453 F.2d 698 (2nd Cir. 1971), 93, McCabe v. Nassau County Medical Center

Docket Nº:93, 71-1371.
Citation:453 F.2d 698
Party Name:Linda McCABE, Plaintiff-Appellant, v. NASSAU COUNTY MEDICAL CENTER et al., Defendants-Appellees.
Case Date:December 23, 1971
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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453 F.2d 698 (2nd Cir. 1971)

Linda McCABE, Plaintiff-Appellant,


NASSAU COUNTY MEDICAL CENTER et al., Defendants-Appellees.

No. 93, 71-1371.

United States Court of Appeals, Second Circuit.

December 23, 1971

Argued Oct. 6, 1971.

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Jeremiah S. Gutman, New York City, (Janet K. Alter, Larchmont, N. Y., Ruth W. Friedman, New York City, on the brief), for plaintiff-appellant.

Louis Schultz, Deputy County Atty., Mineola, N. Y. (Joseph Jaspan, County Atty. of Nassau County, Biagio F. Giaquinto, Senior Deputy County Atty., Natale C. Tedone, Deputy County Atty., on the brief), for defendants-appellees.

Before MOORE, HAYS and FEINBERG, Circuit Judges.

FEINBERG, Circuit Judge:

This case raises grave issues concerning the right of a woman to decide how many children she shall bear. In the summer of 1970, plaintiff Linda McCabe and her husband agreed, for reasons sufficient for them, that she should be sterilized. For that purpose, she went to the Nassau County Medical Center, a public hospital. The Medical Center refused to perform the operation because, according to its rules, Mrs. McCabe had to have five children before she could be sterilized. Mrs. McCabe felt that the rule was arbitrary and violated

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her right to decide for herself how many children she wanted. She then brought this action for injunctive and declaratory relief and for damages against the Medical Center, Dr. Stewart L. Marcus, Chief of Obstetrics there, John N. Shell, president of the Medical Center's Board of Managers, and Edward J. Rosasco, Jr., its administrator. In January 1971, the Medical Center reversed itself and permitted the operation to be performed. Thereafter, defendants moved in the United States District Court for the Eastern District of New York to dismiss the complaint as moot. Judge Anthony J. Travia of that court dismissed the action, and this appeal followed. For reasons set forth below, we reverse.


According to the papers before the district judge: Plaintiff was a mature woman of 25 when this action was brought. By that time she had been pregnant six times and had four small children. Because of concern for her health, and for emotional and economic reasons, Mrs. McCabe and her husband decided not to have any more children. But due to a thyroid condition plaintiff could not take birth control pills. The McCabes felt that they could not rely upon other, riskier means of contraception and decided upon sterilization. In early August 1970, plaintiff and her husband visited the Family Planning Clinic of the Medical Center and plaintiff signed various forms consenting to the operation. On August 26, 1970, plaintiff was told orally by a doctor in the Department of Obstetrics and Gynecology that the regulations of the Medical Center forbade the operation unless the applicant already had five children. This advice was confirmed in September in a letter from defendant Dr. Marcus to plaintiff's attorney, which stated in part:

I have reviewed Mrs. McCabe's medical records and have spoken to the physician whom she consulted here. According to the bylaws, rules, and regulations governing sterilization at the Nassau County Medical Center, Mrs. McCabe is not eligible for voluntary sterilization.

According to our records Mrs. McCabe is 26 years old and has four living children. For a woman between the ages of 25 and 29 years, the regulations of the Nassau County Medical Center permit sterilization if the woman has five living children.

The bylaws and regulations at this center are based upon the guide lines and recommendations of the American College of Obstetricians and Gynecologists. 1

Because of inability to pay, plaintiff is unable to go to a private hospital and find a doctor who would perform the operation. Plaintiff went to the Medical Center because it is the only public hospital in the community where she lives and has a sliding scale of fees based on ability to pay. The Center is "funded, regulated and controlled fully or in part" by New York State or Nassau County.

In her complaint filed in November 1970, plaintiff further alleged that defendants' refusal to sterilize her, based upon the hospital's regulations, was taken under color of state law in violation of her rights under the first, fifth, eighth, ninth and fourteenth amendments to the Constitution of the United States. Relying upon 42 U.S.C. § 1983, 2 plaintiff sought a judgment preventing the hospital from further enforcing its

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sterilization rules, compelling it to perform the operation, declaring the rules unconstitutional, and compensating her for the damages she had suffered. In January 1971, as already indicated, the Medical Center changed its mind and gave plaintiff permission to be sterilized. She entered the hospital promptly and the operation was performed within two weeks, under a stipulation preserving various rights of the parties.

Shortly thereafter defendants moved to dismiss the complaint as moot. Plaintiff opposed the motion on the ground that performance of the surgery did not extinguish her claim for damages. A hearing was held before Judge Travia, who dismissed the action in a brief order which stated that:

[T]he substantive issues . . . were moot and academic, and that all that possibly remained was a simple cause of action for damages, if any, over which this Court lacks jurisdiction and which could be brought in a state court when all issues could be resolved. . . .

From that dismissal plaintiff appeals.


In this court, the parties have extensively briefed and argued the merits of plaintiff's constitutional claims as though those were the issues we are now called upon to decide. Thus, plaintiff claims, among other things, that defendants' refusal to permit her to be sterilized, based upon an age-parity formula, 3 invaded her right to privacy in her marital relationship, imposed upon her the religious beliefs of others, and denied her the equal protection of the laws not only because the age-parity rule discriminates against the poor but also because the distinctions based upon age are irrational. Plaintiff offers us a number of cases 4 and other authorities 5 to support these propositions. Defendants counter with an equally extensive discussion of the underlying constitutional claims along with supporting citations. 6 However interesting and serious these questions may be, we decline to comment on the merits except as may be necessary to decide this appeal. The district judge dismissed the action without an opinion, but the portion of his order quoted above and the colloquy before him when the motion was argued indicates that the bases of his decision were three: mootness, lack of jurisdiction and abstention. As will be seen below, none justified dismissal.

Although the request for injunctive relief was "moot and academic," as the district court said, the claim for

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damages was not. The cases make clear that the damage claim of Mrs. McCabe under 42 U.S.C. § 1983 is not mooted merely because she no longer needs equitable relief. Powell v. McCormick, 395 U.S. 486, 495-500, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969); Bond v. Floyd, 385 U.S. 116, 128 n. 4, 87 S.Ct. 339, 17 L.Ed.2d 235 (1966); Winters v. Miller, 306 F.Supp. 1158, 1163 (E.D.N.Y.1969), rev'd on other grounds, 446 F.2d 65 (2d Cir. 1971). 7 A properly alleged damage claim was in the case from the start and was not inserted after the complaint was filed in an attempt to breathe life into a moribund dispute, as in Perrucci v. Gaffey, 450 F.2d 356 (2d Cir., 1971). Moreover, unlike our recent decision in Kerrigan v. Boucher, 450 F.2d 487 (2d Cir., 1971), the claim for damages is not conceded to be nominal, since the complaint sought damages of $250,000. Although that amount may be familiar hyperbole, the complaint and supporting affidavits allege that for the period when defendants refused to perform the operation plaintiff was in constant fear of becoming pregnant, which caused great pain and suffering and increased the likelihood of further irreparable injury. See Chrisman v. Sisters of St. Joseph of Newark (D.Or., July 22, 1971). In the record below, and on argument in our court, plaintiff's counsel alluded to actual physical damage and medical expenses, and we are not prepared to say on this record that none could be proved 8 or even, where invasion of a constitutional right is alleged, that such proof is necessary to sustain section 1983 jurisdiction. See Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944); Basista v. Weir, 340 F.2d 74, 87-88 (3d Cir. 1965). Finally, the claim for damages is clearly based upon invasion of a right of "personal liberty" rather than a property right, so that our line of cases holding that there is no section 1983 jurisdiction in the latter instance does not apply. See, e. g., Eisen v. Eastman, 421 F.2d 560 (2d Cir. 1969) (1970) cert. denied 400 U.S. 841, 91 S.Ct. 82, 27 L.Ed.2d 75.

As to jurisdiction, the district court did not indicate why it was lacking, but defendants, represented by the County Attorney of Nassau County, argue that there is no section 1983 jurisdiction because they did not act "under color of any statute . . . of any State," but merely rendered "a discretionary decision" as physicians. 9 However,

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the pleadings make plain that plaintiff's suit is not against a private hospital, see Campbell v. Glenwood Hills Hosp., Inc., 224 F.Supp. 27 (D.Minn.1963), nor does it appear to be an action against physicians associated with a public hospital but serving in their private capacities, see Spampinato v. M. Breger & Co., 270 F.2d 46, 48-49 (2d Cir. 1959), cert. denied, 361 U.S. 944, 80 S.Ct. 409, 4 L.Ed.2d 363 (1960). The complaint alleges state funding of the Medical Center and state...

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