968 F.2d 1214 (6th Cir. 1992), 91-3316, Brotherton v. Cleveland

Docket Nº:91-3316.
Citation:968 F.2d 1214
Party Name: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 M
Case Date:June 30, 1992
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 1214

968 F.2d 1214 (6th Cir. 1992)

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.

No. 91-3316.

United States Court of Appeals, Sixth Circuit

June 30, 1992

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA6 Rule 28 and FI CTA6 IOP 206 regarding use of unpublished opinions)

On Appeal from the United States District Court for the Southern District of Ohio, No. 90-00111; Spiegel, D.J.

S.D.Ohio

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

Before NATHANIEL R. JONES, BOGGS and ALAN E. NORRIS, Circuit Judges.

PER CURIAM.

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.

I

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).

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...

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