M.D. Tennessee Notes Split Re Standing for Immediate Family Members to Bring § 1983 Suits for Own Injuries
Per Kinzer v. Metro. Gov’t of Nashville, --- F.Supp.2d ----, 2006 WL 2642605 (M.D. Tenn. Sept. 11, 2006):
Defendants contend that the loss-of-consortium claim brought by Plaintiff Mona Lisa Kinzer must be dismissed as a matter of law pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, because such a claim is not cognizable "under" 42 U.S.C. § 1983. As discussed below, the Court finds that there is no binding case law in this circuit requiring dismissal of Ms. Kinzer's claim for loss of consortium, and that it is permissible as a pendant state-law claim. Defendants' motion will therefore be denied.
. . .
The issue of whether the family members themselves could bring a § 1983 action based upon the same injuries was not at issue there, nor is it at issue in Ms. Kinzer's case. [FN4]
FN4. Although there is a split among the federal circuit courts as to whether the immediate family members of a person killed by unconstitutional government action can recover for their own injuries, those courts that do not allow such recovery are nonetheless uniform in their recognition that family members may nonetheless have standing under state wrongful-death statutes to recover for their own injuries, including loss-of-consortium type injuries if such are permitted by state law. See, e.g., Andrews v.. Neer, 253 F.3d 1052, 1064 (8th Cir.2001) (denying victim's widow recovery for her own injuries under § 1983, noting that the widow had not pursued her own separate wrongful-death claim under which such damages might have been recoverable); Berry v. City of Muskogee, 900 F.2d 1489, 1507 (10th Cir.1990) (holding that wrongful-death-type damages (such as loss of consortium) were not authorized under §§ 1983 and 1988, but noting that wrongful death claims were not foreclosed by § 1983 claims but "remain[ed] as pendent state claims").