WELLS V. COUNTY OF VALENCIA, 1982-NMSC-048,
98 N.M. 3, 644 P.2d 517 (S. Ct. 1982)
ABE WELLS, Plaintiff,
vs.
COUNTY OF VALENCIA, BILL HOLLIDAY, ALLAN OTTS LAMM, GREGG
LYONS, and JOE DOE I, II, III, IV and V, Defendants.
SUPREME COURT OF NEW MEXICO
1982-NMSC-048, 98 N.M. 3, 644 P.2d 517
CERTIFICATION FROM UNITED STATES
DISTRICT COURT, CIV-80-0153 C
Motion for Rehearing denied May 7, 1982
Lawrence P. Zamzok, Davis & Dempsey,
Philip B. Davis, Albuquerque, New Mexico, for Plaintiff.
Keleher & McLeod, Henry Narvaez,
Albuquerque, New Mexico, for Defendants.
New Mexico Trial Lawyers Association,
Leof T. Strand, Albuquerque, New Mexico, Jeff Bingaman, Attorney General, John
W. Cassell, Special Assistant Attorney General, Santa Fe, New Mexico, George R.
"Pat" Bryan, III, City Attorney, Timothy V. Flynn O'Brian, Assistant
City Attorney, Albuquerque, New Mexico, for Amici Curiae.
Sosa, S.J., wrote the opinion. WE CONCUR:
MACK EASLEY, Chief Justice, H. VERN PAYNE, Justice.
{*5} SOSA, Senior
Justice.
{1} Plaintiff filed suit in
federal district court, alleging that he was placed alone in a completely dark
cell with an unprotected hole in the center of the cell floor, and that he
tripped in the hole and sustained severe and permanent neurological injuries.
The suit was filed for damages under 42 U.S.C. § 1983 (1976) for cruel and
unusual punishment in violation of U.S. Const. amend. VIII, and for damages for
personal injury under the New Mexico Tort Claims Act, §§ 41-4-1 through
41-4-29, N.M.S.A. 1978 (Orig. Pamp. & Cum. Supp. 1981).
{2} The action before us is
brought pursuant to the provisions of Section
34-2-8, N.M.S.A. 1978 (Repl.
Pamp. 1981), based upon certification by The Honorable Santiago E. Campos, the
United States District Judge presiding in Civil Action Number 80-0153 C in the
United States District Court for the District of New Mexico, entitled
Abe
Wells v. County of Valencia, et al. In that suit, there is a controlling
question of New Mexico law as to which there is no New Mexico authority.
{3} The question for our
consideration, as stated by Judge Campos in his Certificate, is:
Does the New Mexico Tort Claims Act, Section 41-4-1, et
seq., N.M.S.A. 1978, prohibit a plaintiff from bringing an action for
damages under the New Mexico Tort Claims Act against a governmental entity or
public employee where the plaintiff also pursues, by reason of the same
occurrence or chain of events, an action against the same entity or employee
pursuant to [the] Federal Civil Rights Act, 42 U.S.C. Section 1983?
Applying statutory construction principles, we answer the
certified question in the negative.
{4} We begin our analysis
with the exclusiveness of remedy provision of the Tort Claims Act. Section
41-4-17(A), N.M.S.A. 1978, provides in pertinent part:
A. The Tort Claims Act [41-4-1 to 41-4-25 NMSA 1978] shall be
the exclusive remedy against a governmental entity or public employee for
any tort for which immunity has been waived under the Tort Claims Act and
no other claim, civil action or proceeding for damages, by reason of the same
occurrence may be brought against a governmental entity or against the
public employee or his estate whose act or omission gave rise to the suit or
claim.... [Emphasis added.]
{5} Plaintiff contends that,
since the above provision makes the Tort Claims Act the exclusive remedy for
"any tort" for which immunity has been waived, the Legislature did
not intend to make the Act the exclusive remedy for a constitutional violation.
We agree with this contention, since not all tortious conduct amounts to a
deprivation of constitutional rights.
{6} The federal remedy for
damages arising out of a constitutional violation by a person acting under
color of state law is 42 U.S.C. § 1983. However, Section 1983 is only intended
to compensate for injuries caused by the deprivation of a constitutional right,
Carey v. Piphus, 435 U.S. 247, 98 S. Ct. 1042, 55 L. Ed. 2d 252 (1978);
it is not intended to be a remedy for tortious conduct,
Parratt v. Taylor,
451 U.S. 527, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981). It is recognized that a
Section 1983 action is a species of tort liability, and that the common law of
tort damages will be a starting point for Section 1983 damages; however, common
law tort rules may not provide a complete solution in every Section 1983 case.
Carey
v. Piphus, supra. Not all tortious conduct amounts to a constitutional
deprivation.
Id.; Parratt v. Taylor, supra; Fearon v. Commonwealth of
Virginia, 383 F. Supp. 542 (W.D.Va. 1974). As more particularly
{*6} applied to this case, not all tortious
conduct subject to liability under state law amounts to "cruel and unusual
punishment" in violation of U.S. Const. amend. VIII, which is subject to
liability under Section 1983.
See Howell v. Cataldi, 464 F.2d 272 (3d
Cir. 1972). There must be a "deliberate indifference to a prisoner's
serious illness or injury" on the part of a governmental entity to
constitute a form of cruel and unusual punishment.
Estelle v. Gamble,
429 U.S. 97, 105, 97 S. Ct. 285, 291, 50 L. Ed. 2d 251 (1976).
{7} Thus, the United States
Supreme Court recognizes that, although a Section 1983 action can grow out of
tortious conduct, the two are distinct concepts compensable under different
laws. Tortious conduct which does not amount to a constitutional violation does
not state a cause of action under Section 1983, but may be fully compensable
under a state remedy for a tortious loss.
See Parratt v. Taylor, supra.
In the case at bar, plaintiff's allegations may not be compensable under
Section 1983, but may be compensable under the Tort Claims Act.
{8} Indeed, the New Mexico
Legislature recognizes that a tort is separate and distinct from a
constitutional deprivation. The Legislature, pursuant to the Tort Claims Act,
requires that a governmental entity or public employee be defended against a
claim for any tort
or any violation of property rights or any rights,
privileges or immunities secured by the Constitution of the United States. §
41-4-4(B), N.M.S.A. 1978 (Cum. Supp. 1981). Section
41-4-12, N.M.S.A. 1978,
waives immunity for certain specified torts and for the violation of
constitutional rights when caused by law enforcement officers.
{9} The Legislature also
acknowledges that a constitutional deprivation may be remedied in a
jurisdiction other than New Mexico. Section 41-4-20(A)(1)(b), N.M.S.A. 1978
(Cum. Supp.1981), provides coverage for every "risk" for which
immunity has been waived under the Tort Claims Act, including "excess"
liability for damages arising under the substantive law of a jurisdiction other
than New Mexico, including the United States. Since the Legislature
distinguishes a tort from a constitutional violation, it is reasonable to
presume that they recognize the existence of a Section 1983 remedy for such
violations.
{10} However, this analysis
does not necessarily answer the contention of defendants. Defendants contend
that Section 41-4-17 is clear and unambiguous and means that, once a plaintiff
brings suit outside of the Tort Claims Act, the state withdraws its waiver of
immunity for torts under the Act and cannot later be sued for tortious conduct
arising out of the same occurrence, the subject of the first suit. Thus, as in
this case, if a plaintiff files suit against a governmental entity or public
employee under Section 1983 for deprivation of his constitutional rights, the
plaintiff cannot bring an action under the Tort Claims Act for a tort arising
from the same occurrence.
{11} In construing a statute,
we must do so with the ultimate purpose of ascertaining and giving effect to
the manifest intent of the Legislature. §
12-2-2, N.M.S.A. 1978. We must keep
in mind that the Legislature is presumed to have enacted the statute within the
bounds of the constitution, and, to that end, we must so construe the statute.
In
re Santillanes, 47 N.M. 140,
138 P.2d 503 (1943). We must not give the
statute its literal reading if such a reading would lead to an injustice,
absurdity or contradiction.
State v. Nance, 77 N.M. 39,
419 P.2d 242
(1966),
cert. denied, 386 U.S. 1039, 87 S. Ct. 1495, 18 L. Ed. 2d 605
(1967). As particularly applied to this case, we must strictly construe the
Tort Claims Act, since it is in derogation of one's common law right to sue for
negligence.
See Methola v. County of Eddy, 95 N.M. 329,
622 P.2d 234
(1980).
{12} We hold that the
Legislature did not intend to condition its waiver of sovereign immunity for
certain torts by prohibiting a plaintiff's federal rights. The denial of a
plaintiff's federal law rights by a state would be in violation of the
supremacy clause of the United States Constitution, which states:
{*7} This
Constitution, and the Laws of the United States which shall be made in
Pursuance thereof... shall be the supreme Law of the Land; and the Judges in
every State shall be bound thereby, any Thing in the Constitution or Law of
any State to the Contrary notwithstanding. [Emphasis added.]
U.S. CONST. art. VI, cl. 2. See Sherbert v. Verner,
374 U.S. 398, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963) (state cannot indirectly
force a person to abandon his precepts of first amendment rights in order to
qualify for state benefits); see McCulloch v. Maryland, 17 U.S. (4 Wheat.)
316, 4 L. Ed. 579 (1819) (states may not burden the operations of the
constitutional laws of Congress enacted to carry out the powers vested in the
national government).
{13} It is beyond dispute
that the federal remedy under Section 1983 for deprivation of constitutional
rights is supplementary to a state remedy.
See, e.g., Monroe v. Pape,
365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961);
Bonner v. Coughlin,
517 F.2d 1311 (7th Cir. 1975);
Lopez v. Williams, 372 F. Supp. 1279
(S.D. Ohio 1973),
aff'd, Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729, 42
L. Ed. 2d 725 (1975). Although we recognize that Section 41-4-17(A) does not
per
se prohibit the bringing of a federal action, if given the literal reading
proferred by defendant, the Act has a sufficient chilling effect so as to
inherently prohibit the bringing of a federal cause of action. For example, the
conduct of the defendants in placing the plaintiff in an unlit cell with a hole
in the center of the cell floor may or may not constitute cruel and unusual
punishment; however, the action may amount to the tort of negligence. If we
were to give Section 41-4-17 its literal reading, then a plaintiff who takes a
Section 1983 action to federal court and does not prevail would be prohibited
from bringing an action in state court. The effect would be that a plaintiff
who would lose his right to recover damages resulting from a tort compensable
only under state law would choose not to challenge a possible deprivation of
his federal constitutional rights for which unlimited recovery is provided,
see
§ 1983.
{14} The Legislature cannot
enact a law which would have the practical effect of depriving a party of his
rights secured by the United States Constitution.
See Mountain Timber Co. v.
Washington, 243 U.S. 219, 37 S. Ct. 260, 61 L. Ed. 685 (1917). Keeping in
mind the presumption that the Legislature enacts constitutional statutes, we
conclude that the Legislature did not intend to condition the state's waiver of
sovereign immunity on a plaintiff's forbearance of his federal constitutional
rights. Such a construction would lead to an unconstitutional and unjust
result.
{15} Also, since Section 1983
is supplementary to state remedies, a plaintiff can first file suit in state
court under the Tort Claims Act, obtain a favorable judgment, and then proceed
to federal court under Section 1983 for deprivation of constitutional rights.
However, if given the reading proferred by the defense, an attorney could not
file first or simultaneously in federal court under Section 1983 and then
proceed to state court. The literal reading of Section 41-4-17, as proferred by
the defense, would lead to an injustice and procedural absurdity. We cannot
construe the Tort Claims Act in such a fashion when a just and reasonable
alternative construction exists.
See State v. Nance, supra.
{16} The Tort Claims Act does
not prohibit a plaintiff from bringing an action for damages under the Tort
Claims Act where the plaintiff also pursues, by reason of the same occurrence,
an action against the same government under 42 U.S.C. § 1983.
{17} In those cases where
tort damages will constitute a portion of the damages for deprivation of a
constitutional right, general principles against double recovery will prevail.
WE CONCUR: EASLEY, Chief Justice, and PAYNE, Justice.