CONCLUSION ..................................................... 37

APPENDIX

Civil Docket for Case #: 1:10-cv-00486-EJL ....... App. 1

Statutory Appendix

42 U.S.C. § 1983 ............................................... App. 5

42 U.S.C. § 1985 ............................................... App. 5

42 U.S.C. § 1988 ............................................... App. 8

v

TABLE OF AUTHORITIES

Page

CASES

Albright v. Oliver, 510 U.S. 266 (1994) ..................... 24

Andrews v. Neer, 253 F.3d 1052 (8th Cir. 2001) ...... 17

Bass v. Wallenstein, 769 F.2d 1173 (7th Cir. 1985) ....................................................................... 15

Berry v. City of Muskogee, 900 F.2d 1489 (10th Cir. 1990) ................................................................ 15

Brazier v. Cherry, 293 F.2d 401 (5th Cir. 1961) .... 16, 17

Cahoon v. Cummings, 734 N.E.2d 535 (Ind. 2000) ....................................................................... 20

Carlson v. Green, 446 U.S. 14 (1980) ........................ 35

Carter v. City of Birmingham, 444 So.2d 373 (Ala. 1983) .............................................................. 22

Centra Health, Inc. v. Mullins, 670 S.E.2d 708 (Va. 2009) ............................................................... 21

Evans v. Twin Falls County, 118 Idaho 210, 796 P.2d 87 (1990), cert. denied, 498 U.S. 1086 (1991) ................................................... 8, 14, 22

Garlock Sealing Technologies, LLC v. Pittman, 2008-IA-01572-SCT, ___ So.3d ___, 2010 WL 4009151 (Miss. 2010) .............................................. 20

Geier v. American Honda Motor Co., Inc., 529 U.S. 861 (2000) ........................................................ 33

vi

TABLE OF AUTHORITIES – Continued

Page

Georgia R.R. & Banking Co. v. Wynn, 42 Ga. 331 (1871) ................................................................ 31

Glona v. American Guar. & Liab. Ins. Co., 391 U.S. 73 (1968) ......................................................... 31

Hoagland, et al. v. Ada County, et al., No. 1:10-cv-00486-EJL (D. Idaho 2010) ........................... 8, 19

Jaco v. Bloechle, 739 F.2d 239 (1984) ....................... 15

Jefferson v. City of Tarrant, 520 U.S. 1154 (1997), cert. dismissed, 522 U.S. 75 ....................... 28

Jefferson v. City of Tarrant, 522 U.S. 75 (1997) ................................................................ 14, 25

Jones v. Hildebrant, 432 U.S. 183 (1977) ................. 25

McFadden v. Sanchez, 710 F.2d 907 (1983) ............. 14

Memphis Community Sch. Dist. v. Stachura, 477 U.S. 299 (1986) ................................................ 34

Miles v. Apex Marine Corp., 498 U.S. 19 (1990) ....... 27

Mobile Life Ins. Co. v. Brame, 95 U.S. 754 (1877) ...................................................................... 32

Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978) ........................................................................ 9

Monroe v. Pape, 365 U.S. 167 (1961) ........................ 28

Nelson v. Dolan, 434 N.W.2d 25 (Neb. 1989) ........... 20

Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981) ................................................................ 34, 35

Pfau v. Comair Holdings, Inc., 15 P.3d 1160 (Idaho 2000) ........................................................... 27

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TABLE OF AUTHORITIES – Continued

Page

Rehberg v. Paulk, 132 S.Ct. 1497 (2012) .................. 34

Robertson v. Wegmann, 436 U.S. 584 (1978) ..... passim

Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573 (1974) ...................................................................... 28

Thornton v. Ins. Co. of N. Am., 287 So.2d 262 21(Miss. 1973) ........................................................ 21

Venerable v. City of Sacramento, 185 F. Supp. 2d 1128 (E.D. Cal. 2002) ............................................. 27

Volk v. Baldazo, 651 P.2d 11 (Idaho 1982) ......... 26, 27

Wilson v. Garcia, 471 U.S. 261 (1985) ...................... 33

Yamaha Motor Corp. v. Calhoun, 516 U.S. 199 (1996) ...................................................................... 31

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. IV ................................................ 24

U.S. Const. amend. XIV ............................................. 24

STATUTES

28 U.S.C. § 1257(a) ...................................................... 1

42 U.S.C. § 1983 ................................................. passim

42 U.S.C. § 1985 .................................................. 32, 33

42 U.S.C. § 1986 .................................................. 32, 33

42 U.S.C. § 1988 ................................. 13, 15, 16, 35, 36

42 U.S.C. § 1988(a) ................................... 13, 14, 15, 16

Ala. Code § 6-5-410 .................................................... 21

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TABLE OF AUTHORITIES – Continued

Page

Ala. Code § 6-5-462 .................................................... 21

Alaska Stat. § 09.55.570 (2012) ................................ 20

Ariz. Rev. Stat. Ann. § 14-3110 (2012) ..................... 20

Ark. Code Ann. § 16-62-101 (West 2013) .................. 20

Cal. Civ. Proc. Code § 377.20 (West 2013) ................ 20

Civil Rights Act of 1871, Act of Apr. 20, 1871, ch. 22 § 6, 17 Stat. 13 ............................................. 32

Colo. Rev. Stat. Ann. § 13-20-101 (West 2005) ......... 20

Conn. Gen. Stat. Ann. § 52-599 (West 2013) ............ 20

D.C. Code § 12-101 (2013) ......................................... 20

Del. Code Ann. tit. 10 § 3701 (West 2006) ................ 20

Fla. Stat. Ann. § 46.021 (West 2006) ........................ 20

Ga. Code Ann. § 9-2-41 (West 2003) ......................... 20

Haw. Rev. Stat. Ann. § 663-7 (West 2008) ............... 20

Idaho Code § 5-311 (2011) ......................................... 26

Idaho Code § 6-907 (2010) ........................................... 7

Idaho Code § 73-116 (2006) ....................................... 32

Ill. Comp. Stat. Ann. 5/27-6 (West 2013) ................... 20

Ind. Code Ann. §§ 34-9-3-1, 34-9-3-4, 34-23-1-1 (West 2011) ............................................................. 20

Iowa Code Ann. § 611.20 (West 1999) ...................... 20

Kan. Stat. Ann. § 60-1801 (West 2008) .................... 20

Ky. Rev. Stat. Ann. § 411.140 (West 2006) ............... 20

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TABLE OF AUTHORITIES – Continued

Page

La. Civ. Code Ann. art. 2315.1 (2002) ....................... 20

Mass. Gen. Laws Ann. ch. 228, § 1 (West 2000) ....... 20

Me. Rev. Stat. tit. 18, § 3-817 (2012) ........................ 20

Md. Code Ann., Cts. & Jud. Proc. § 6-401 (West 2011) ........................................................................ 20

Mich. Comp Laws §§ 600.2921-.2922 (West 2010) ....................................................................... 20

Minn. Stat. Ann. § 573.01 ......................................... 21

Minn. Stat. Ann. § 573.02 ......................................... 21

Miss. Code Ann. § 91-7-233 (2013)............................ 20

Mo. Rev. Stat. §§ 537.020, .080 (2013) ...................... 21

Mont. Code Ann. § 27-1-501 (West 2009) ................. 20

N.C. Gen. Stat. § 28A-18-1 (West 2003) ................... 20

N.D. Cent. Code Ann. § 28-01-26.1 (West 2008) ....... 20

N.H. Rev. Stat. Ann. §§ 556:9, :10, :11 (2007) .......... 20

N.J. Stat. Ann. § 2A:15-3 (West 2000) ...................... 20

N.M. Stat. Ann. §§ 37-2-1, 41-2-1 (West 2013) ......... 20

N.Y. Est. Powers & Trusts § 11-3.2 (McKinney 2008) ....................................................................... 20

Neb. Rev. Stat. Ann. § 25-1401 (West 2009) ............ 20

Nev. Rev. Stat. Ann. § 41.100 (West 2000) ............... 20

Ohio Rev. Code Ann. § 2305.21 (West 2004) ............ 20

Okla. Stat. Ann. tit. 12, § 1051 (2000) ...................... 20

Or. Rev. Stat. Ann. § 30.075 (West 2013) .................. 20

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TABLE OF AUTHORITIES – Continued

Page

42 Pa. Cons. Stat. Ann. § 8302 (West 2007) .............. 20

R.I. Gen. Laws Ann. § 9-1-6 (West 2013) ................... 20

S.C. Code Ann. § 15-5-90 (2005) ............................... 20

S.D. Codified Laws § 15-4-1 (2004) ........................... 20

Tenn. Code Ann. § 20-5-113 (West 2013) ................. 21

Tex. Civ. Prac. & Rem. § 71.021 (West 2008) ........... 20

Utah Code Ann. § 78B-3-107 (West 2009) ................ 20

Va. Code Ann. §§ 8.01-25, -56 (West 2013) ............... 21

Vt. Stat. Ann. tit. 14, §§ 1452-1453 (West 2007) ...... 20

W. Va. Code Ann. § 55-7-8 (West 2002) .................... 20

Wash. Rev. Code Ann. § 4.20.060 (West 2005) ......... 20

Wis. Stat. Ann. § 895.01 (West 2006) ....................... 20

Wyo. Stat. Ann. § 1-4-101 (West 2007) ..................... 20

RULES

Sup. Ct. R. 10 .............................................................. 18

Sup. Ct. R. 12.4 ..................................................... 25, 26

OTHER AUTHORITIES

Cooley on Torts 14 (2d ed. 1888) ................................. 31

Francis B. Tiffany, Death By Wrongful Act (2d ed. 1913) .................................................................. 31

J. Stein, Damages and Recovery § 3.8 (1972) ............ 27

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TABLE OF AUTHORITIES – Continued

Page

U.S. Dep’t of Justice, Mortality in Local Jails and State Prisons, 2000-2011 – Statistical Tables (2013) ........................................................... 23

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BRIEF FOR ADA COUNTY, IDAHO, ET AL., IN OPPOSITION

OPINIONS BELOW

The opinion of the Idaho Supreme Court (Pet. App. 2a-35a) is officially reported at 154 Idaho 900 (2013) and is also reported at 303 P.3d 587. The decisions of the Idaho District Court of the Fourth Judicial District (38a-122a) are unreported.

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JURISDICTION

This Court has jurisdiction under 28 U.S.C. § 1257(a).

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RELEVANT STATUTORY PROVISIONS INVOLVED

Relevant statutory provisions are set forth at App. 5-9.

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STATEMENT OF THE CASE

Factual Background

On September 28, 2008, Boise police officers arrested Bradley Munroe shortly after he robbed a

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convenience store.1 He robbed the store by telling the clerk he had a bomb inside his backpack. When the police apprehended Munroe, he told them there was cash in the backpack, no bomb, and that he wanted an attorney. Police placed him into a patrol car, and Munroe became uncooperative, kicking and hitting his head. The officers, noting a strong odor of alcohol, restrained him. They then drove him to the police department and called paramedics, who transported Munroe to a hospital. R. 146-47, 3851; Pet. App. 3a-4a, 71a-72a.2

The doctor’s diagnostic impressions were “acute alcohol intoxication, polysubstance abuse, abrasion secondary to apprehension by police . . . with re-sistance, and chronic back pain.” R. 3851. Although Munroe said he would commit suicide if released, he provided assurances that he had no plans to do so that night. The doctor cleared Munroe to be trans-ported to the Ada County Jail. R. 147; Pet. App. 4a, 72a.3

1 Just two days earlier, Munroe had been released from a twenty-eight day sentence in the Ada County Jail. Pet. App. 3a, 77a. 2 References to the certified record on appeal to the Su-preme Court of Idaho are cited “R. [page number].” 3 Munroe was no stranger to incarceration. In 2007 and 2008, Munroe had spent time in various Utah jails and had been booked into the Ada County Jail four times. R. 80, 148-50; Pet. App. 3a, 76a-77a.

3

At the jail, deputies began booking Munroe until he became uncooperative. At that point, the deputies put him in a holding cell, where they checked on him every fifteen minutes for approximately nine hours. R. 160-65; Pet. App. 4a, 72a.4

The next morning, Deputy Jeremy Wroblewski re-sumed the booking process, and observed that Mun-roe appeared sick and hung-over. When Wroblewski asked Munroe the required mental health questions, Munroe answered that, although he had attempted suicide in the past and had thought about suicide before, he was not considering it at that time. Another deputy contacted the jail’s Health Services Unit (“HSU”), which employs psychiatric social workers to conduct assessments of inmates to determine if in-tervention is warranted. James Johnson, a Master’s level psychiatric social worker with over twenty years of experience, responded to the call. R. 142, 156-57, 3291, 3293; Pet. App. 4a, 5a, 72a-74a.

Johnson first reviewed the jail’s medical records, which showed that he had assessed Munroe earlier that month, when Munroe had been in jail on another offense. The records showed that during his prior jail stay Munroe had denied thinking about suicide. The records contained no evidence that Munroe had tried

4 Petitioner’s assertion that Munroe repeatedly attempted to strangle himself “with strips of his own boxer shorts” in that cell is unsupported by the Record. See Pet. 3-4; Pet. App. 72a.

4

to hurt himself during that previous twenty-eight day stay. R. 137-38; Pet. App. 4a, 73a.

Johnson then met Munroe in the booking area. Munroe told Johnson that he was not suicidal and explained that he was intoxicated and high the previous night. Munroe assured Johnson (and later Wroblewski) that he would not hurt himself. R. 138, 142; Pet. App. 4a-5a, 73a.

Johnson observed Munroe as he completed the booking process. Johnson studied Munroe’s demeanor, his affect, and the way in which he answered Wroblewski’s questions. Johnson noted that Munroe followed directions, was not distracted, expressed himself properly, and that he was alert, calm, and cooperative. Johnson further noted that Monroe did not show sadness, distress, inattention, distractibility, or any distortion in thought process, and that he appeared to be coping with his current circumstances and appropriately interacting with staff. Based on his observations, Johnson determined that there was no need to admit Munroe to the HSU. R. 137-39; Pet. App. 4a-5a, 73a-74a.

Later that morning, petitioner called the HSU. In the conversation, she said that Munroe had attempt-ed suicide in the past and that she had heard he might be suicidal again. This information was relayed to Johnson, who had just finished his assessment. Johnson considered the information and did not

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change his assessment. R. 152-53, 139; Pet. App. 5a, 75a-76a.5

After booking, another deputy escorted Munroe to be housed in a multi-person cell.6 On the way, Munroe stated that he needed to be in protective cus-tody. When asked who wanted to harm him, Munroe replied that he was “into a lot of stuff ” (Pet. App. 5a) and everyone wanted to kill him. For Munroe’s pro-tection, the deputy placed Munroe in a cell in the side-chute of Cellblock 7. The side-chute is a group of smaller cells where protective custody inmates are commonly housed. Johnson was informed of Munroe’s cell placement. R. 132-33, 167-68; Pet. App. 5a, 74a-75a.

As Munroe arrived at Cellblock 7, he started a conversation with the other inmates, laughing and joking with them. Munroe stated that he would be okay staying in that cellblock. Cellblock 7 housed inmates in a dormitory-style setting. Because the jail

5 The trial court found that jail clinicians are “daily con-fronted with inmates threatening suicide” (Pet. App. 53a), and that “on the morning of his suicide, the deputies did not find Munroe’s behavior to be abnormal in the jail context.” Pet. App. 52a. 6 Petitioner’s description of Munroe as a “high risk of suicide” is not supported by the record. It appears to be petition-er’s conflation of Munroe’s custody status of Medium High (Pet. App. 77a) (requiring him to be housed in a more confined setting based on his criminal history (R. 2371)), with the unrelated code for “SUIHIST” (an alert to detention staff regarding suicide history).

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had not yet classified Munroe for long-term housing, he could not yet be housed there, and was taken to his cell in the side-chute. R. 168.

At approximately 7:00 p.m. that evening, a deputy walked the entire cellblock and side-chute, checking that every inmate was safe, healthy, and accounted for. During those rounds, Munroe request-ed that his food tray be taken from his cell. Munroe was not acting in any fashion that suggested he might harm himself. R. 171-72; Pet. App. 76a.

At 8:08 p.m., a deputy began another well-being check, which included Munroe’s cell. Nothing out of the ordinary was noticed regarding Munroe. R. 122; Pet. App. 76a.

At 8:35 p.m., another well-being check began. A deputy discovered Munroe with a sheet wrapped around his neck. The deputy started CPR and called paramedics. Munroe was quickly transported to a local hospital, where he was pronounced dead later that evening. R. 122, 171-72; Pet. App. 5a, 76a.

The Original State Case

On November 17, 2008, the estate of Bradley Munroe filed a Notice of Tort Claim under the Idaho Tort Claims Act, but petitioner did not.7 Two months

7 Contrary to petitioner’s representations that complying with the Act is difficult (Pet. 33), such notices are not “held invalid or insufficient by reason of an inaccuracy in stating the

(Continued on following page)

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later, petitioner and the estate filed their first com-plaint in state court. This complaint alleged a Section 1983 claim against Ada County sheriff ’s deputies and an administrative supervisor, a state tort action for wrongful death against the same defendants and the Sheriff, and a state tort action for intentional inflic-tion of emotional distress against the administrative supervisor.

On May 28, 2010, the defendants filed for sum-mary judgment. Instead of addressing the defenses raised, petitioner and the estate withdrew all of their state law claims and dismissed all of the defendants except the Sheriff. Petitioner and the estate then sought leave to amend their complaint to proceed upon new Section 1983 claims against different de-fendants regarding Munroe’s medical treatment. The district court granted the request and, after a series of further amendments, a third amended complaint was filed on September 14, 2010.

The third amended complaint bore little resem-blance to the first complaint. It consisted of two counts: a Section 1983 claim by the estate and a Section 1983 claim by petitioner. It also included demands for punitive damages and attorneys’ fees. Both claims named Ada County and various county employees in their individual and official capacities.

time, place, nature or cause of the claim, or otherwise, unless it is shown that the governmental entity was in fact misled to its injury thereby.” Idaho Code § 6-907 (2010).

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On September 24, 2010, the estate and petitioner filed a separate action against the same defendants in the U.S. District Court for the District of Idaho. Hoag-land, et al. v. Ada County, et al., No. 1:10-cv-00486-EJL (D. Idaho, 2010). App. 1-4. That action alleged claims equivalent to those brought in the state action.

On November 2, 2010, the state trial court dis-missed the claims of the estate on the ground that the estate was not a valid plaintiff. The court based its decision on Robertson v. Wegmann, 436 U.S. 584, 594-95 (1978), in conjunction with Evans v. Twin Falls County, 118 Idaho 210, 215, 796 P.2d 87, 92 (1990), cert. denied, 498 U.S. 1086 (1991), which allows dismissal of Section 1983 claims under common law abatement. The court noted that such an outcome was consistent with the policies underlying Section 1983, given the availability of Idaho’s wrongful death statute allowing heirs to bring claims. Pet App. 115a-18a. The court did not dismiss the claims brought by petitioner in her personal capacity.

After the estate was dismissed by the state district court, it could have continued to pursue its Section 1983 claim in federal court. Instead, both the estate and petitioner voluntarily dismissed their federal case on November 18, 2010. App. 4.

The District Court’s Dismissal of the Action

With only the petitioner remaining as a plaintiff, the defendants filed a new summary judgment mo-tion. On January 20, 2011, the district court granted

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summary judgment in favor of all the defendants except for social worker Johnson. The district court determined that even when drawing all reasonable inferences in favor of petitioner, the record did not support a finding either that Ada County (or the official capacity defendants) had adopted an unconsti-tutional policy, or that a pattern or practice existed demonstrating an unconstitutional custom as re-quired by Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). Further, the court concluded that the record did not support a finding that the defendants in their personal capacity had acted with deliberate indiffer-ence. Pet. App. 89a-90a, 94a-101a. By contrast, the court found there were genuine issues of material fact that precluded awarding summary judgment for Johnson. Pet. App. 101a-02a.

Both petitioner and Johnson moved for reconsid-eration. Upon further review, the district court dis-missed the claim against Johnson on the ground that he was entitled to qualified immunity. The court explained that “Johnson acted in an objectively reasonable manner when he incorrectly decided that Bradley Munroe was not at imminent risk of suicide on September 29, 2008” and that Johnson’s “incorrect, but thoughtful, analysis is the sort of action that Qualified Immunity protects.” Pet. App. 54a.

The Appeal to the Idaho Supreme Court

On appeal to the Idaho Supreme Court, the estate argued that it should have been allowed to

10

proceed as a Section 1983 plaintiff, and petitioner argued that the district court’s finding of no Sec- tion 1983 liability against some (but not all) of the defendants should be overturned. The defendants cross-appealed with respect to the issue of whether petitioner was a proper Section 1983 plaintiff.

The Supreme Court affirmed the dismissal of all claims. The Court agreed with the district court that the estate was not a permissible Section 1983 plain-tiff. The Court specifically relied on the common law rule of abatement, explaining that “[a]t common law in Idaho, a victim’s right of action for torts dies with the victim. The common law in Idaho remains in effect unless modified by the legislature. The legisla-ture has not modified Idaho’s abatement rule, but it does permit wrongful death actions.” Pet. App. 12a-13a (internal citations omitted). In light of the com-mon law, the Court reasoned, the estate had no Section 1983 claim.

The Idaho Supreme Court was careful to note that, although Munroe’s claims abated upon his death, an heir still could bring a wrongful death action. The Court explained that “the abatement rule is not inconsistent with the policies of § 1983 because there is an adequate remedy available through Idaho’s wrongful death statute for the death of Munroe.” Pet. App. 14a. The Court observed that “[petitioner] opted not to avail herself of that [wrongful death action], allegedly failed to timely file her Notice of Tort Claim, and voluntarily dismissed her wrongful death claim.”

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Id. Given these choices, “[t]he mere fact [petitioner] chose not to pursue a cause of action available outside of § 1983 does not render Idaho’s abatement rule inconsistent with federal law.” Id.

The Idaho Supreme Court also affirmed the dis-missal of the claims brought by petitioner in her per-sonal capacity. It recognized that petitioner may have had a separate claim but “failed” to introduce suffi-cient evidence “to establish a violation of her con-stitutional rights underlying her § 1983 claim.” Pet. App. 21a.

Finally, the Idaho Supreme Court determined that the district court had not made adequate find-ings in its award of costs to the defendants. The Court accordingly remanded the case “for the recon-sideration and entry of express findings regarding the district court’s award of discretionary costs and entry of a judgment consistent with this Opinion.” Pet. App. 35a. Proceedings regarding costs are, as of December 17, 2013, still ongoing.

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REASONS FOR DENYING THE PETITION

Petitioner claims that her petition should be granted to answer a question reserved in Robertson v. Wegmann, 436 U.S. 584 (1978), namely “whether abatement based on state law could be allowed in a situation in which deprivation of federal rights caused death.” Id. at 594 (emphasis added). This case does not present that reserved issue, however, because

12

Idaho state law does not extinguish a claim where an alleged constitutional violation caused the decedent’s death. Rather, the claim abates as a result of a com-mon law rule that is older than the State of Idaho. With this point in mind, petitioner’s claim that the decision below conflicts with other decisions is inac-curate and provides no basis for review.

Moreover, any question of the nuances regarding Idaho’s application of the common law is not suffi-ciently important to merit this Court’s attention. Idaho simply follows the common law on this issue, while forty-eight states have substituted statutory approaches. Accordingly, any ruling by this Court would potentially affect only a small number of cases.

This petition also serves as a poor vehicle to address the common law abatement rule. The petition names the wrong petitioner: the decedent’s mother in her individual capacity rather than the administrator of the decedent’s estate. Moreover, in the courts below, petitioner failed to properly pursue her wrong-ful death claim, with the ultimate result that she voluntarily dismissed it. Accordingly, were this Court to grant certiorari, it would be doing so in a case without a fully-developed record about Idaho’s reme-dies for wrongful death. And lastly, the trial court properly rejected all of petitioner’s claims on other grounds.

In any event, the Idaho Supreme Court’s ruling was correct. In enacting Section 1983, Congress knew that it was not providing any survival or wrongful

13

death remedy. Instead, by its earlier enactment of Section 1988, Congress left such issues to be handled by the common law. The Idaho Supreme Court properly applied the common law rule, which resulted in abatement of the claim by the decedent’s estate.

I. THE DECISION BELOW DOES NOT CON-

CERN ANY CONFLICT WARRANTING THIS COURT’S REVIEW.

Unlike other cases cited by petitioner, all of which involved state statutes, the decision below applied common law. Accordingly, the decision does not conflict with the cases cited by petitioner.

As petitioner explains, the issue of abatement of the estate’s Section 1983 claim is controlled by Sec-tion 1988(a). That statute provides that jurisdiction in a Section 1983 case “shall be exercised and en-forced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect. . . .” 42 U.S.C. § 1988(a). As this Court has explained, one area not covered by federal law is that relating to “the survival of civil rights actions under § 1983 upon the death of . . . the plain-tiff.” Robertson, 436 U.S. at 589. For areas such as these, “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 the United States, shall be extended to and govern the said courts in the

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trial and disposition of the cause. . . .” 42 U.S.C. § 1988(a) (emphasis added).

Unlike other states, which have adopted statutes in this area, see pages 19-21, infra, Idaho applies an unchanged common law rule of abatement dating back to the early 1800s. See Evans v. Twin Falls County, 796 P.2d 87, 92 (Idaho 1990) (tracing the Idaho common law abatement rule to the 1800s), cert. denied, 498 U.S. 1086 (1981); see also pages 31-32, infra (abatement well-established at common law by the early 1800s). In this case, the Idaho Supreme Court specifically applied the “common law” rule of abatement to petitioner’s Section 1983 action. Pet. App. 12a-13a (“The common law in Idaho remains in effect unless modified by the legislature. The legisla-ture has not modified Idaho’s abatement rule. . . .” (internal quotation omitted)).

Petitioner nonetheless claims that the Idaho Su-preme Court’s decision squarely conflicts with de-cisions of the Second, Sixth, Seventh, and Tenth Circuits. The most recent of these cases was decided twenty-three years ago – in 1990 – belying peti-tioner’s assertion that the asserted circuit conflict has “deepened” (Pet. 10) since this Court dismissed certiorari on jurisdictional grounds in Jefferson v. City of Tarrant, 522 U.S. 75 (1997). Moreover, the decisions of the Second, Sixth, Seventh, and Tenth Circuits do not conflict with the decision of the Idaho Supreme Court, because each considered the applica-bility of a state survival statute that diverged from common law. See McFadden v. Sanchez, 710 F.2d 907,

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911 (1983) (concluding that a New York statute barring punitive damages in survival claims was inconsistent with Section 1983); Jaco v. Bloechle, 739 F.2d 239, 243-45 (1984) (concluding that an Ohio statute restricting survival actions to injuries sus-tained before death was inconsistent with Section 1983); Bass v. Wallenstein, 769 F.2d 1173, 1189-90 (7th Cir. 1985) (concluding that an Illinois statute restricting survival actions to injuries sustained before death was inconsistent with Section 1983); Berry v. City of Muskogee, 900 F.2d 1489, 1504 (10th Cir. 1990) (concluding that an Oklahoma statute limiting the type of damages recoverable in survival actions was inconsistent with Section 1983).

A critical difference exists between the state survival statutes involved in these cases and the common law, given that Section 1988 itself instructs that “the common law” is controlling unless it has been modified by state law. 42 U.S.C. § 1988(a).8 The

8 If this Court grants certiorari in this case, it might face difficult issues regarding the meaning of Section 1988’s refer-ence to “the common law” that were not discussed below. As this Court noted in Robertson, the reference “might be interpreted as a reference to the decisional law of the forum State, or as a reference to the kind of general common law that was an established part of our jurisprudence by the time of § 1988’s passage in 1866.” 436 U.S. at 589 n.5 (citing Swift v. Tyson, 41 U.S. (16 Pet.) 1 (1842)). If Section 1988 incorporates general common law, one could well argue that Section 1988 authorizes federal courts to ignore “inconsistent” state law only when state law takes the form of a state statutory or constitutional provi-sion, and not when – as here – state decisional law replicates

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common law carries a presumption of consistency with federal law, as well as firm footing in Section 1988(a)’s explicit reference to the “common law.” For these reasons, the question whether Idaho’s retention of the common law rule of abatement is “inconsistent with” federal law under Section 1988(a) entails a significantly different analysis than the question whether more-recently enacted state statutes are inconsistent. Accordingly, the Idaho Supreme Court’s decision does not conflict with those of the Second, Sixth, Seventh, and Tenth Circuits.

Petitioner also claims an indirect conflict be-tween the decision below and decisions from the Fifth and Eighth Circuits. Pet. 16.9 But there is no conflict. Like the decision of the Idaho Supreme Court, the decisions of the Fifth and Eighth Circuits cited by petitioner held that a state abatement law was con-sistent with federal law. In Brazier v. Cherry, 293 F.2d 401 (5th Cir. 1961), the Fifth Circuit followed a Georgia statute allowing survival actions in cases of

general common law in 1866. Furthermore, the Court might need to consider whether Section 1988 authorizes a federal court today to replace the general common law in 1866 with some “updated” version. Consideration of that issue would be hin-dered by petitioner’s failure to argue here or below that the common law of abatement has changed since 1866 or that it should now be changed. 9 Petitioner tries to expand the indirect split to include the Eleventh Circuit. But that claim rests not on any decision by the Eleventh Circuit itself but rather on the Eleventh Circuit’s general policy of treating pre-1981 Fifth Circuit decisions as binding. Pet. 17.

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homicide. Id. at 407 n.15. Similarly, in Andrews v. Neer, 253 F.3d 1052 (8th Cir. 2001), the Eighth Circuit applied Missouri’s wrongful death law as consistent with Section 1983. Id. at 1058. Because the decisions of the Fifth and Eighth Circuits upheld the state abatement laws at issue, those decisions are con-sistent with the Idaho Supreme Court’s decision upholding Idaho’s common law abatement approach.

Petitioner nevertheless claims that, under the reasoning supporting the decisions of the Fifth and Eighth Circuits, Idaho’s common law abatement would be inconsistent with federal law. Pet. 16. But because the courts of appeals upheld the state laws in those cases, any statements that those courts made about when a state abatement law may be incon-sistent with federal law are dicta. Moreover, the Idaho Supreme Court and the Fifth and Eighth Circuits all conducted a similar analysis, asking whether a particular state approach should apply to a Section 1983 claim or instead should be disregarded on the ground that it is “inconsistent with” federal law. In making that determination, the Fifth and Eighth Circuits considered whether the particular state law before them would, if applied, defeat Sec-tion 1983’s compensatory and deterrent purposes. See Andrews, 253 F.3d at 1058 (examining the “goals of § 1983”); Brazier, 293 F.2d at 404 (considering the policies underlying Section 1983). So too in this case, the Idaho Supreme Court asked whether Idaho’s common law rule was consistent with the “policies underlying Section 1983 [of ] compensation . . . and prevention of abuses of power” (Pet. App. 13a), and

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concluded that Idaho’s application of common law was consistent with these policies.

Petitioner finally asserts (Pet. 20-21) a conflict between decisions of the state supreme courts of Idaho and Alabama on the one hand, and the federal district courts in Idaho and Alabama on the other hand. Any such conflict does not warrant this Court’s review because the decisions of the district courts do not constitute binding precedent. See Sup. Ct. R. 10. This alleged conflict would also be a particularly weak candidate for review. Assuming the accuracy of the petitioner’s description of the law in those two federal district courts, plaintiffs with such claims can avoid any difficulty from the Idaho and Alabama State Supreme Court decisions by filing instead in federal court. Given that Section 1983 plaintiffs will presumably go to the court where the law is most favorable, it is unclear whether the Idaho Supreme Court will ever again be called upon to address the issue presented in this case.

Petitioner then grasps at straws by arguing that “[i]n a state as large as Idaho, the practical effect may be to force plaintiffs to travel hundreds of miles to a federal courthouse to protect their Section 1983 rights. . . .” Pet. 25-26. While this might have been a problem in horse and buggy days, today the U.S. District Court for the District of Idaho conveniently maintains multiple courthouses throughout the state and allows electronic filing of Section 1983 claims. Indeed, although not mentioned in her petition to this Court, petitioner herself had no difficulty bringing a

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parallel Section 1983 action in the U.S. District Court for the District of Idaho. Hoagland, et al. v. Ada County, et al., No. 1:10-cv-00486-EJL (D. Idaho 2010). She later withdrew it, see id., doc. #3, App. 4, even though she could have proceeded.

In sum, no precedential conflict exists, much less an important one worth this Court’s attention.

II. THE QUESTION OF WHETHER IDAHO

CAN APPLY COMMON LAW TO A SEC-TION 1983 CLAIM IS NOT SUFFICIENTLY IMPORTANT TO MERIT THIS COURT’S REVIEW.

This Court’s review of this case is also not war-ranted because the question presented is of limited importance and does not occur frequently. Only two states have stated that abatement of Section 1983 actions can occur when alleged wrongdoing causes death, and Idaho is the only state that continues to apply the common law abating such actions. This Court should deny review of such a narrow question.

Contrary to petitioner’s claim, the issue in this case does not “arise with distressing frequency.” Pet. 22. That is because, as petitioner briefly ac-knowledges (Pet. 25), virtually all other states no longer apply the common law as Idaho does. Forty-one states and the District of Columbia have clear

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survival statutes.10 In these jurisdictions, Section 1983 actions do not abate upon the plaintiff ’s death. Six states – Indiana,11 Michigan,12 Mississippi,13

10 Alaska Stat. § 09.55.570 (2012); Ariz. Rev. Stat. Ann. § 14-3110 (2012); Ark. Code Ann. § 16-62-101 (West 2013); Cal. Civ. Proc. Code § 377.20 (West 2013); Colo. Rev. Stat. Ann. § 13-20-101 (West 2005); Conn. Gen. Stat. Ann. § 52-599 (West 2013); Del. Code Ann. tit. 10, § 3701 (West 2006); D.C. Code § 12-101 (2013); Fla. Stat. Ann. § 46.021 (West 2006); Ga. Code Ann. § 9-2-41 (West 2003); Haw. Rev. Stat. Ann. § 663-7 (West 2008); Ill. Comp. Stat. Ann. 5/27-6 (West 2013); Iowa Code Ann. § 611.20 (West 1999); Kan. Stat. Ann. § 60-1801 (West 2008); Ky. Rev. Stat. Ann. § 411.140 (West 2006); La. Civ. Code Ann. art. 2315.1 (2002); Me. Rev. Stat. tit. 18, § 3-817 (2012); Md. Code Ann., Cts. & Jud. Proc. § 6-401 (West 2011); Mass. Gen. Laws Ann. ch. 228, § 1 (West 2000); Mont. Code Ann. § 27-1-501 (West 2009); Neb. Rev. Stat. Ann. § 25-1401 (West 2009) (interpreted in Nelson v. Dolan, 434 N.W.2d 25 (Neb. 1989) as allowing survival of personal injury claims); Nev. Rev. Stat. Ann. § 41.100 (West 2000); N.H. Rev. Stat. Ann. §§ 556:9, :10, :11 (2007); N.J. Stat. Ann. § 2A:15-3 (West 2000); N.M. Stat. Ann. §§ 37-2-1, 41-2-1 (West 2013); N.Y. Est. Powers & Trusts § 11-3.2 (McKinney 2008); N.C. Gen. Stat. § 28A-18-1 (West 2003); N.D. Cent. Code Ann. § 28-01-26.1 (West 2008); Ohio Rev. Code Ann. § 2305.21 (West 2004); Okla. Stat. Ann. tit. 12, § 1051 (2000); Or. Rev. Stat. Ann. § 30.075 (West 2013); 42 Pa. Cons. Stat. Ann. § 8302 (West 2007); R.I. Gen. Laws Ann. § 9-1-6 (West 2013); S.C. Code Ann. § 15-5-90 (2005); S.D. Codified Laws § 15-4-1 (2004); Tex. Civ. Prac. & Rem. § 71.021 (West 2008); Utah Code Ann. § 78B-3-107 (West 2009); Vt. Stat. Ann. tit. 14, §§ 1452-1453 (West 2007); Wash. Rev. Code Ann. § 4.20.060 (West 2005); W. Va. Code Ann. § 55-7-8 (West 2002); Wis. Stat. Ann. § 895.01 (West 2006); Wyo. Stat. Ann. § 1-4-101 (West 2007). 11 See Ind. Code Ann. §§ 34-9-3-1, 34-9-3-4, 34-23-1-1 (West 2011); Cahoon v. Cummings, 734 N.E.2d 535, 544 (Ind. 2000). 12 Mich. Comp Laws §§ 600.2921-.2922 (West 2010). 13 Miss. Code Ann. § 91-7-233 (2013); see also Garlock Sealing Technologies, LLC v. Pittman, 2008-IA-01572-SCT, ___

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Missouri,14 Tennessee,15 and Virginia16 – also allow survival actions, but when tortious behavior causes the death, those survival actions merge with wrongful death actions that permit recovery for injuries to both the decedent and the surviving family members. One more state, Minnesota, prohibits survival actions by statute, Minn. Stat. Ann. § 573.01. But the issue is such a rare one that its courts have not yet ruled on whether that statute bars a Section 1983 survival action where the wrongdoing causes the decedent’s death. Presumably this is because Minnesota pro-vides a wrongful death action for the decedent’s heirs, Minn. Stat. Ann. § 573.02, and the substantial com-pensation obtained through that statute is fully adequate to compensate plaintiffs.

In light of the prevailing law allowing survival actions in the overwhelming majority of states, the question presented here can arise in only the two remaining states – Alabama and Idaho. But Alabama permits some survival suits where the wrongdoing causes the decedent’s death, so long as the suit is filed before the death. Ala. Code § 6-5-462. Alabama also provides a wrongful death action for the decedent’s heirs, Ala. Code § 6-5-410, though Alabama does not

So.3d ___, 2010 WL 4009151 at *3-*4 (Miss. 2010); Thornton v. Ins. Co. of N. Am., 287 So.2d 262, 266 (Miss. 1973). 14 Mo. Rev. Stat. §§ 537.020, .080 (2013). 15 Tenn. Code Ann. § 20-5-113 (West 2013). 16 Va. Code Ann. §§ 8.01-25, -56 (West 2013); Centra Health, Inc. v. Mullins, 670 S.E.2d 708, 717-18 (Va. 2009).

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provide for compensatory damages while allowing punitive damages. See Carter v. City of Birmingham, 444 So.2d 373, 375 (Ala. 1983). Only Idaho follows the common law rule of total abatement, barring survival actions in situations such as this case, and instead deterring wrongdoing through a wrongful death action for surviving heirs. E.g., Evans, 796 P.2d at 92. Review of this case would therefore answer a ques-tion relevant only in Idaho.

In an effort to make the issue in this case appear more significant, petitioner points to various state laws imposing limitations or “caps” on damages in survival actions. See Pet. 13-15. But this case does not involve statutory restrictions on damages. It involves the question whether the common law rule of abatement, which prohibits any action in the event of the putative plaintiff ’s death, is inconsistent with Section 1983. It accordingly is a poor vehicle to parse the niceties of the various state caps to determine whether any are inconsistent with Section 1983.

Petitioner also seeks to bolster the importance of the question in this case by claiming that in the last year sixty-seven Section 1983 cases were filed in which the putative plaintiff died. Pet. 24. But that statistic misleadingly refers to the number of claims brought on behalf of decedents nationally, including those in the forty-eight states where the action does not abate. The number of cases arising in the two states that limit survival actions is obviously a small fraction of these cases. For example, according to the Justice Department, in 2011, only 2.5% of jail and

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prison deaths occurred in Alabama and Idaho. U.S. Dep’t of Justice, Mortality in Local Jails and State Prisons, 2000-2011 – Statistical Tables, at 16 tbl. 11 (2013). The balance of local inmate deaths occurred in facilities in jurisdictions that permit survival actions. Petitioner also contends that in 2010 a total of 918 inmates died in custody in local jails. Pet. 24. But only a small fraction would have a viable argument that they died as a result of a civil rights violation.17 In Idaho, for example, counsel are aware of no Section 1983 lawsuits filed (in either federal or state court) since 2010 related to jail deaths.

III. THIS CASE IS A POOR VEHICLE FOR RE-

SOLVING THE QUESTION PRESENTED.

This case is not a good vehicle for resolving the issues discussed in the petition for several reasons. First, the relief sought in the petition is for the estate of the decedent, but petitioner failed to seek review in her capacity as administrator of that estate. Second, petitioner failed to pursue her wrongful death remedy available under Idaho law. Consequently, the record is not well developed to ascertain whether Idaho’s scheme for providing recovery against a wrongdoer in the event of the victim’s death is inconsistent with Section 1983. And third, a decision of this Court is

17 Petitioner errs in claiming that suicide was “the leading cause of death in local jails in 2010.” Pet. 24. In fact, illness caused 52% of local-jail inmate deaths in 2010. Mortality in Local Jails, supra, at 6 tbl. 2.

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likely to be advisory because the trial court correctly dismissed all of the defendants on other grounds.18

A. The Petition Names The Wrong Peti-

tioner.

As evidenced by numerous documents filed in the courts below, the underlying lawsuit was brought and pursued by two distinct plaintiffs: “RITA HOAGLAND, individually, and in her capacity as Personal Repre-sentative of the ESTATE OF BRADLEY MUNROE.” See, e.g., Pet. App. 36a, 38a, 61a, 111a (capitalization in originals). As the case proceeded through the lower courts, each of these two plaintiffs made their own claims and arguments based on their different status: Rita Hoagland pursued a personal Section 1983 claim

18 This case is also ill-suited to resolve the question pre-sented because there is a threshold question that the Idaho Supreme Court did not consider. Petitioner claims that defen-dants violated the Fourteenth Amendment by failing to provide decedent with adequate medical attention while he was de-tained. But that claim seemingly should have been brought under the Fourth Amendment because it challenges the rea-sonableness of decedent’s detainment. See Albright v. Oliver, 510 U.S. 266, 273 (1994) (when a claim implicates the Fourth Amendment, that Amendment, not the due process clause, “must be the guide for analyzing [the] claim”). This Court has not re-solved when a seizure (which would be governed by the Fourth Amendment) ends and when confinement (which may be gov-erned by the due process clause) begins, and it should not pass on that question in the first instance in this case. Because the Fourth Amendment appears to be the appropriate vehicle for petitioner’s claim, any decision the Court renders on petitioner’s Fourteenth Amendment claim would like be advisory.

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as the parent of the decedent and the estate pursued a separate Section 1983 claim on behalf of the dece-dent.

While the petition to this Court presents the claims of the estate, the petition instead lists Hoagland as the petitioner. See Pet. 1 (“Petitioner Rita Hoagland respectfully petitions for a writ of certiorari. . . .”). Based on the proceedings below, and the distinction between plaintiffs Hoagland and the estate, it was necessary for the petition to have been filed by the estate, not Hoagland. See Rule 12.4 (“Parties inter-ested jointly, severally, or otherwise in a judgment may petition separately for a writ of certiorari; or any two or more may join in a petition.”).19 To the extent petitioner may argue (after-the-fact) that she filed the petition in her capacity as personal representative of the estate, it should be noted that Hoagland is not listed as the administrator of the estate, as has been done in similar cases. See, e.g., Jefferson v. City of Tarrant, 522 U.S. 75 (1997) (caption identifying petitioner Jefferson as “administrator of the Estate of Alberta K. Jefferson, Deceased”); cf. Jones v. Hildebrant, 432 U.S. 183, 186 n.4 (1977) (dismissing certiorari as improvidently granted and noting that “[p]etitioner sued individually as the mother of the dec-edent and not as the administratrix of the decedent’s

19 Though petitioner references the estate in her listing of “Parties to the Proceedings Below” (Pet. ii), that is merely an indication of parties at the lower court level, not the parties to the petition.

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estate”). Moreover, this Court’s rules forbid belated adjustments. Sup. Ct. R. 12.4 (“A party not shown on the petition as joined therein at the time the petition is filed may not later join in that petition.”). In short, the petition raises issues concerning a party – i.e., the decedent’s estate – who is simply not a petitioner in this Court.

B. Petitioner’s Failure To Pursue A Wrong-

ful Death Action Deprives The Court Of Critical Context For Resolving The Question Presented.

This case is also a poor vehicle for resolving the question presented because in the courts below petitioner (and the estate) failed to pursue a wrongful death action available under Idaho law. Although common law abates actions brought by a decedent, Idaho law provides parents with a wrongful death action to recover damages for the harm that they suffer because of the wrongful death of their children. Idaho Code § 5-311 (2011). This wrongful death action is designed to serve the same purpose as a survival action under Section 1983. As this Court has ex-plained, although Section 1983 ordinarily serves the two goals of compensating those whose rights are violated and deterring future violations, only the goal of deterrence is relevant after the decedent’s death. See Robertson, 436 U.S. at 592. Idaho’s wrongful death action serves the goal of “deter[ring] wrongful conduct through the imposition of civil liability.” Volk v. Baldazo, 651 P.2d 11, 15 (Idaho 1982). Indeed, the

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Idaho Supreme Court has explained that the cause of action for wrongful death is intended to “alleviate the harsh rule of common law that while a tortfeasor could be held liable for injuring his victim, he was immune from liability if he killed his victim.” Id.

The question of whether the common law is “inconsistent with” Section 1983 will turn on how effectively Idaho’s wrongful death statute achieves Section 1983’s goal of deterrence. Cf. Venerable v. City of Sacramento, 185 F. Supp. 2d 1128, 1131-34 (E.D. Cal. 2002) (holding that state survival statute’s restriction on damages was not “inconsistent with” federal law in light of other remedies available under that statute as well as those available under state’s wrongful death statute). As this Court has recog-nized, because wrongful death actions provide an alternative means for holding a wrongdoer accounta-ble for the death of another, damages under a wrong-ful death action are often duplicative of the damages available under a survival action. See Miles v. Apex Marine Corp., 498 U.S. 19, 35 (1990). For example, one of the principal forms of damages under a wrong-ful death action is loss of economic support that the decedent would have provided. Pfau v. Comair Hold-ings, Inc., 15 P.3d 1160 (Idaho 2000). Similarly, one of the principal forms of damages under a survival action is lost income that the decedent might have earned. J. Stein, Damages and Recovery § 3.8 (1972). Because the support for a parent derives from the income that the decedent might have earned, the loss of support under a wrongful death action is duplicative

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of lost income under a survival action, and it is im-proper to award both types of damages. Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 592 (1974).

Petitioner cites Monroe v. Pape, 365 U.S. 167 (1961), for the proposition that the existence of a state law action does not affect the availability of a Section 1983 action. Pet. 30. But the key statement in Monroe – that where a “federal remedy is supplemen-tary to the state remedy, . . . the latter need not be first sought and refused before the federal one is invoked,” 365 U.S. at 183 – does not establish this proposition. Rather, this statement signifies only that, when a state action exists, a plaintiff need not exhaust it before advancing a federal claim. The statement does not establish that the existence of an alternative means of recovery under state law is irrelevant to whether state law is “inconsistent with” federal law under Section 1988. Indeed, when this Court granted certiorari on a similar issue sixteen years ago in Jefferson v. City of Tarrant, 520 U.S. 1154 (1997), cert. dismissed, 522 U.S. 75, a significant part of the briefing and oral argument was devoted to whether Alabama’s abatement rule taken together with Alabama’s wrongful death action was consistent with Section 1983. See Br. of Petitioners, No. 96-957, at 15-24 (May 15, 1997); Br. of Respondent, No. 96-957, at 29-41 (July 16, 1997); Tr., No. 96-957, at 11-28, 38-51 (Nov. 4, 1997). Here, if this Court grants certiorari, the same kinds of disputes about Idaho’s wrongful death action would necessarily be in play. See, e.g., Pet. 33-34 (arguing that Idaho’s wrongful

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death action is an “inadequate substitute” for a Section 1983 claim). Yet because petitioner did not pursue a wrongful death action below, any briefing and argument on Idaho’s remedial scheme would be purely conjectural.

C. Review Is Unwarranted Because All

of the Defendants Were Appropriately Dismissed On Other Grounds.

Review is also unwarranted because any decision this Court renders is unlikely to change the outcome below. While the trial court initially allowed petition-er’s personal Section 1983 claims to continue, it later dismissed her claims after it found that none of the actions by the defendants violated Section 1983. This ruling would likewise apply to any claim by the estate. Accordingly, any decision the Court might make on abatement here would be in a case where it would ultimately be irrelevant.

In its order of January 20, 2011, the trial court granted summary judgment for Ada County and all defendants sued in their official capacity on the ground that petitioner failed to establish that the Ada County procedures for preventing suicide were so deficient that they reflected deliberate indifference or that there were bad acts among Ada County employ-ees that could support an inference that the named officials condoned their employees’ misconduct. Pet. App. 89a-90a. That order also dismissed the claims against all the defendants named in their individual

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capacities (except one, Johnson) on the ground that the record could not support a finding of deliberate indifference by any of those defendants. Id. at 95a-101a, 106a-110a. In its subsequent order of March 28, 2011, the trial court dismissed the claim against Johnson, based on qualified immunity, explaining that “[a]fter considering all the evidence in the [r]ecord, the Court finds that Johnson acted in an objectively legally reasonable manner when he in-correctly decided that Bradley Munroe was not at imminent risk of suicide. . . .” Id. at 54a. The court concluded that “[a] reasonable social worker . . . would not have thought that he was acting with de-liberate indifference . . . by clearing Munroe from suicide watch.” Id.

Although the petitioner challenged those rulings in the Idaho Supreme Court, there is no reason to doubt the correctness of the lower court’s conclusions. At the very least, all of the respondents are likely entitled to qualified immunity because neither this Court nor the Idaho Supreme Court has decided a case presenting a claim with facts remotely similar to those here. Accordingly, even if this Court were to rule that petitioner is entitled to bring a survival action under Section 1983, petitioner is unlikely to recover under that action. This Court should deny review of a procedural question that makes no dif-ference to the substantive outcome of this case, especially in light of the multiple other considera- tions weighing against certiorari.

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IV. THE LONG-STANDING, COMMON LAW ABATEMENT RULE IS CONSISTENT WITH FEDERAL POLICIES.

The Court should also deny the petition because the decision below is entirely correct. Idaho has simply carried forward the common law rule on abatement – a rule with which Section 1983’s drafters were well familiar. Continuing a well-established common law rule is consistent with the federal poli-cies underlying Section 1983.

As this Court has recognized, the “common law in the United States, like the common law of England, did not allow recovery for an injury which results in death.” Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 206 (1996) (internal quotation marks omitted). Thus, as Justice Harlan explained, “[a]t common law, no person had a legally cognizable interest in the wrongful death of another person, and no person could inherit the personal right of another to recover for tortious injuries to his body.” Glona v. American Guar. & Liab. Ins. Co., 391 U.S. 73, 76 (1968) (Harlan, J., dissenting). See generally Francis B. Tiffany, Death By Wrongful Act (2d ed. 1913); Cooley on Torts 14 (2d ed. 1888). In 1871 – the year in which Section 1983 was enacted – the common law provided no civil remedy for a decedent or his survivors for wrongful death. See, e.g., Georgia R.R. & Banking Co. v. Wynn, 42 Ga. 331, 334 (1871). Indeed, in 1877 – just six years after Section 1983 was enacted – this Court stated that “[t]he authorities are so numerous and so uniform to the proposition, that by the common law

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no civil action lies for an injury which results in death, that it is impossible to speak of it as a proposi-tion open to question.” Mobile Life Ins. Co. v. Brame, 95 U.S. 754, 756-57 (1877).

It was this venerable common law rule that the Idaho Supreme Court applied. The common law has applied in Idaho even before the conclusion of the Civil War. The 1864 session laws of the territory of Idaho received the common law of England as the rule of decision for all Idaho courts. See Idaho Code § 73-116 (2006), Historical Note. On July 3, 1890, Idaho became a state, and its adoption of the common law continued. Id. The common law abatement rule was the basis for the decision below: “At common law in Idaho, a personal tort cause of action abates with the death of the plaintiff.” Pet. App. 13a.

The Court below was correct in concluding that this approach was consistent with the federal civil rights statutes. That Section 1983 supplies no wrong-ful death remedy is underscored by 42 U.S.C. § 1986. Originally enacted along with Section 1983 as part of the Civil Rights Act of 1871, see Act of Apr. 20, 1871, ch. 22, § 6, 17 Stat. 13, Section 1986 creates a remedy against persons who are aware of, and have the power to prevent, conspiracies prohibited by 42 U.S.C. § 1985, but neglect or refuse to do so. Unlike any other provision of the Civil Rights Acts (including Section 1983), Section 1986 explicitly establishes a wrongful death remedy, providing that “if the death of any party be caused by any such wrongful act and neglect, the legal representatives of the deceased shall

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have such action therefor. . . .” 42 U.S.C. § 1986 (em-phasis added).

The absence of any comparable provision govern-ing the contemporaneously-enacted Section 1983 is compelling evidence that the 42d Congress did not intend to create a wrongful death remedy for Section 1983. See Geier v. American Honda Motor Co., Inc., 529 U.S. 861, 898 (2000) (noting presumption that Congress acts intentionally when it includes particu-lar language in one section of a statute but omits it in another). Indeed, Section 1986 confirms that Con-gress knew how to create a wrongful death or surviv-al provision when it wanted to, but simply declined to do so for Section 1983.

The legislative history of Section 1983 does not suggest any different conclusion. The debates over the Civil Rights Act of 1871 do contain references to killings. See, e.g., Pet. 31 (citing several such refer-ences). That the 42d Congress was concerned about “the alarming insecurity of life, liberty, and property in the Southern States,” Wilson v. Garcia, 471 U.S. 261, 276 (1985), however, does not mean that it intended to make Section 1983 a vehicle for wrongful death or survival claims in derogation of the common law. Indeed, none of the comments on which petition-er relies are tied to references to Section 1983. The comments were most likely addressed toward other statutes, such as Section 1985 which does contain a wrongful death provision.

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This Court has recently and repeatedly under-scored that “[o]ne important assumption underlying the Court’s decisions in this area [of Section 1983] is that members of the 42d Congress were familiar with common-law principles, including defenses pre-viously recognized in ordinary tort litigation, and that they likely intended these common-law principles to obtain, absent specific provisions to the contrary.” Rehberg v. Paulk, 132 S.Ct. 1497, 1502 (2012) (quot-ing Newport v. Fact Concerts, Inc., 453 U.S. 247, 258 (1981)). Accordingly, where a doctrine “was well established at common law by 1871, [this Court] proceed[s] on the familiar assumption that ‘Congress would have specifically so provided had it wished to abolish the doctrine.’ ” Fact Concerts, 453 U.S. at 263 (quoting Pierson v. Ray, 386 U.S. 547, 555 (1967)).

Nor is there any inconsistency between Idaho’s approach to wrongful death cases and the general policies of Section 1983 – “compensation of persons injured by deprivation of federal rights and preven-tion of abuses of power by those acting under color of state law.” Robertson, 436 U.S. at 591. The survival action that the estate attempted to pursue below sought recovery for injuries to the decedent, not for injuries to the survivors. Because a decedent cannot be compensated for his injuries, any recovery on his behalf would require awarding damages under Sec-tion 1983 “for noncompensatory damages measured by the jury’s perception of the abstract ‘importance’ of a constitutional right” – something which this Court has held Section 1983 “leaves no room for.” Memphis

35

Community Sch. Dist. v. Stachura, 477 U.S. 299, 309-310 (1986).

Nor does Idaho’s approach conflict with Section 1983’s general policy of deterrence. In order to find that Idaho’s abatement of survival actions has even a marginal influence on the behavior of counties like Ada County, this Court would have to disregard the “reasonable assumption” that government officials are motivated “by concern for the Government’s in-tegrity,” Carlson v. Green, 446 U.S. 14, 21 (1980), and assume instead that Idaho counties (1) contemplate illegal activity in violation of Section 1983; (2) are aware of the intricacies of Idaho’s abatement and wrongful death doctrines and their interaction with Section 1988’s remedial scheme; (3) would inten-tionally kill an individual or permit him to die, rather than violate his federal rights to a lesser extent, in order to avoid liability under Section 1983; and (4) would do so fully aware that they may still be sub-jected to liability under a state law action for wrong-ful death.20 This Court has never been willing to make such “far-fetched assumptions,” Robertson, 436 U.S. at 593 n.10, even when the challenged remedial rule had the effect of substantially reducing, e.g., Fact Concerts, 453 U.S. at 268-70, or barring altogether, e.g., Robertson, 436 U.S. at 592, the recovery availa-ble against a state actor under Section 1983. It should

20 In addition, the county would have to assume that it would be sued only in Idaho state court, not Idaho federal court. See page 18, supra.

36

be particularly unwilling to do so when nothing suggests that deterrence of wrongful actions is inade-quate. See page 23, supra (not even a single lawsuit alleging wrongful actions leading to death in Idaho jails filed in the last three years).

This reasoning is especially compelling when, as here, the petitioner has failed to avail herself fully of all of her avenues of redress. Quite unlike the statu-tory scheme challenged in Robertson, the Idaho scheme does not deny plaintiffs any avenue of redress under Section 1983. Indeed, while petitioner did not correctly pursue her wrongful death claim, Idaho plaintiffs may clearly seek and obtain damages through such a claim. While the recovery available in a wrongful death claim is not unlimited, courts are not at liberty simply to supplement federal statutes as they see fit. As this Court has recognized, the natural consequence of Section 1988 is that “state law will often provide the content of the federal remedial rule,” and that “there will not be nationwide uni-formity on these issues.” Robertson, 436 U.S. at 594 n.11 (emphases added). In short, the Idaho Supreme Court properly applied common law to petitioner’s claims.

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37

CONCLUSION

The Court should deny the petition.

Respectfully submitted,

RICHARD SEAMON Professor of Law UNIVERSITY OF IDAHO COLLEGE OF LAW 875 Perimeter Drive, Mail Stop 2321 Moscow, ID 83844 (208) 885-7061

GREG H. BOWER Ada County Prosecuting Attorney JAMES K. DICKINSON SHERRY A. MORGAN RAY J. CHACKO CIVIL DIVISION 200 W. Front St. Boise, ID 83702 (208) 287-7700

PAUL G. CASSELL Counsel of Record F. ANDREW HESSICK MICHAEL J. TETER APPELLATE LEGAL CLINIC S. J. QUINNEY COLLEGE OF LAW AT THE UNIVERSITY OF UTAH 332 S. 1400 E., Room 101 Salt Lake City, UT 84112 (801) 585-5202 cassellp@law.utah.edu

Counsel for Respondents Ada County, Idaho, et al.

App. 1

U.S. District Court District of Idaho (LIVE Database)

Version 5.1.1 (Boise-Southern) CIVIL DOCKET FOR CASE #: 1:10-cv-00486-EJL

Hoagland v. Ada County et al Assigned to: Judge Edward J. Lodge Case in other court: Fourth Judicial District of Idaho, Ada County, CV-IE-08-20235 Cause: 42:1983 Civil Rights Act

Date Filed: 09/24/2010Date Terminated: 11/18/2010 Jury Demand: PlaintiffNature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff

Rita Hoagland Individually, and in her capacity as Personal Representative of the Estate of Bradley Munroe

represented byDarwin LaVor OversonJones & Swartz PLLC 1673 West Shoreline Dr.Suite 200 Boise, ID 83702 208-489-8989 Fax: 208-489-8988 Email: darwin@ jonesandswartzlaw.comLEAD ATTORNEY ATTORNEY TO BE NOTICED

App. 2

Eric B SwartzJones & Swartz PLLC PO Box 7808 Boise, ID 83707-7808 (208) 489-8989 Fax: (208) 489-8988 Email: eric@ jonesandswartzlaw.comLEAD ATTORNEY ATTORNEY TO BE NOTICED

Joy M Vega Jones & Swartz PLLC P O Box 7808 Boise, ID 83707-7808 208-489-8989 Fax: 208-489-8988 Email: joy@ jonesandswartzlaw.comATTORNEY TO BE NOTICED

V.

Defendant

Ada County A Political Subdivision of the State of Idaho

Defendant

Gary Raney Ada County Sheriff

Defendant

Linda Scown

App. 3

Defendant

Kate Pape

Defendant

Steven Garrett M.D.

Defendant

Michael E Estess M.D.

Defendant

Ricky Lee Steinberg

Defendant

Karen Barrett

Defendant

Jenny Babbitt

Defendant

James Johnson

Defendant

Jeremy Wroblewski

Defendant

David Weich

Defendant

Lisa Farmer

Defendant

Jamie Roach

Defendant

John Does 1-10

App. 4

Date Filed # Docket Text

09/24/2010 1 COMPLAINT entitled Complaint for Damages and Demand for Jury Trial against Ada County, Ada County Sheriff, Jenny Babbitt, Karen Barrett, Michael E Estess, Lisa Farmer, Steven Garrett, James Johnson, Kate Pape, Jamie Roach, Linda Scown, Ricky Lee Steinberg, David Weich, Jeremy Wroblewski ( Filing fee $ 350 receipt number 0976-657180.), filed by Rita Hoagland. (Attachments: # 1 Cover Sheet)(Overson, Darwin)

10/05/2010 2 LITIGATION ORDER- Telephonic Scheduling Conference set for 1/11/2011 09:30 AM in Boise Cham-bers before Judge Edward J. Lodge.. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks)

11/18/2010 3 NOTICE of Voluntary Dismissal by Rita Hoagland (Overson, Darwin)

App. 5

STATUTORY APPENDIX

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

Every person who, under color of any statute, ordi-nance, regulation, custom, or usage, of any State or Territory or the District of Columbia, 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 immun-ities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

42 U.S.C. 1985 – Conspiracy to interfere with civil rights

(1) Preventing officer from performing duties

If two or more persons in any State or Territory conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof; or to induce by like means any officer of the United States to leave

App. 6

any State, district, or place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his prop-erty so as to molest, interrupt, hinder, or impede him in the discharge of his official duties;

(2) Obstructing justice; intimidating party, witness, or juror

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 prop-erty on account of his having so attended or testified, or to influence the verdict, presentment, or indict-ment 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 impeding, 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 attempt-ing to enforce, the right of any person, or class of persons, to the equal protection of the laws;

App. 7

(3) Depriving persons of rights or privileges

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; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal man-ner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy 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 recov-ery of damages occasioned by such injury or depriva-tion, against any one or more of the conspirators.

App. 8

42 U.S.C. 1988 – Proceedings in vindication of civil rights

(a) Applicability of statutory and common law

The jurisdiction in civil and criminal matters con-ferred on the district courts by the provisions of titles 13, 24, and 70 of the Revised Statutes for the protec-tion 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 stat-utes of the State wherein the court having jurisdic-tion of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the 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.

(b) Attorney’s fees

In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92–318 [20 U.S.C. 1681 et seq.], the Religious Freedom Restoration Act of 1993 [42 U.S.C. 2000bb et seq.], the Religious Land Use and Institutionalized Persons Act of 2000 [42 U.S.C. 2000cc et seq.], title VI of the Civil Rights Act

App. 9

of 1964 [42 U.S.C. 2000d et seq.], or section 13981 of this title, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity such officer shall not be held liable for any costs, including attorney’s fees, unless such action was clearly in excess of such officer’s jurisdiction.

(c) Expert fees

In awarding an attorney’s fee under subsection (b) of this section in any action or proceeding to enforce a provision of section 1981 or 1981a of this title, the court, in its discretion, may include expert fees as part of the attorney’s fee.