Brotherton v. Cleveland
| Decision Date | 30 June 1992 |
| Docket Number | No. 91-3316,91-3316 |
| Citation | 968 F.2d 1214 |
| Parties | NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Deborah S. BROTHERTON, individually, on behalf of those members of the class herein, as administratrix of the Estate of Steven Brotherton, by and on behalf of her minor children, and as next friend of Brent Brotherton, Carrie Brotherton and Melissa Brotherton; John Parnell Stephens, Executor of the Estate of Polly Stephens; Anita Jane Albus; Gary Martin Stephens; Ruth Gaynell Heisler; Jimmie Roland Stephens, Plaintiffs-Appellants, v. Frank P. CLEVELAND, M.D., Individually and in his capacity as Coroner for Hamilton County, Ohio; Cincinnati Eye Bank for Sight Restoration, Inc.; Bethesda, Inc., d/b/a Bethesda North Hospital; Eye Bank Association of America, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before NATHANIEL R. JONES, BOGGS and ALAN E. NORRIS, Circuit Judges.
This case requires us to reconsider the facts of Brotherton v. Cleveland, 923 F.2d 477 (6th Cir.1991), in which we recognized a constitutionally-protected interest in a deceased person's corneas. In this case, involving many of the same parties, the plaintiffs contend that the defendants violated 42 U.S.C. § 1983 by removing corneas from deceased members of the plaintiffs' families, against the wishes of the plaintiffs and at least one of the deceased. The district court dismissed this claim on the grounds that all the defendants either merited qualified immunity or were not state actors. For the reasons given below, we affirm in part, reverse in part, and remand the case to the district court.
On February 15, 1988, Steven Brotherton was pronounced dead on arrival at Bethesda North Hospital in Cincinnati, Ohio. The hospital asked his wife, Deborah Brotherton, to consider donating her husband's organs or tissues, but she refused, because such an action would have violated her husband's beliefs. This refusal was part of the hospital's "Report of Death." Because it was believed that Mr. Brotherton may have committed suicide, his body was taken to the Hamilton County Coroner's office. On February 16, 1988, an autopsy was performed on Mr. Brotherton's body. After the autopsy, the Coroner allowed Mr. Brotherton's corneas to be removed and used as anatomical gifts. The Coroner's office had called the Cincinnati Eye Bank, which sent a technician to remove the corneas. Ms. Brotherton learned of this removal only by reading the autopsy report. The hospital had not attempted to inform the coroner's office of Ms. Brotherton's refusal, and the coroner's office did not ask whether such a refusal had been made.
On February 9, 1989, Ms. Brotherton, acting individually, on behalf of a class, as Administratrix of the Estate of Mr. Brotherton, and by and on behalf and as next friend of her minor children, Brent Brotherton, Carrie Brotherton and Melissa Brotherton, filed suit in federal district court. She alleged deprivation of due process, a violation of the Equal Protection Clause, and a violation of 42 U.S.C. § 1983. She also challenged the constitutionality of Ohio Rev.Code § 2108.60, which allows a coroner to remove the corneas of an autopsy subject without consent, so long as the coroner does not know of any objection by the decedent, the decedent's spouse, or the person authorized to dispose of the body. Finally, she asserted claims under Ohio law. She named the following as defendants: Frank P. Cleveland, M.D., individually and as Hamilton County Coroner; the Board of County Commissioners of Hamilton County, and each Commissioner individually; the Eye Bank Association of America; Cincinnati Eye Bank for Sight Restoration, Inc.; Ohio Valley Organ Procurement Center; Bethesda North Hospital; and Bethesda, Inc.
On August 11, 1989, the district court dismissed this complaint on the grounds that Ms. Brotherton had no federally-protected rights in Mr. Brotherton's remains, and that Ohio Rev.Code § 2108.60 did not violate the United States Constitution. The state claims were dismissed without prejudice. Ms. Brotherton subsequently filed her state claims in state court. Meanwhile, on January 18, 1991, this court reversed the trial court's dismissal of Ms. Brotherton's due process claim and remanded to the district court for further action. Brotherton v. Cleveland, 923 F.2d 477 (6th Cir.1991).
On February 14, 1990--before this court had ruled on her appeal--Ms. Brotherton filed this suit, on behalf of the same plaintiffs as the first case, plus five additional plaintiffs who are surviving children of Polly Stephens. According to the complaint, Ms. Stephens was admitted to Bethesda North Hospital on February 4, 1988. As a result of a cardiac catheterization procedure, she died of a blood clot to her brain on February 19, 1988. The hospital never requested an anatomical gift, and Ms. Stephens's relatives were not asked if they would permit such a gift. Nevertheless, the Hamilton County Coroner's Office and the Cincinnati Eye Bank removed Ms. Stephens's corneas. Her children did not learn of this action until October 12, 1988. The plaintiffs (1) claim that they were deprived of their federally-protected rights without due process of law, in violation of 42 U.S.C. § 1983, (2) attack the constitutionality of Ohio Rev.Code § 2108.60, and (3) assert causes of action under state law. The plaintiffs name the following as defendants: Dr. Cleveland, both individually and as Hamilton County Coroner; the Eye Bank Association of America; Cincinnati Eye Bank for Sight Restoration, Inc.; and Bethesda, Inc. d/b/a Bethesda North Hospital.
On February 27, 1990, Cincinnati Eye Bank moved to dismiss this complaint under the doctrine of res judicata on the basis of the first case. Dr. Cleveland moved to dismiss on the basis suggested by Cincinnati Eye Bank and also because he was entitled to qualified immunity from liability under § 1983. Bethesda, Inc. filed a motion for summary judgment and the Eye Bank Association of America filed a motion to dismiss, relying upon similar arguments. After a hearing, the district court dismissed this action on July 6, 1990. It concluded that regardless of how this court ruled on Ms. Brotherton's then-pending appeal from her first case, Dr. Cleveland is the only "state actor" involved, and thus the only defendant who could possibly held liable under § 1983. It then ruled that Dr. Cleveland should receive qualified immunity because he did not violate clearly-established law. Therefore, the court dismissed the federal claims with prejudice for failure to state a claim, pursuant to Fed.R.Civ.P. 12(b)(6). It also dismissed the state claims without prejudice. On November 14, 1990, it denied the plaintiffs' motions to alter or amend or clarify judgment. This timely appeal followed.
In Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738 (1982), the Supreme Court stated that "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." In this case, the district court ruled that Dr. Cleveland was entitled to qualified immunity because "no court to date, including this Court, has found the plaintiffs' allegations rise to the level of violations of federal or constitutional law," and therefore, it concluded, Dr. Cleveland could not have violated clearly-established law.
The plaintiffs contend that even if there were no case law that specifically held that a spouse has a protected legal interest in her husband's body, the courts have long recognized a citizen's right to due process. Furthermore, this right can be violated by a taking of garnished wages, Sniadach v. Family Fin. Corp. of Bay View, 395 U.S. 337, 89 S.Ct. 1820 (1969); of welfare payments, Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011 (1970); or of a driver's license, Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586 (1971). Surely, the plaintiffs argue, the body of one's spouse or mother deserves more legal protection than such items. Furthermore, as noted earlier, this court recently recognized the existence of the very right in question. In Brotherton v. Cleveland, 923 F.2d 477, 482 (6th Cir.1991), this court held that "the aggregate of rights granted by the state of Ohio to Deborah Brotherton rises to the level of a 'legitimate claim of entitlement' in Steven Brotherton's body, including his corneas, protected by the due process clause of the fourteenth amendment." The plaintiffs also refer to several provisions of Ohio law that, they argue, should have warned the defendants that their actions were unconstitutional. See, e.g., Ohio Rev.Code § 2927.01(A) (). The plaintiffs also contend that Dr. Cleveland clearly acted in bad faith.
We agree with the district court that Dr. Cleveland is entitled to qualified immunity in his personal capacity. Ohio law originally required the coroner to "have made a reasonable effort to notify the family of the decedent of the request" for an anatomical gift. Ohio Rev.Code § 2108.60(B)(4). However, in 1983, this was amended to allow the removal of corneas if the coroner "has no knowledge of an objection" to the removal by the decedent's family. Until the first Brotherton complaint, no court had construed the amended statute, and thus Dr. Cleveland had no legal guidance in interpreting the plaintiffs' rights. Furthermore, the few cases that had addressed statutes similar to Ohio Rev.Code § 2108.60(B)(4) all held that they established no federally-protected rights. See, e.g.,...
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Brotherton v. Cleveland
...violation. Brotherton appealed. On June 30, 1992, this court issued Brotherton v. Cleveland, 968 F.2d 1214, No. 91-3316, 1992 WL 151286 (6th Cir.1992) (per curiam) (unpublished) ("Brotherton II "). The decision in Brotherton II resolved several issues. It explained that: (1) Dr. Cleveland e......
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Brotherton v. Cleveland
...violation. Brotherton appealed. On June 30, 1992, this court issued Brotherton v. Cleveland, 968 F.2d 1214, No. 91-3316, 1992 WL 151286 (6th Cir. 1992) (per curiam) (unpublished) ("Brotherton II"). The decision in Brotherton II resolved several issues. It explained that: (1) Dr. Cleveland e......
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Soliday v. Miami County, Ohio, 94-3281
...stating that the rights articulated in Brotherton I were not clearly established until that decision. Brotherton v. Cleveland, 968 F.2d 1214 (6th Cir.1992) (Brotherton II). The events here occurred before Brotherton I was decided. The District Court held that Meeker was protected by qualifi......