UNITED STATES COURT OF APPEALS

Filed 8/14/96

TENTH CIRCUIT

LINDA POPE; F. DARRELL POPE,

as natural parents and next of kin of

Darrell J. Pope,

Plaintiffs-Appellants, 

v.

RON WARD, individually; RON

WARD, in his official capacity as

Warden of the Oklahoma Penitentiary;

KEN KLINGER, individually; KEN

KLINGER, in his official capacity of

a Deputy Warden of the Oklahoma

State Penitentiary; CLIFF URNAGA,

individually; CLIFF URNAGA, in

his official capacity of a Deputy

Warden of the Oklahoma State

Penitentiary; FRED COOK, 

individually; FRED COOK, in his

official capacity as Unit Manager of

H-Unit (Death Row Unit) of the

Oklahoma State Penitentiary,

Defendants-Appellees. 

No. 95-7129

(D.C. for E.D. Oklahoma)

(D.C. No. CV-95-138-S)
 

*This order and judgment is not binding precedent, except under the doctrines

of law of the case, res judicata and collateral estoppel. The court generally

disfavors the citation of orders and judgments; nevertheless, an order and

judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

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ORDER AND JUDGMENT*

Before TACHA, McWILLIAMS, and MURPHY, Circuit Judges. 

Plaintiffs, the natural parents of Darrell J. Pope, deceased, appeal the

district court’s order granting summary judgment to defendants, state prison

officials, on plaintiffs’ claims filed under 42 U.S.C. § 1983. Pope was murdered

by his cellmate at the Oklahoma State Penitentiary. Alleging violations of 

Pope’s Eighth and Fourteenth Amendment rights, plaintiffs sued for “damages,

prospective injunctive relief for inmates assigned to H-Unit [the maximum

security unit to which Pope was assigned], and other appropriate relief under 42

U.S.C. § 1983 for the deprivation of [Pope’s] rights.” The district court held that

the Eleventh Amendment barred prosecution of defendants in their official

capacities; that defendants were entitled to qualified immunity in their individual

capacities; and that plaintiffs lacked standing to assert a conditions of

confinement claim. On appeal, plaintiffs argue that the Eleventh Amendment

does not bar their claim for injunctive relief; that defendants were not entitled to
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qualified immunity; and that plaintiffs have standing as Pope’s natural parents. 

Because plaintiffs lack standing to pursue their claims, we affirm.

This court reviews the district court’s entry of summary judgment de novo. 

Schusterman v. United States, 63 F.3d 986, 989 (10th Cir. 1995), cert. denied,

116 S. Ct. 1823 (1996). A trial court’s grant of summary judgment may be

affirmed if any proper grounds exist to support the ruling. McKibben v. Chubb,

840 F.2d 1525, 1528 (10th Cir. 1988). Because we determine that plaintiffs lack

standing, we affirm without reaching the merits of their appeal.

First, plaintiffs lack standing to bring an action for damages based on the

alleged deprivations of Pope’s rights. In suits brought under 42 U.S.C. § 1983,

the question of who may bring an action for violations of a decedent’s

constitutional rights is answered by looking to state law. See 42 U.S.C. § 1988;

Grandbouche v. Clancy, 825 F.2d 1463, 1465 (10th Cir. 1987); Archer v.

Preisser, 723 F.2d 639, 639-40 (8th Cir. 1983). Under Oklahoma’s wrongful

death statute, as amended in 1978, damages for a decedent’s pain and suffering,

lost earnings, and punitive damages are available in a wrongful death action. See

Okla. St. Ann. tit. 12 § 1053; Berry v. City of Muskogee, 900 F.2d 1489, 1500-01

(10th Cir. 1990) (discussing remedies available under Oklahoma’s wrongful death

and survival statutes). Such an action is properly brought by the personal

representative of the estate or, if no personal representative has been appointed,
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by the decedent’s next of kin. See id. § 1054; Fletcher v. Amity Care, Inc., 810

P.2d 834, 835 (Okla. Ct. App. 1991). In this case, plaintiffs sued as Pope’s

natural parents and next of kin. Plaintiffs have failed to allege, however, that no

personal representative has been appointed. Moreover, their brief indicates that

Pope left a minor son. Under Oklahoma law, Pope’s minor son is his next of kin. 

See Silva v. Gulf Oil Corp., 320 P.2d 711, Syl. ¶ 2 (Okla. 1958) (holding that

“next of kin” refers to those individuals who are entitled to share in the

distribution of the decedent’s estate); Okla. St. Ann. tit. 84 § 213 (providing that

“if [a] decedent . . . leaves issue, the whole estate goes to such issue”). 

Accordingly, plaintiffs lack standing to sue for damages under Oklahoma’s

wrongful death statute.

In the alternative, plaintiffs argue they have standing to bring a

survivorship action on behalf of Pope’s estate. Assuming the availability of

damages under Oklahoma’s wrongful death statute does not preclude recovery in

a survival action, plaintiffs have nevertheless failed to demonstrate that they are

the appropriate parties to bring suit on behalf of the estate. At oral argument,

plaintiffs’ counsel conceded that plaintiffs were not suing as administrators of the

estate. Moreover, under Oklahoma law, the guardian of Pope’s minor son has

priority over the plaintiffs with respect to the administration of Pope’s estate. See

Okla. St. Ann. tit. 58 §§ 122, 125; Sparks v. Steele, 501 P.2d 1106, 1110 (Okla.
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1972). Plaintiffs do not assert that they are the guardian’s of Pope’s son. Under

these circumstances, plaintiffs’ claim that they have standing to bring a

survivorship action because they are “first in order” to administer Pope’s estate is

unpersuasive.

Second, plaintiffs lack standing to bring a conditions of confinement claim

for injunctive relief on behalf of Pope and the other inmates. Pope’s claims for

injunctive and declaratory relief were mooted by his death. See Martin v.

Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985). Plaintiffs thus lack standing to

seek injunctive relief based on Pope’s conditions of confinement. Moreover,

plaintiffs have failed to persuade the court that they should be allowed to bring

claims on behalf of other H-Unit inmates. It is a “well-settled principle that a

section 1983 claim must be based upon the violation of plaintiff’s personal rights,

and not the rights of someone else.” Archuleta v. McShan, 897 F.2d 495, 497

(10th Cir. 1990).

Finally, plaintiffs have failed to allege deprivations of their own

constitutional rights. In Trujillo v. Board of County Commissioners, 768 F.2d

1186 (10th Cir. 1985), this court held that the mother and sister of a county jail

inmate had standing to assert claims under § 1983 for deprivations of their own

rights of familial association based on the alleged wrongful death of their son and

brother while incarcerated. Id. at 1187. In that case, the plaintiffs “clearly
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allege[d] an injury to their own personal constitutional rights. . . . Therefore they

ha[d] standing to assert their own claim under section 1983.” Id. In contrast, the

plaintiffs in this case have failed to allege violations of their own rights, resting

their claims instead upon the alleged deprivations of their son’s rights. 

Consequently, plaintiffs lack standing to sue in their personal capacities. 

For the foregoing reasons, the district court’s grant of summary judgment is

AFFIRMED.

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge