D.N.J. Considers Whether § 1983 Establishes a Cause of Action for Loss of Consortium

Per Norcross v. Town of Hammonton, Slip Copy, 2006 WL 1995021 (D.N.J. Jul 13, 2006):

Defendants argue that Plaintiff Robert Singletary cannot recover for loss of his wife's companionship and society after her arrest because 42 U.S.C. § 1983 does not provide for derivative claims, such as loss of consortium.

Although the Third Circuit has yet to resolve the issue, district courts within the Circuit are split over whether § 1983 establishes a cause of action for loss of consortium. See, e.g., Colburn v. City of Philadelphia, 2001 WL 872960, *2 (E.D.Pa.2001) (rejecting § 1983 claim for loss of consortium without addressing possible deprivation of plaintiff spouse's constitutional rights); Ballas v. City of Reading, 2001 WL 73737 at *7 (E.D.Pa.2001) (same); Wiers v. Barnes, 925 F.Supp. 1079, 1095 (D.Del.1996) (same); Quitmeyer v. SEPTA, 740 F.Supp. 363, 370 (E.D.Pa.1990) (same); but see Pahle v. Colebrookdale Twp., 227 F.Supp.2d 361, 380-81 (E.D.Pa.2002) (permitting consortium claim under § 1983); Brodlic v. City of Lebanon, 2005 WL 2250840 *8 (M.D.Pa.2005) (same).

...

[V]arious Circuit Courts have declined to find a constitutional right to consortium, on the grounds that “the United States Supreme Court has never held that the protections of substantive due process extend to claims based on governmental action which affects the family relationship only incidentally.” Shaw v. Stroud, 13 F.3d 791, 805 (4th Cir.1994) (rejecting plaintiff wife's argument that she had a substantive due process claim arising from the death of her husband); Niehus v. Liberio, 973 F.2d 526, 534 (7th Cir.1992) (“The right to a husband's assistance in raking leaves is not a liberty protected by the Fourteenth Amendment.”); Stallworth v. City of Cleveland, 893 F .2d 830, 838 (6th Cir.1990) (“[T]the relevant jurisdictional statute, 42 U.S.C. § 1983, does not reach [plaintiff's] claim of loss of consortium.”). While the Supreme Court has recognized constitutional protection for “rights to marry, to have children, to direct the education and upbringing of one's children, to marital privacy, to use contraception, to bodily integrity, and to abortion,” the Court has never sanctioned constitutional protection of consortium. Id. (citations omitted).

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This Court now finds that there exists no constitutional interest in the consortium of one's spouse and deigns to create such a right.