Brotherton v. Cleveland

Decision Date03 April 1991
Docket NumberNo. 89-3820,89-3820
Citation923 F.2d 477
PartiesDeborah 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 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.
CourtU.S. Court of Appeals — Sixth Circuit

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 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 than random and unauthorized action," Hudson v. Palmer, 468 U.S. 517, 532, 104 S.Ct. 3194, 3203, 82 L.Ed.2d 393 (1984), or (2) the means of redress for property deprivations provided by the state of Ohio fail to satisfy the requirements of procedural due process. Parratt, 451 U.S. at 537, 101 S.Ct. at 1914; see Wilson v. Beebe, 770 F.2d 578, 583 (6th Cir.1985) (en banc). We noted the under color of state law requirement is easily met in this case; so is the deprivation requirement. Cf. Daniels v. Williams, 474 U.S. 327, 334, 106 S.Ct. 662, 666, 88 L.Ed.2d 662 ("the difference between one end of the spectrum--negligence--and the other--intent--is abundantly clear."). Under the established policy of the coroner's office, Steven Brotherton's corneas were intentionally taken from his body. His wife did not learn of this until she read the autopsy report. The viability of Deborah Brotherton's section 1983 claim, therefore, is dependent upon her having a constitutionally protected property interest in her husband's corneas.

Property interests protected by the due process clause must be more than abstract desires or attractions to a benefit. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). The due process clause only protects those interests to which one has a "legitimate claim of entitlement." Id. at 577, 92 S.Ct. at 2709. This has been defined to include " 'any significant property interests,' Boddie v. Connecticut, 401 U.S., at 379 [91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971) ], including statutory entitlements. See Bell v. Burson, 402 U.S. at 539 [91 S.Ct. 1586, 1589, 29 L.Ed.2d 90 (1971) ]; Goldberg v. Kelly, 397 U.S. at 262 [90 S.Ct. 1011, 1017, 25 L.Ed.2d 287 (1970) ]." Fuentes v. Shevin, 407 U.S. 67, 86, 92 S.Ct. 1983, 1997, 32 L.Ed.2d 556 (1972).

To determine whether Deborah Brotherton's interest in her husband's corneas rises to the level of a "legitimate claim of entitlement" protected by the due process clause, we must examine the laws of the state of Ohio. Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 9, 98 S.Ct. 1554, 1560, 56 L.Ed.2d 30 (1978). In Roth, the Supreme Court stated that property interests protected by the due process clause "are created and their dimensions defined by existing rules or understandings that stem from an independent source such as state law...." 408 U.S. at 577, 92 S.Ct. at 2709. State supreme court decisions are the controlling authority for such determinations. Clutter v. Johns-Manville Sales Corp., 646 F.2d 1151, 1153 (6th Cir.1981). However, the Ohio Supreme Court has not ruled upon the precise issue before this Court; thus, we must look to "other indicia of state law...." Kveragas v. Scottish Inns, Inc., 733 F.2d 409, 412 (6th Cir.1984). This "indicia" includes state appellate court decisions, unless there is persuasive data that the Supreme Court of Ohio would decide otherwise. Clutter, 646 F.2d at 1153.

A majority of the courts confronted with the issue of whether a property interest can exist in a dead body have found that a property right of some kind does exist and often refer to it as a "quasi-property right." In re Estate of Moyer, 577 P.2d 108, 110 n. 5 (Utah 1978); see, e.g., Arnaud v. Odom, 870 F.2d 304, 308 (5th Cir.1989), cert. denied sub nom. Tolliver v. Odom, --- U.S. ----, 110 S.Ct. 159, 107 L.Ed.2d 117 (1989) (...

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