In this action, which is generally subject to the Oregon Tort Claims Act (OTCA), ORS 30.260 to ORS 30.300, plaintiff asserts a violation of 42 USC § 1983.1 He alleges in his first claim that, on September 19,1982, defendants Saylor, Blackman, Hill, Boehmer and Peterson physically and verbally assaulted him, in violation of his rights under the Fourth, Fifth and Fourteenth Amendments to the federal constitution. The individual defendants, except Peterson, were at that time deputies of the Multnomah County Sheriff; Peterson was an officer in the Gresham Police Department.2 Plaintiff alleges that, as a result of the alleged attack, he suffered general damages of $110,000; in addition, he alleges entitlement to punitive damages and attorney fees.
The trial court dismissed the first claim when plaintiff failed to replead after the court granted defendants’ motion to strike plaintiffs allegations of general damages in excess of $100,000, punitive damages and attorney fees. The motion was granted on the ground that plaintiffs remedy against the individual defendants is subject to ORS 30.270, which limits the liability of public bodies and their officials, employes and agents acting within the scope of their employment to $100,000 per claimant for all claims arising out of a single accident or occurrence, prohibits the award of punitive *483damages and is silent with respect to attorney fees.3 The court certified the dismissal of the first claim as final, pursuant to ORCP 67B, and plaintiff appeals. We affirm in part and reverse in part.
On appeal, plaintiff contends generally that ORS 30.270 is not applicable to a section 1983 claim. The specific errors which he assigns are directed at the striking of his allegations relating to punitive damages, compensatory damages in excess of $100,000 and attorney fees.4
We held in Nelson v. Lane County, 79 Or App 753, 764-66, 720 P2d 1291 (1986), aff’d 304 Or 97, 743 P2d 692 (1987), that the proscription of punitive damages in ORS 30.270(2) is applicable to section 1983 claims brought under OTCA pursuant to former ORS 30.265(1). We concluded that neither section 1983 nor the cases construing it provide a *484“basis for concluding that Congress intended section 1983 to preempt the Oregon statutory direction that its courts not award punitive damages in actions against its employes.” 79 Or App at 766. That holding in Nelson is not controlling precedent, because the Supreme Court concluded on review that the question of whether punitive damages are awardable did not have to be reached in the case. 304 Or at 111. However, we conclude now that our holding and our reasoning in Nelson were correct, and we adhere to them. Plaintiff may not recover punitive damages. Our reasoning in Nelson applies equally to plaintiffs quest for compensatory damages in excess of the limits established by ORS 30.270, and the trial court correctly ruled that he is not entitled to seek damages exceeding $100,000.
However, he may seek attorney fees. We said in Kay v. David Douglas Sch. Dist. No. 40, 79 Or App 384, 395, 719 P2d 875 (1986), rev’d on other grounds, 303 Or 574, 738 P2d 1389 (1987): “The right to attorney fees under [42 USC] section 1988[5] * * * is regarded by the United States Supreme Court as ‘an integral part of the remedies necessary to obtain’ compliance with section 1983 [citing Maine v. Thiboutot, 448 US 1, 11, 100 S Ct 2502, 65 L Ed 2d 555 (1980)].” We then held that the plaintiffs in Kay were entitled to seek attorney fees. This case is different in that Kay was a declaratory judgment action in which a section 1983 claim was advanced and, although they should have, the parties and the courts did not treat the action as being subject to OTCA. That distinction does not call for a different result. Section 1988 expressly provides for attorney fee awards in section 1983 actions. Although there would be no basis for an award of fees under Oregon law, the express language of section 1988 is preemptive. The trial court erred by striking the claim for attorney fees.
Some comment about the dissents is necessary. They both begin with the premise that, because section 1983 claims against individual defendants could have been brought in the *485circuit courts before ORS 30.265(1) was amended to provide that section 1983 violations are “torts” that are subject to OTCA, such claims continued to be cognizable by Oregon courts independently of OTCA after that provision was enacted. Judge Young would hold that a plaintiff has the choice of proceeding either under OTCA or under the circuit court’s “general jurisdiction” and, apparently, that OTCA’s liability limits are applicable only to plaintiffs who choose the statutory route. He then reaches the novel, to say the best about it, conclusion that, although this plaintiff pleaded his claim under OTCA, some of his arguments to the trial court and to us suggest that he really meant to proceed independently of the statute, and we should therefore reverse and remand the trial court’s dismissal of the OTCA claim which plaintiff did bring so that he can now consider whether to bring a new and different claim instead.
Judge Buttler’s dissent is more direct. He would hold, plainly and simply, that section 1983 claims are federally created and that “plaintiff may maintain that action free of the limits imposed by OTCA.” 88 Or App at 489. Judge Buttler also concludes that federal law preempts the liability limitations of OTCA in connection with section 1983 claims.
We do not agree with the view of both dissents that the circuit court retained authority to entertain section 1983 claims independently of OTCA after ORS 30.265(1) was amended to include them expressly. Although Judge Buttler correctly states that OTCA is not a jurisdictional act, in the traditional sense, and that it does not create causes of action, it is an exercise of the legislature’s undoubted authority to make certain actions subject to procedural and substantive requirements. Judge Buttler’s dissent acknowledges as much with respect to plaintiffs claim against the city and the county, which he states “is subject, without qualification, to the damage limitations in [OTCA].” 88 Or App at 487. It is equally clear that the legislature did purport to limit the liability of government employes as well as employers through OTCA and that it can and did make the provisions of OTCA applicable to section 1983 claims brought in state court. By its terms, OTCA was applicable to such claims when plaintiff instituted this action, and it provided as exclusive a vehicle for asserting section 1983 claims against governmental bodies *486and employes as it did for bringing any other tort claims against them.
The closer and decisive question in this case, as we have indicated, is not whether OTCA applies by its terms to plaintiffs section 1983 claim, but whether the state is precluded by federal law from applying OTCA according to its terms in section 1983 actions. Judge Buttler answers that question by postulating that “[entitlement to [punitive and unlimited compensatory] damages is a part of the federal right” and must accordingly accompany the federal claim when it is made in a state court. 88 Or App at 489.
Everyone agrees that OTCA places limits on damages which federal law does not impose in section 1983 claims tried in federal courts. The problem with Judge Buttler’s reasoning is that it begins and ends with the proposition that federal and state law are different. However, that difference alone does not and cannot constitute preemption. There must also be an affirmative federal intent that its law prevail. As the United States Supreme Court stated in California Federal S & L Assn v. Guerra, 479 US_, _, 107 S Ct 683, 93 L Ed 2d 613, 623 (1987), “In determining whether a state statute is pre-empted by federal law and therefore invalid under the Supremacy Clause of the Constitution, our sole task is to ascertain the intent of Congress.”
If the issue in this case were whether punitive damages are an appropriate remedy for violations of federal rights, we might agree with Judge Buttler. However, that is not the issue. The question before us is whether section 1983, as it has been construed, was intended by Congress to displace a state statute which limits the monetary remedies which the state’s courts may afford. For the reasons stated in Nelson v. Lane County, supra, and restated here, there is no basis for the conclusion that section 1983 was intended to be preemptive when it was enacted or has been made so by later judicial interpretations.
Striking of attorney fees allegations reversed; judgment otherwise affirmed and remanded for proceedings not inconsistent with this opinion.
42 USC § 1983 provides:
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or cause to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
ORS 30.265(1) provided when this action was brought:
“Subject to the limitations of ORS 30.260 to 30.300, every public body is liable for its torts and those of its officers, employes and agents acting within the scope of their employment or duties, whether arising out of a governmental or proprietary function or while operating a motor vehicle in a ridesharing arrangement authorized under ORS 276.598. As used in ORS 30.260 to 30.300, ‘tort’ includes any violation of 42 U.S.C. section 1983.”
It has since been amended by Or Laws 1985, ch 731, § 31.
Plaintiffs second claim is against the county and the city. The trial court’s ORCP 67B judgment expressly stays further proceedings on that claim pending the decision of this appeal.
ORS 30.270 provides, in pertinent part:
“(1) Liability of any public body or its officers, employes or agents acting within the scope of their employment or duties on claims within the scope of ORS 30.260 to 30.300 shall not exceed:
“(a) $50,000 to any claimant for any number of claims for damage to or destruction of property, including consequential damages, arising out of a single accident or occurrence.
“(b) $100,000 to any claimant for all other claims arising out of a single accident or occurrence.
“(c) $300,000 for any number of claims arising out of a single accident or occurrence.
“(2) No award for damages on any such claim shall include punitive damages. The limitation imposed by this section on individual claimants includes damages claimed for loss of services or loss of support arising out of the same tort.
U* ‡ ‡ ‡ ‡
“(4) Liability of any public body and one or more of its officers, employes or agents, or two or more officers, employes or agents of a public body, on claims arising out of a single accident or occurrence, shall not exceed in the aggregate the amounts limited by subsection (1) of this section.”
He does not assign as error the court’s dismissing his claim, as well as striking the allegations of damages and attorney fees. His failure to do so makes the basis for this appeal arguably non-existent. Were we to conclude that plaintiff may seek the damages and attorney fees which the trial court held that he cannot, the immediate effect of our decision would be to reinsert allegations into a dismissed claim which plaintiff does not ask us to resurrect. It is a close question whether the assignments plaintiff makes are reviewable in the present posture of the case. However, we conclude that they are, because the trial court will have discretion whether to allow plaintiff to amend his complaint on remand. Consequently, for now at least, we need not treat the claim as a dead letter. We nevertheless note that, if it were not for the coincidence that plaintiff also alleged a second claim, there would be no possible basis for a remand and no complaint for the trial court to allow (or not allow) plaintiff to amend.
42 USC § 1988 provides, in pertinent part:
“In any action or proceeding to enforce a provision of sections 1981, 1982, 1983,1985, and 1986 of this title, * * * the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.”