Avery v. Burke County

Decision Date02 October 1981
Docket NumberNo. 80-1691,80-1691
PartiesVirginia Ann AVERY, Appellant, v. COUNTY OF BURKE; Burke County Board of Health; Burke County Board of Social Services, Appellees. and Biomedical Reference Laboratories, Incorporated; C. W. Ellison, M.D.; C. W. Ellison, M.D., individually and in his professional relationship with Burke County Board of Health; James A. Blakely, individually and as Burke County Health Director, and Burke County Director of Social Services; C. J. Dellinger, M.D.; Donald Lambeth; Alfred Lytle; Gilmer Lowman; Callie Gregory; Clifford Stamper, D.D.S.; Mrs. Jane Gibson; Al Summers; and Gail Gay, individually and as members of Burke County Board of Health; George Squillario; Laura O'Neil; Bettie Hooks; E. R. Vaught; Major Buff, individually and as members of Burke County Board of Social Services; Linda K. York; Raye Faulkner, individually and as employees of Burke County Board of Health; Gail Moore, individually and as employee of Burke County Board of Social Services, Defendants.
CourtU.S. Court of Appeals — Fourth Circuit

Louis E. Vinay, Jr., James Reid Simpson, II, Morganton, N. C. (Dan R. Simpson, Simpson, Aycock, Beyer & Simpson, P. A., Morganton, N. C., on brief), for appellant.

Thomas Gene Smith, Valdese, N. C. (W. Harold Mitchell, Mitchell, Teele, Blackwell & Mitchell, Valdese, N. C., on brief) for appellees.

Before BUTZNER, Circuit Judge, FIELD, Senior Circuit Judge, and RICHARD C. ERWIN, United States District Judge for the Middle District of North Carolina, sitting by designation.

BUTZNER, Circuit Judge:

Virginia Avery appeals a summary judgment dismissing the County of Burke, North Carolina, its Board of Health, and its Board of Social Services from her suit brought under 42 U.S.C. § 1983. 1 Avery maintains that the county, the boards, and several individuals wrongfully caused her sterilization after informing her that she had sickle cell trait. We believe that there remain genuine issues of material fact concerning the appellees' liability. Accordingly, we vacate the entry of summary judgment and remand the case with directions that the complaint against the appellees be tried along with the claims against the other defendants.

I

The facts, viewed in the light most favorable to the appellant, show that Avery became pregnant at the age of 15. She sought pre-natal care at a clinic operated by the Burke County Health Department, an agency of the Board of Health. Following a blood test, nurses at the clinic told Avery that she had sickle cell trait. This is the carrier gene state of sickle cell syndrome which exclusively affects black people.

The nurses urged her to consider sterilization. They told Avery and her mother that because Avery had sickle cell trait, childbirth would either immediately endanger her life or take two or three years off of her life. They cautioned that a woman with sickle cell trait is unable to take birth control pills. One nurse subsequently told Avery and her mother that it would be to their advantage to sign the sterilization consent form. A doctor associated with the clinic also recommended sterilization after warning that pregnant women with sickle cell trait are more susceptible to numerous diseases. Based on these representations, Avery and her mother consented to the sterilization.

A social worker trainee of the Burke County Department of Social Services, an agency of the Board of Social Services, was assigned to assist the Averys. She accompanied them to state court where, based upon the clinic doctor's recommendation, the sterilization was authorized pursuant to N.C.Gen.Stat. § 90-272. After she was sterilized, she discovered through subsequent testing that she did not have sickle cell trait.

Avery brought this suit under 42 U.S.C. § 1983 against the Health Department nurses, the doctor associated with the clinic, the social worker trainee, the county and its two boards, and the individual members and director of the boards for deprivation of her rights of privacy and procreation in violation of the fourteenth amendment. She contends that she was wrongfully sterilized because she did not have sickle cell trait and because sterilization is not medically recommended or proper, even when there has been a correct diagnosis of the trait. She consented to the sterilization, Avery maintains, solely because of the misrepresentations and exhortations of individuals associated with or employed by the boards.

Following extensive discovery, the defendants moved for summary judgment. The district court found that the evidence was insufficient "to establish any policy, practice, pattern, custom, deliberate indifference or tacit authorization of the offensive acts on the part of the County or the Boards and their members sufficient to constitute liability under 42 U.S.C.A. § 1983." Consequently, it concluded that there was no genuine issue of material fact with regard to the county or the boards and granted their motions for summary judgment. The court denied the motions for summary judgment filed by the other defendants.

II

At the outset, we note that the county is a proper and necessary party to resolve Avery's claim against the boards. The capacity of a governmental body to be sued in the federal courts is governed by the law of the state in which the district court is held. Fed.R.Civ.P. 17(b); 3A Moore's Fed.Prac. § 17.19 at 17-199; 6 Wright & Miller, Fed.Prac. & Proc. § 1562 at 738. A North Carolina statute expressly provides that a county is a legal entity which may sue and be sued. N.C.Gen.Stat. § 153A-11.

Neither the Board of Health nor the Board of Social Services is a legal entity separate and apart from the county. Both boards are created by, and are extensions of, the county. N.C.Gen.Stat. §§ 108-7 and 130-13. Consequently, if Avery is entitled to recover damages under § 1983 because of the boards' conduct, the county would be liable.

III

In Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978), the Supreme Court held that a local government may be liable under § 1983 for an injury caused by a "policy or custom ... made by its lawmakers or ... those whose edicts or acts may fairly be said to represent official policy ...." These constitutional deprivations may be "visited pursuant to governmental 'custom' even though such a custom has not received formal approval through the body's official decisionmaking channels." 436 U.S. at 691, 98 S.Ct. at 2036. On the other hand, "a municipality cannot be held liable solely because it employs a tortfeasor or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory." 436 U.S. at 691, 98 S.Ct. at 2036.

The county and the boards may be liable under § 1983 if their policies or customs actually caused Avery's injuries. See Monell, 436 U.S. at 691, 98 S.Ct. at 2036. Avery need not prove, however, that members of the boards personally participated in, or expressly authorized, her sterilization. See Sims v. Adams, 537 F.2d 829, 831 (5th Cir. 1976). Official policy may be established by the omissions of supervisory officials as well as from their affirmative acts. In Withers v. Levine, 615 F.2d 158 (4th Cir. 1980), we held that supervisory officials charged with the responsibility of making rules may be subject to § 1983 liability where their unreasonable failure to make rules causes their employees' unconstitutional practices. Accord, Dimarzo v. Cahill, 575 F.2d 15, 17-18 (1st Cir. 1978). Thus, the conduct of the boards may be actionable if their failure to promulgate policies and regulations rose to the level of deliberate indifference to Avery's right of procreation or constituted tacit authorization of her sterilization. See Estelle v. Gamble, 429 U.S. 97, 105-06, 97 S.Ct. 285, 291-92, 50 L.Ed.2d 251 (1976); Turpin v. Mailet, 619 F.2d 196, 201 (2d Cir. 1980); Note, Municipal Liability under Section 1983: The Meaning of "Policy or Custom," 79 Columbia L.Rev. 304, 309-18 (1979). This issue generally is one of fact, not law. See Turpin, 619 F.2d at 201.

A single incident or isolated incidents are normally insufficient to establish supervisory inaction upon which § 1983 liability may be based. Woodhous v. Virginia, 487 F.2d 889 (4th Cir. 1973). It is not essential, however, that Avery show that all persons suspected of having the sickle cell trait have been mistreated. It is enough that an identifiable group of people, of whom Avery is a part, is subject to constitutional deprivations through the inaction of the boards. Withers v. Levine, 615 F.2d 158, 161 (4th Cir. 1980).

IV

There can be no doubt that North Carolina law required both boards to supervise their employees and to promulgate guidelines and policies to protect the health and well-being of the citizens of the county. N.C.Gen.Stat. § 130-17(b) states, in part, that "(t)he local boards of health shall make such rules and regulations, not inconsistent with law, as are necessary to protect and advance the public health." The Board of Social Services is required to "advise county and municipal authorities in developing policies and plans to improve the social conditions of the community." N.C.Gen.Stat. § 108-15(2). Furthermore, North Carolina has recognized that the prevalence of sickle cell syndrome is a matter of statewide and local concern. N.C.Gen.Stat. §§ 143B-188, et seq. The state has specifically...

To continue reading

Request your trial
159 cases
  • Weigle v. Pifer
    • United States
    • U.S. District Court — Southern District of West Virginia
    • 14 October 2015
    ...a governmental entity even if the plaintiff does not name a specific supervisory official as a defendant. See , e.g. , Avery v. Burke County , 660 F.2d 111 (4th Cir.1981). However, when advancing a failure to supervise claim, "liability ultimately is determined 'by pinpointing the persons i......
  • Waller v. Butkovich
    • United States
    • U.S. District Court — Middle District of North Carolina
    • 17 April 1984
    ...for their omissions as well as their commissions. Wellington v. Daniels, 717 F.2d 932, 935-936 (4th Cir.1983); Avery v. County of Burke, 660 F.2d 111, 114 (4th Cir.1981); Withers v. Levine, 615 F.2d 158, 161 (4th Cir.1980), cert. den. 449 U.S. 849, 101 S.Ct. 136, 66 L.Ed.2d 59 (1980). Inact......
  • Spell v. McDaniel
    • United States
    • U.S. District Court — Eastern District of North Carolina
    • 12 July 1984
    ...a municipality's omissions as well as from its acts. Wellington v. Daniels, 717 F.2d 932, 935-36 (4th Cir.1983); Avery v. County of Burke, 660 F.2d 111, 114 (4th Cir.1981); Turpin v. Mailet, 619 F.2d at 202. However, in this circuit, such omissions are actionable only if they constitute "ta......
  • Webster v. City of Houston
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 9 July 1984
    ...670 F.2d 30, 32-33 & n. 1 (5th Cir.1982).39 See, e.g., Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir.1983); Avery v. County of Burke, 660 F.2d 111, 114 (4th Cir.1981); Turpin v. Mailet, 619 F.2d 196, 200-01 (2d Cir.) (relying on Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT