concurring in part; dissenting in part.
Because I believe that plaintiff is entitled to maintain an action against the individual defendants under 42 USC § 1983 and that the state may not impose limits on the damages that he may seek against them that are inconsistent with the federal law, I dissent. I concur with the majority’s holding that federal law controls with respect to attorney fees.
To understand the problem more fully, it is useful to note that plaintiffs second claim against the county and city, which has not been dismissed, does not state a claim under section 1983 against either of those defendants. Municipalities may be sued directly under section 1983 only if the alleged unconstitutional act was taken pursuant to official municipal policy. Monell v. New York City Dept. of Soc. Serv., 436 US 658, 98 S Ct 2018, 56 L Ed 2d 611 (1978). Plaintiff concedes that his claim against the county and city rests solely on the doctrine of respondeat superior. He must, therefore, rely on ORS 30.265(1), which provides that public bodies are liable for the torts of their officers, employes and agents acting within the scope of their employment or duties. Accordingly, his claim against Multnomah County and the City of Gresham arises under state law and is subject, without qualification, to the damage limitations in the Oregon Tort Claims Act. See Rosacker v. Multnomah County, 43 Or App 583, 603 P2d 1216 (1979), rev den 289 Or 45 (1980).
Plaintiffs claim against the five individual defendants, the only claim that is before us, is quite different. His section 1983 remedy is federally created and exists independently of any state right; it preexisted OTCA and could have been asserted against the individual defendants, who would not have been immune from liability before OTCA. See Smith v. Pernoll, 291 Or 67, 628 P2d 729 (1981). The narrow question is whether the state may impose limitations on the section 1983 remedy when the action is brought in a state court.
Defendants’ sole argument, to which the majority does not respond, is that the limitations in the OTCA are jurisdictional and that the state courts, therefore, lack jurisdiction over claims that exceed the statutory limitations on liability, ORS 30.270, because the Supremacy Clause cannot *488be used to create or enlarge a state court’s jurisdiction. They rely on the Tenth Amendment to the United States Constitution.1 Although there appears to be no authority requiring a state court to entertain jurisdiction over the federal claim, a state court must do so if the same type of claim, if it arose under state law, would be enforced in the state court. Martinez v. California, 444 US 277, 100 S Ct 2502, 62 L Ed 2d 481 (1980); Testa v. Katt, 330 US 386, 67 S Ct 810, 91 L Ed 967 (1947). It is clear that plaintiff’s claim against the individual defendants is of a type that would be enforced in Oregon courts under OTCA, albeit with a limitation on their liability that is not imposed by Congress or the federal courts on the federal claim.
OTCA does not purport to be a jurisdictional statutory scheme. It does not, as defendants contend, create a new right and grant “the courts jurisdiction to hear a certain class of claims.” Rather, as the court explained in Bradford v. Davis, 290 Or 855, 860, 626 P2d 1376 (1981):
“Actions under the Tort Claims Act are tort actions, not special statutory causes of action created by that Act. ORS 30.265 provides that ‘every public body is liable for its torts and those [i.e., the torts] of its officers, etc.’ In other words, ORS 30.265 (1) withdraws governmental immunity from tort actions, with the exceptions stated * * *.” (Emphasis in original.)
The act did not create new causes of action; it removed a bar to the bringing of tort actions against public bodies. Their employes, however, had not been immune from liability before the enactment of OTCA, except for the negligent performance of discretionary functions. See Smith v. Pernoll, supra. The effect of OTCA is to impose limits, which did not exist before its entactment, on the liability of employes when they are acting within the course and scope of their employment. Oregon courts had jurisdiction over section 1983 claims before OTCA, and that act did not change that jurisdiction.
It is clear to me that plaintiffs first claim is brought under section 1983 and that his second claim is brought under OTCA. Whether his allegation that he gave notice under *489OTCA, ORS 30.275, was necessary under his first claim is not before us. It is necessary under his second claim. All of his arguments make it clear that he relies on federal law for his first claim. Because we are concerned only with the 1983 claim, I would hold that plaintiff may maintain that action free of the limits imposed by OTCA. In deciding to the contrary, the majority relies on our reasoning in Nelson v. Lane County, 79 Or App 753, 720 P2d 1291 (1986), aff’d 304 Or 97, 743 P2d 692 (1987), although it recognizes that, given the Supreme Court’s opinion, 304 Or at 111, it has no precedential value.
We said in Nelson that there was no basis for concluding that section 1983 preempts OTCA with respect to punitive damages. However, punitive damages may be recovered in a section 1983 action if the defendant’s conduct meets a federal common law standard.2 Smith v. Wade, 461 US 30, 103 S Ct 1625, 75 L Ed 2d 632 (1983). Entitlement to such damages is a part of the federal right. Because the federal right may be asserted in state courts, the state court must entertain the action without imposing state limitations. As in Testa v. Katt, supra, where the state’s policy was not to enforce penal statutes in excess of double damages, Oregon’s policy is not to permit punitive damages under OTCA. Oregon does, however, permit punitive damages in analogous cases, such as assault, not under OTCA. Belanger v. Harsch, 262 Or 208, 497 P2d 667 (1972). Plaintiff has alleged that the individual defendants’ conduct violated his federal constitutional rights; he does not rely on any state-created rights. Defendants do not contend that the allegations of the complaint are not sufficient to state a section 1983 claim. The state must entertain the claim without imposing restrictions on the amount of damages or refusing to permit punitive damages.
Because there are no limits on the amount that can be claimed in a section 1983 claim and, because that claim may include punitive damages, the provisions of OTCA are in conflict with the federal right, just as much as the claim for attorney fees is in conflict with OTCA’s failure to provide for them, which the majority concedes. Under the circumstances, *490section 1983 preempts OTCA under the Supremacy Clause, California Federal S. & L. Assn. v. Guerra, 479 US_, 107 S Ct 683, 93 L Ed 2d 613 (1987), with respect to all of those claims, not only the claim for attorney fees. Cf. Martinez v. California, supra.3
In short, I conclude that when a section 1983 claim is brought in a state court, the court must enforce the claim, including all of the remedies that are a part of the claim under federal law. Accordingly, I believe that the trial court erred in granting the individual defendants’ motion to strike and in entering judgment dismissing plaintiffs first claim.
Rossman and Newman, JJ., join in this opinion.
US Const, Amend X, provides:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Apparently, federal courts have been developing federal common law applicable for section 1983 claims. See Procunier v. Navarette, 434 US 555, 98 S Ct 855, 55 L Ed 2d 24 (1978) (qualified immunity for prison officials and officers).
The Court in Martinez footnoted the following quotation:
“ ‘Conduct by persons acting under color of state law which is wrongful under 42 USC § 1983 or § 1985(3) [42 USCS § 1983 or § 1985(3)], cannot be immunized by state law. A construction of the federal statute which permitted a state immunity defense to have controlling effect would transmute a basic guarantee into an illusory promise; and the supremacy clause of the Constitution insures that the proper construction may be enforced. See McLaughlin v. Tilendis, 398 F2d 287, 290 (7th Cir 1968). The immunity claim raises a question of federal law.’ Hampton v. Chicago, 484 F2d 602, 607 (CA7 1973), cert denied 415 US 917, 39 L Ed 2d 471, 94 S Ct 1413, 94 S Ct 1414.” 444 US at 284 n 8.