923 F.2d 477 (6th Cir. 1991), 89-3820, Brotherton v. Cleveland

Docket Nº:89-3820.
Citation:923 F.2d 477
Party Name:Deborah S. BROTHERTON; Deborah S. Brotherton, Individually and as Administratrix of the Estate of Steven Brotherton; Deborah S. Brotherton, on behalf of her minor children, Carrie Brotherton and Melissa Brotherton, Plaintiffs-Appellants, v. Frank P. CLEVELAND, M.D.; Board of County Commissioners of Hamilton County, Ohio; Joseph M. DeCourcy; Norman
Case Date:January 18, 1991
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 477

923 F.2d 477 (6th Cir. 1991)

Deborah S. BROTHERTON; Deborah S. Brotherton, Individually

and as Administratrix of the Estate of Steven Brotherton;

Deborah S. Brotherton, on behalf of her minor children,

Carrie Brotherton and Melissa Brotherton, Plaintiffs-Appellants,


Frank P. CLEVELAND, M.D.; Board of County Commissioners of

Hamilton County, Ohio; Joseph M. DeCourcy; Norman A.

Murdock; Robert A. Taft, II; Eye Bank Association of

America; Cincinnati Eye Bank for Sight Restoration, Inc.;

Ohio Valley Organ Procurement Center; Bethesda North

Hospital; Bethesda, Inc., Defendants-Appellees.

No. 89-3820.

United States Court of Appeals, Sixth Circuit

January 18, 1991

Argued April 30, 1990.

Rehearing and Rehearing En Banc

Denied April 3, 1991.

Page 478

John H. Metz (argued), Cincinnati, Ohio, for plaintiffs-appellants.

Philip L. Zorn, Jr. (argued), Stephen A. Bailey, Lindhorst & Dreidame, Harry J. Finke IV (argued), Graydon, Head & Ritchey, Holly S. Doan (argued), John J. Cruze, Porter, Wright, Morris & Arthur, Bruce B. McIntosh (argued), McIntosh, McIntosh & Knabe, Cincinnati, Ohio, for defendants-appellees.

Before MARTIN and BOGGS, Circuit Judges, and JOINER, Senior District Judge. [*]

BOYCE F. MARTIN, Jr., Circuit Judge.

Deborah S. Brotherton, the wife of decedent Steven Brotherton, appeals the dismissal of her section 1983 claim for wrongful removal of her deceased husband's corneas. Because we find that Deborah Brotherton has a protected property interest in her husband's corneas and that the removal of those corneas was caused by established state procedures, we reverse.

On February 15, 1988, Steven Brotherton was found "pulseless" in an automobile and was taken to Bethesda North Hospital in Cincinnati, Ohio. He was pronounced dead on arrival. The hospital asked Deborah Brotherton to consider making an anatomical gift; she declined, based on her husband's aversion to such a gift, and her refusal was documented in the hospital's "Report of Death."

Because Steven Brotherton's death was considered a possible suicide, his body was taken to the Hamilton County coroner's office. An autopsy of Steven Brotherton's body was performed on February 16, 1988; after the autopsy, the coroner permitted Steven Brotherton's corneas to be removed and used as anatomical gifts. The coroner's office had called the Cincinnati Eye Bank, which sent the technician who removed the corneas. Deborah Brotherton did not learn that her husband's corneas had been removed until she read the autopsy report.

Bethesda North Hospital made no attempt to inform the coroner's office of Deborah Brotherton's objection to making an anatomical gift, and the coroner's office did not inquire into whether there was an objection. OHIO REV.CODE Sec. 2108.60 permits a coroner to remove the corneas of autopsy subjects without consent, provided that the coroner has no knowledge of an objection by the decedent, the decedent's spouse, or, if there is no spouse, the next of kin, the guardian, or the person authorized to dispose of the body. The custom and policy of the Hamilton County coroner's office is not to obtain a next of kin's consent or to inspect the medical records or hospital documents before removing corneas.

Deborah Brotherton, on her own behalf and on behalf of her children, as well as a purported class of similarly situated plaintiffs, filed this case under 42 U.S.C. Sec. 1983, alleging that her husband's corneas were

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removed without due process of law and in violation of the equal protection clause. She also asserted pendent state law claims for emotional distress.

The district court dismissed the complaint, holding that Brotherton failed to state a cognizable claim under section 1983. 733 F.Supp. 56. First, the court determined that Ohio does not give a surviving custodian a property interest in the body of a decedent; thus, Brotherton's due process claim was precluded because she lacked a property interest in her husband's dead body. Second, the district court rejected Brotherton's equal protection claim, which alleged that OHIO REV.CODE Sec. 2108.60 creates an unconstitutional classification because it allows the removal of corneas only from those bodies which have been autopsied by Ohio county coroners. Finding that there was no fundamental right or suspect class at issue, the court determined that the legislative classification need be only rationally related to a legitimate state interest. City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516, 49 L.Ed.2d 511 (1976). The district court held that the statute was rationally related to Ohio's legitimate interest in performing autopsies and in implementing an organ donation program. Lastly, the district court dismissed the pendent state claims because it had dismissed the federal claims before trial. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966).

To state a cognizable claim under 42 U.S.C. Sec. 1983, Brotherton must allege that she was deprived of a right secured by the Constitution or the laws of the United States and that the deprivation occurred under color of state law. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981); Nishiyama v. Dickson County, Tenn., 814 F.2d 277, 279 (6th Cir.1987) (en banc). The latter requirement, under color of state law, is easily satisfied in this case: OHIO REV.CODE Sec. 2108.60 permitted the coroner, an employee of Hamilton County, to have a technician remove Steven Brotherton's corneas without regard to anyone's consent; the coroner's office took advantage of this statute by customarily removing corneas before inspecting records or receiving consent. In contrast, the first requirement, deprivation of a right secured by the Constitution or laws of the United States, presents a formidable challenge to Brotherton. She asserts she was deprived of her right to due process of law under the fourteenth amendment, which states, in pertinent part: "nor shall any state deprive any person of life, liberty, or property without due process of law...."

There are three prerequisites Brotherton must satisfy to assert a valid due process claim: (1) deprivation, (2) of property, (3) under color of state law. Parratt, 451 U.S. at 536-537, 101 S.Ct. at 1913-14. These three elements are necessary to establish a violation of due process under the fourteenth amendment; however, they alone are insufficient. Id. at 537, 101 S.Ct. at 1914. If Brotherton proves these elements, she must also show either (1) the conduct was caused by "established state procedure rather...

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