Darnell v. Lloyd, Civ. No. H-75-33.

• Court: United States District Courts. 2nd Circuit. United States District Court (Connecticut)
• Citation: 395 F. Supp. 1210
• Docket Number: Civ. No. H-75-33.
• Parties: Diana M. DARNELL v. Douglas LLOYD, Commissioner of Health, State of Connecticut.
• Decision Date: 13 May 1975

395 F. Supp. 1210

Diana M. DARNELL
v.
Douglas LLOYD, Commissioner of Health, State of Connecticut.

Civ. No. H-75-33.

United States District Court, D. Connecticut.

May 13, 1975.

395 F. Supp. 1211

Louis I. Parley, University of Conn. Legal Clinic, West Hartford, Conn., for plaintiff.

F. Michael Ahern, Richard J. Lynch, Asst. Attys. Gen., Hartford, Conn., for defendant.

RULING ON PENDING MOTION

BLUMENFELD, District Judge.

The plaintiff in this case is suing the state Commissioner of Health¹ in order to have the sex recorded upon her birth certificate changed from "male" to "female." She claims that the Commissioner's refusal to make this change is state action violative of certain of her constitutional rights, and thus brings this suit under 42 U.S.C. § 1983 (1970).² The Commissioner claims that he has done nothing that violates the plaintiff's constitutional rights, moving either to dismiss for failure to state a claim upon which relief can be granted or for summary judgment. Because substantial documentary evidence has been presented to and not excluded by the court, the motion will be treated as one for summary judgment. Fed.R.Civ.P. 12(b).

The Commissioner in part bases his motion on two procedural points. The first is that this suit is barred by the doctrine of res judicata. When Darnell requested the Commissioner to change the sex designation on her birth certificate he held a hearing on the matter at which Darnell was represented by counsel and presented both documentary and testimonial evidence in her own behalf. Commissioner Foote thereafter denied Darnell's request. Darnell appealed his decision under the state Administrative Procedure Act, see Conn. Gen.Stat.Ann. § 4-183(a) (Supp.1975), by filing a petition in the Court of Common Pleas. However, the petition was not filed within 30 days after mailing of the notice of the final decision of the Commissioner, as required by Conn. Gen.Stat.Ann. § 4-183(b) (Supp.1975), and the court sustained the Commissioner's plea in abatement on that ground. Darnell v. Lloyd, No. 23916 (C.P. New London County Mar. 6, 1974). The Commissioner now claims that the above sequence is res judicata as to Darnell's claims.

The Commissioner's position is clearly incorrect. Judge Kaufman faced and decided this precise point several years ago in a case that apparently escaped the defendant's notice:

"At the outset we are presented with the contention that the claims asserted below are res judicata. We consider this to be wholly without merit. Appellees argue that James, at his own choosing, was given the full opportunity to litigate his claims before

395 F. Supp. 1212

the Commissioner of Education, a `judicial officer' of the State, and therefore that James should be bound by the Commissioner's decision. . . .

". . . It is still the law in this Circuit . . . that a Civil Rights plaintiff must exhaust state administrative remedies. Eisen v. Eastman, 421 F.2d 560 (2d Cir. 1969), cert. denied, 400 U.S. 841, 91 S.Ct. 82, 27 L. Ed.2d 75 (1970). It hardly can be suggested that a plaintiff having followed the course laid out by Eisen, was to be barred henceforth from pressing his claim to final judicial review or to be deprived of his opportunity to litigate his constitutional claims in the judicial forum of his choice. To adopt the full implication of appellees' argument would be to effect a judicial repeal of 42 U.S.C. § 1983 . . .. James would be placed in the paradoxical position of being barred from the federal courts if he had not exhausted administrative remedies and barred if he had."

James v. Board of Educ., 461 F.2d 566, 570-571 (2d Cir.) (footnote omitted), cert. denied, 409 U.S. 1042, 93 S.Ct. 529, 34 L.Ed.2d 491 (1972). Thus the Second Circuit has apparently decided that the rule of United States v. Utah Constr. & Mining Co., 384 U.S. 394, 422, 86 S.Ct. 1545, 1560, 16 L.Ed.2d 642 (1966), upon which the Commissioner relies,³ does not apply to suits under 42 U.S.C. § 1983 (1970).⁴

The fact that the Court of Common Pleas refused to reverse the Commissioner's determination because Darnell's appeal was taken late adds no res judicata effect to the determination.

"That court's dismissal of the plaintiff's appeal was not a decision on the merits and thus does not constitute a bar to further litigation. Restatement of Judgments § 49 (1942). . . . `If a judgment of dismissal is rendered on jurisdictional grounds, the losing party may accept it; and, instead of seeking a review, may institute another action where one will not be met by the jurisdictional bar.' Illinois Cent. R. R. Co. v. Mississippi Pub. Serv. Comm'n, 135 F.Supp. 304, 306 (S.D.Miss.1955); Kipbea Baking Co. v. Strauss, 218 F. Supp. 696, 699 (E.D.N.Y.1963)."

Hollander v. Sears, Roebuck & Co., 392 F.Supp. 90, at 95 (D.Conn.1975).

The defendant's second attempt to make procedural grounds dispositive of this case was raised for the first time at oral argument of this motion, when counsel argued that this is a proper case for application of the abstention doctrine. His argument apparently derives from the fact that the only direct statutory authority for the Commissioner to make changes on the birth certificate does not seem to apply to changes in designations of sex.⁵ I am asked to allow

395 F. Supp. 1213

the state courts to determine whether the Commissioner has the power under this statute to make the change Darnell requested. Darnell finds such an inquiry irrelevant, for she asserts that the Commissioner has the power to make changes other than those specifically authorized by statute under his general mandate to supervise birth records. See Conn.Gen.Stat.Ann. §§ 19-4, 19-14 to -15 (1969). As the plaintiff points out, other changes to birth certificates are made for which no specific statutory authority exists,⁶ and in considering Darnell's case the...