Albrecht v. Treon, No. 09-3703.

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: HOOD, Senior
• Citation: 617 F.3d 890
• Parties: Mark ALBRECHT; Diane Albrecht, Both individually and on behalf of others similarly situated, Plaintiffs-Appellants,v.Brian TREON, M.D., Individually and in his official capacity as Coroner of Clermont County, Ohio, and on behalf of others similarly situated; Board of County Commissioners of Clermont County, Ohio, for itself and on behalf of others similarly situated; Mary Walker, in her capacity as commissioner of Clermont County, Ohio, and on behalf of others similarly situated; Bob Proud, in his capacity as commissioner of Clermont County, Ohio, and on behalf of others similarly situated; Scott Croswell, in his capacity as commissioner of Clermont County, Ohio, and on behalf of others similarly situated, Defendants-Appellees.
• Decision Date: 24 August 2010
• Docket Number: No. 09-3703.

617 F.3d 890

Mark ALBRECHT; Diane Albrecht, Both individually and on behalf of others similarly situated, Plaintiffs-Appellants,
v.
Brian TREON, M.D., Individually and in his official capacity as Coroner of Clermont County, Ohio, and on behalf of others similarly situated; Board of County Commissioners of Clermont County, Ohio, for itself and on behalf of others similarly situated; Mary Walker, in her capacity as commissioner of Clermont County, Ohio, and on behalf of others similarly situated; Bob Proud, in his capacity as commissioner of Clermont County, Ohio, and on behalf of others similarly situated; Scott Croswell, in his capacity as commissioner of Clermont County, Ohio, and on behalf of others similarly situated, Defendants-Appellees.

No. 09-3703.

United States Court of Appeals,
Sixth Circuit.

Argued: Aug. 6, 2010.
Decided and Filed: Aug. 24, 2010.

617 F.3d 891

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617 F.3d 892

ARGUED: John Henry Metz, Law Office, Cincinnati, Ohio, for Appellants. H. Elizabeth Mason, Clermont County Prosecutor's Office, Batavia, Ohio, for Appellees. ON BRIEF: John Henry Metz, Law Office, Cincinnati, Ohio, Patrick J. Perotti, Dworken Bernstein Co., LPA, Painesville, Ohio, for Appellants. H. Elizabeth Mason, Clermont County Prosecutor's Office, Batavia, Ohio, for Appellees. Mark D. Landes, David G. Jennings, Jennifer H. George, Isaac, Brant, Ledman & Teetor, Columbus, Ohio, David G. Lambert, Paul J. Cristallo, Frederick W. Whatley, Cuyahoga County Prosecutor's Office, Cleveland, Ohio, for Amici Curiae.

Before GUY and GRIFFIN, Circuit Judges; HOOD, Senior District Judge. ^*OPINIONHOOD, Senior District Judge.

Plaintiffs-Appellants Mark and Diane Albrecht, et al. (“the Albrechts”) appeal the district court's decision to grant judgment on the pleadings in favor of Defendants-Appellees Brian Treon, et al. (hereinafter, “Defendants”). The Albrechts brought a claim pursuant to 42 U.S.C. § 1983, alleging that they were denied due process of law when the defendant coroner performed an autopsy on the Albrechts' son's remains and removed the brain during the procedure. When the body was returned to the Albrechts, they were not informed that the coroner had retained the brain for further study and that it would be destroyed once the investigation was complete. The Albrechts claim that the retention and destruction of their son's brain, without their knowledge, deprived them of the right to dispose of their son's brain, in violation of the Due Process Clause of the Fourteenth Amendment. The Albrechts base this claim on their purported property interest in their son's entire body, including his brain. The Albrechts also brought common law tort claims against Defendants, over which the district court exercised supplemental jurisdiction.

The district court was faced with the question of whether the Albrechts had a constitutionally protected property interest in their son's brain after it was removed and retained for legitimate investigative purposes. As this was a question of first impression in Ohio, the district court certified the question to the Ohio Supreme Court. The Ohio Supreme Court answered the question in the negative, stating that there is no constitutionally protected property interest in human remains retained by the state of Ohio for criminal investigation purposes. The district court consequently held that the Albrechts had no property interest in the brain, and, thus, Defendants were entitled to judgment on the pleadings. The Albrechts argue that the Sixth Circuit's ruling in

617 F.3d 893

Brotherton v. Cleveland, M.D., 923 F.2d 477 (6th Cir.1991), holding that a spouse had a protected property interest in her husband's corneas, which were removed for donation purposes, should rule this case, as opposed to the Ohio Supreme Court's answer to the certified question.

For the reasons which follow, the judgment of the district court is AFFIRMED.

I. Factual and Procedural Background

The coroner for Clermont County, Ohio, performed an autopsy on the Albrechts' son's remains. The autopsy required examination of their son's brain. In order to examine and dissect a human brain more effectively, the jelly-like organ must be soaked in a formol saline solution for ten to fourteen days, a process referred to as “fixing” the brain, which firms the brain tissue for dissection. Due to the lengthy process of fixing the brain, it is the usual practice of the coroner to return the remains to next of kin for disposition without the brain. The coroner did not inform the Albrechts that he retained their son's brain upon return of the body to them. When the examination of the brain was completed, it was destroyed in accordance with the coroner's usual practice. The coroner did not notify the Albrechts that the brain was going to be destroyed. The Albrechts learned that their son's body was missing the brain when they received the autopsy report months later, long after burying their son. The Albrechts filed suit, claiming a violation of the Due Process Clause of the Fourteenth Amendment and common law tort liability. The suit was certified as a class action, and the Albrechts represent a class of similarly-situated plaintiffs whose deceased family members' bodies were returned to them missing tissues or organs that the coroner retained for further study in the course of a criminal investigation.

II. Standard of Review

“Motions for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) are analyzed under the same de novo standard as motions to dismiss pursuant to Rule 12(b)(6).” Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291, 295 (6th Cir.2008). Courts “must construe the complaint in the light most favorable to plaintiff,” League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir.2007) (citation omitted), “accept all well-pled factual allegations as true[,]” id., and determine whether the “complaint states a plausible claim for relief[,]” Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009). However, the plaintiff must provide the grounds for its entitlement to relief, Bovee v. Coopers & Lybrand C.P.A., 272 F.3d 356, 361 (6th Cir.2001), and that “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A plaintiff must “plead [ ] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949. A plaintiff falls short if she pleads facts “merely consistent with a defendant's liability” or if the alleged facts do not “permit the court to infer more than the mere possibility of misconduct....” Id. at 1949, 1950.

III. DiscussionA. Ohio Supreme Court's Ruling in Albrecht II

The Albrechts argue that under Brotherton v. Cleveland, 923 F.2d 477 (6th Cir.1991), and Whaley v. County of Tuscola, 58 F.3d 1111 (6th Cir.1995), they had a constitutionally protected property interest in their son's discarded brain. In

617 F.3d 894

Brotherton, the plaintiff objected to the donation of her deceased husband's organs at the hospital. This objection, however, was not conveyed to the county coroner, who removed the decedent's corneas pursuant to an Ohio statute which “permitted 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 ... the person authorized to dispose of the body.” Brotherton v. Cleveland, 923 F.2d at 478. We reversed the district court's dismissal of the plaintiff's § 1983 claims, finding that the plaintiff had the right to possession of her husband's body for the limited purpose of lawfully disposing of it Id. At issue in Brotherton, however, was part of Ohio's adoption of the Uniform Anatomical Gift Act, which expressly granted next of kin the right to dispose of a relative's remains.¹ There is no similar statute at issue in this case.

Whaley is a direct progeny of Brotherton and arose under similar facts. The plaintiffs in Whaley were the next of kin of persons whose bodies were the subject of autopsies and whose corneas or eyeballs were removed, either without the consent of the next of kin, or after the objection of their next of kin. The Whaley court held that under Michigan law, “the next-of-kin [have] a legitimate claim of entitlement and thus a property interest in a dead relative's body, including the eyes.” Whaley v. County of Tuscola, 58 F.3d 1111, 1117 (6th Cir.1995). The Albrechts maintain that Brotherton and Whaley control the outcome in this case, arguing that their right to their son's brain is constitutionally equal to the plaintiffs' rights in Brother...