concurring in part and dissenting in part.
The majority's opinion is correct up to Issue II, part B. However, it finds that a 42 U.S.C. § 1983 claim does not survive the death of Popplewell because the claim is barred by IC. 84-1-1-2, the Indiana wrongful death survival statute. The majority errs by relying on a series of cases which find that § 1988 actions are categorized as "a personal injury claim," but fails to see that all of these cases involved state statutes of limitations questions. In these cases, the question was: Which state stat*707ute of limitations applied in a § 1983 case? Federal courts almost uniformly held that, because § 1983 contains no statute of limitations and because a § 1983 claim is similar to a personal injury claim, state statutes of limitations pertaining to personal injury actions applied. In the instant case, there is no statute of limitations question, rather the question is: Can a state wrongful death statute bar a federally created cause of action under § 1983? The answer is no.
The controlling law in this section is a Tth Circuit case, Bell v. City of Milwaukee (7th Cir.1984), 746 F.2d 1205. In Bell, the decedent's siblings brought an action for themselves, decedent's estate, and the estate of decedent's father for the wrongful and fatal shooting of decedent and a subsequent cover-up by the various defendants. The jury awarded decedent's estate $100,-000 in compensatory damages. The court examined the Wisconsin wrongful death statutes and noted that neither statute, like Indiana's, permitted recovery for loss of the decedent's life itself. The court then held that Wisconsin's restrictive damages limitation was inconsistent with the policies underlying § 1988, especially its deterrence function. The killing itself was the unconstitutional act, an act that should be deterred. Thus, the decedent's estate could not be precluded by state law from recovering damages in a federally created cause of action for the loss of his life.
As the Fifth Circuit observed in Brazier v. Cherry (5th Cir.1961), 293 F.2d 401, cert. denied sub nom. 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 186, "it defies history to conclude that Congress purposely meant to assure to the living freedom from such unconstitutional deprivations, but that, with like precision, it meant to withdraw the protection of civil rights statutes against the peril of death." Id. at 404. A similar result was reached by the Tenth Circuit in Berry v. City of Muskogee (10th Cir.1990), 900 F.2d 1489, analyzing the affect of Oklahoma survival law on § 1983 actions.
In summary, it is well settled that a § 1983 claim, a federally created cause of action, cannot be abrogated by a state survival statute. Therefore, the § 1983 claim should still go forward.