Melton v. Bd. of County Com'Rs of Hamilton County

Decision Date07 May 2003
Docket NumberNo. C-1-01-528.,C-1-01-528.
Citation267 F.Supp.2d 859
PartiesRonald MELTON, et al., Plaintiffs, v. BOARD OF COUNTY COMMISSIONERS OF HAMILTON COUNTY, OHIO, et al., Defendants.
CourtU.S. District Court — Southern District of Ohio

Michael Blaine Ganson, Michael B. Ganson Co. LPA, David Wolf Kapor, Cincinnati, OH, for plaintiffs.

Louis Francis Gilligan, Jamie M. Ramsey, Keating, Muething & Klekamp, Lawrence Edward Barbiere, Michael Edward Maundrell, Schroeder, Mundrell, Barbiere & Powers, Stephen James Patsfall, Stephen Michael Yeager, Patsfall, Yeager & Pflum LLC, John Charles Scott, Joseph T. Mordino, Faulkner & Tepe, Cincinnati, OH, Arthur James Marziale, Jr., Columbus, OH, for defendants.

Thomas Condon, Bloomington, IN, pro se.

Jonathan Tobias, Cincinnati, OH, pro se.

ORDER

SPIEGEL, Senior District Judge.

This matter is before the Court on three motions considered by the Court at a hearing on April 16, 2003. First, the Motion of Defendants Neyer, Dowlin, Portune, Parrott and Pfalzgraf to Dismiss, in Part, Plaintiffs' First Amended Complaint (doc. 7), Plaintiffs' Memorandum in Opposition (doc. 12), and Defendants' Reply (doc. 21). Second, Plaintiffs' Motion to Certify Question of Constitutionality of Immunity Defense to Ohio Supreme Court (doc. 26), Defendants' Response (doc. 28), and Plaintiffs' Reply (doc. 30). Third, the Motion of Defendant Thomas Condon for Judgment on Pleadings to Dismiss, In Part, Plaintiffs' Complaint (doc. 41), Plaintiffs' Response (doc. 54), and Defendant Condon's Reply (doc. 61).

This case is brought by the surviving siblings of Perry Melton, who died November 9, 2000 (doc. 16). Plaintiffs state that after his death, the body of Perry Melton was entrusted to the care and custody of Hamilton County, Ohio, through its county morgue (Id.). Plaintiffs allege that the Hamilton County Defendants granted Defendant Thomas Condon, a photographer, access to the body of their brother and allowed Mr. Condon to take photographs of his body for commercial purposes (Id.). Plaintiffs specifically allege that Defendant Condon "photographed, posed, touched, manipulated, came into possession of photographs, and/or otherwise abused and/or violated the corpse of the decedent, Perry Melton, for purposes of commercial exploitation" (Id.). Plaintiffs bring this action under 42 U.S.C. § 1983 raising federal constitutional due process and equal protection claims against numerous Defendants including but not limited to the following officials or employees of Hamilton County, Ohio: Carl L. Parrot, Jr. M.D., Coroner for Hamilton County, Robert Pfalzgraf, M.D., Deputy Coroner for Hamilton County, and John S. Dowlin, Todd Portune, and Tom Neyer, Jr., members or former members of the Hamilton County Board of Commissioners.

Plaintiffs also alleged a number of pendent state law claims, which the Court dismissed from the case without prejudice in its December 11, 2002 opinion (doc. 56). Having done so, the Court did not explicitly dispose of Defendant Commissioners' Motion to Dismiss, in Part (doc. 7), nor deny Plaintiffs' Motion to Certify as moot (doc. 26). Instead, on February 26, 2003, the Court scheduled oral arguments "on the surviving legal claims" in such motions, as well as Defendant Condon's Motion for Judgment on the Pleadings (doc. 41).

Having reviewed the motions in question, the Court finds that there are no "surviving legal claims" at issue in the Commissioners' Motion to Dismiss, as all the challenged claims pertained to state law, with the exception of the challenge to Plaintiffs' claim for punitive damages against a municipality, which Plaintiffs conceded is precluded by federal case law (doc. 12). As such, the Court now formally denies Defendant Commissioners' Motion as moot (doc. 7). Similarly, as the state claims were dismissed on December 11, 2002, there is no reason to certify the question of the constitutionality of Ohio Revised Code Chapter 2744 to the Ohio Supreme Court, and therefore the Court now denies Plaintiffs' Motion (doc. 26) as moot.

Defendant Condon's Motion for Judgment on the Pleadings, (doc. 41), included attacks upon both state and federal claims made by Plaintiffs. Therefore, in contrast to the aforementioned motions, Defendant Condon's motion contains two surviving legal claims yet at issue: Plaintiffs Section 1983 claims for deprivation of property and for invasion of privacy/violation of right to publicity. Though the Court has already stated that it would maintain jurisdiction over Plaintiffs Section 1983 claim based upon a violation of substantive due process by actions that "shock the conscience" (doc. 56), the viability of claims based upon theories of deprivation of property or invasion of privacy, as alleged by Plaintiffs, has yet to be decided. The parties presented their arguments as to these claims at the April 16, 2003 hearing.

I. Deprivation of Property Claim

Defendant Condon argues that while the Sixth Circuit has recognized that a relative has a constitutionally protected property interest in a deceased relative's body, citing Brotherton v. Cleveland, there has been no deprivation of that interest in this case (doc. 41). Defendant Condon's argument is premised on the theory that previous jurisprudence dealing with such property interests involved instances where bodies were mutilated or parts of bodies were removed (Id,). In this case, Condon posits, only photographs of the dead body were found in his possession. As no body part was stolen or damaged, Defendant Condon argues, there was no deprivation (Id.).

Plaintiffs respond that the photographs of their brother's body do constitute property that Defendant Condon clearly intended to use as property to make money for himself (doc. 54). At the hearing, Plaintiffs argued that the taking of the photographs from decedent's file without the family's permission rises to the level of a constitutional violation because the taking happened in a government building, the taking was government-approved, and the taking shocks the conscience.

Defendants argued that photos of dead are used all the time without family permission, to chronicle the scene of death, and in the case of autopsy to chronicle the cause of death. Defendants argue that such photos are used in criminal proceedings and by pathologists who have used autopsy photos for educational seminars and books.

In considering a motion for judgment on the pleadings, the trial court is required to view the facts presented in the pleadings in the light most favorable to the non-moving party. 5A C. Wright & A. Miller, Federal Practice and Procedure § 1368 (1990). For purposes of the Court's consideration of the motion, all of the well pleaded factual allegations in the adversary's pleadings are assumed to be true and all contravening assertions in the movant's pleadings are taken to be false. Beal v. Missouri Pac. R.R. Corp., 312 U.S. 45, 61 S.Ct. 418, 85 L.Ed. 577 (1941). In addition to assuming the truthfulness of the factual allegations for purposes of the motion, all reasonable inferences from these facts are drawn in favor of the nonmoving party. Chicago, Milwaukee, St. Paul & Pac. R.R. Co. v. Alva Coal Corp., 365 F.2d 49 (7th Cir.1966).

Having reviewed Plaintiffs' deprivation of property claim, the Court finds sufficient allegations in their Complaint to deny Defendant Condon's motion. A common idiom describes property as a "bundle of sticks"—a collection of individual rights which, in certain combinations, constitute property. See B. Cardozo, Paradoxes of Legal Science 129 (1928) (reprint 2000). The Supreme Court has recognized that

[p]roperty is more than just the physical thing ... it is also the sum of all the rights and powers incident to the ownership of the physical thing. It is the tangible and the intangible. Property is composed of constituent elements and of these elements the right to use the physical thing to the exclusion of others is the most essential and beneficial. Without this right all other elements would be of little value.

Dickman v. Commissioner, 465 U.S. 330, 349-50, 104 S.Ct. 1086, 79 L.Ed.2d 343 (1984) {quoting Passailaigue v. United States, 224 F.Supp. 682, 686 (M.D.Ga. 1963)). As such, the Court finds that it is not necessary for Defendant Condon to have stolen a body part from the corpse of Plaintiffs' brother in order to have violated their property right to his body. According to the allegations, which for the purposes of evaluating this motion the Court must assume to be true, Defendant Condon photographed, posed, touched, manipulated, came into possession of photographs, and/or otherwise abused and/or violated the corpse of the decedent, Perry Melton, for purposes of commercial exploitation (doc. 16). These allegations, if true, show that Defendant Condon meddled with property interests of the Plaintiffs. As such, the Court denies Defendant Condon's Motion for Judgment on the Pleadings as to Plaintiffs' Section 1983 Claim for Deprivation of Property.

II. Invasion of Privacy/"Right of Publicity" Claim

Plaintiffs' Complaint alleges that Defendants' conduct amounts to a "taking" and conversion of their property rights without due process and in violation of the equal protection of the laws. Their first articulated theory was based on property rights they had in the physical remains of their deceased relative. As an alternative property theory, Plaintiffs next argue, citing Herman Miller, Inc. v. Palazzetti Imports and Exports, Inc., 270 F.3d 298 (6th Cir.2001) that the right of publicity is a pecuniary right and interest in the commercial exploitation of one's identity reflects property rights (doc. 54). Under this theory, without due process, Defendants took Plaintiffs' right to publicity in the commercial exploitation of the identity of their deceased brother.

Although the Court dismissed Plaintiffs' pendent state law claims, wishing to avoid novel questions of state law, this theory of...

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    ...Other courts have also recognized family members' privacy right in a decedent's death images. See Melton v. Bd. of Cnty. Comm'rs of Hamilton Cnty., 267 F.Supp.2d 859, 865 (S.D.Ohio 2003)(“[F]amilies have a right not to be embarrassed or humiliated by the outrageous display or exposure to pu......
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