Volume 86

Michelle R. Gough

The availability of survival and wrongful death damages in 42 U.S.C. § 1983 cases is an area that involves both changing precedent and unaddressed issues within the Seventh Circuit. In both of the aforementioned types of claims, the cases will necessarily involve the tangled application of both state and federal law, and the Seventh Circuit and other federal courts of appeals have struggled to provide a clear, coherent approach to these issues. Indeed, there is strong disagreement among the circuits. Dean Steven H. Steinglass offered the most comprehensive discussion of the nature of both types of claims under § 1983 in Wrongful Death Actions and Section 1983, which was published in the Indiana Law Journal in 1985. However, a subsequent shift in precedent in the Seventh Circuit has significantly impacted the nature and availability of claims under the circumstances giving rise to wrongful death and survival claims. This Article provides an updated discussion of the contours for wrongful death and survival claims asserted under § 1983 by Indiana claimants proceeding in the Seventh Circuit for damages when a loved one dies as the result of a state actor’s behavior that violated § 1983 or when a loved one dies with a pending § 1983 claim.

Full article (.pdf) available here.