You Vang Yang v. Sturner, Civ. A. No. 88-0242.

• Decision Date: 12 January 1990
• Docket Number: Civ. A. No. 88-0242.
• Citation: 728 F. Supp. 845
• Parties: YOU VANG YANG, Ia Kue Yang v. William Q. STURNER, Individually and in his capacity as Chief Medical Examiner for the State of Rhode Island.
• Court: U.S. District Court — District of Rhode Island

728 F. Supp. 845

YOU VANG YANG, Ia Kue Yang v. William Q. STURNER, Individually and in his capacity as Chief Medical Examiner for the State of Rhode Island.

Civ. A. No. 88-0242.

United States District Court, D. Rhode Island.

January 12, 1990.

Amato DeLuca, Providence, R.I., for plaintiff.

Barbara E. Grady, Sp. Asst. Atty. Gen. State of R.I., Providence, R.I., for defendant.

OPINION

PETTINE, Senior District Judge.

This sad case pits You Vang Yang and Ia Kue Yang, a couple whose deeply-held religious beliefs prohibit the mutilation of the body through an autopsy, against Rhode Island's chief medical examiner, who performed an autopsy on their deceased son. Making the case all the more tragic are recent developments in the Supreme Court that, applied to this case, leave the Yangs without an adequate remedy under § 1983 to assuage their understandable grief over the death of their son, grief compounded by the treatment of his body at the hands of the defendant.

Believing that the defendant's actions violated their constitutional rights, the Yangs instituted this suit. Now before me are the parties' cross motions for summary judgment and defendant's motion to dismiss based on Will v. Michigan Dep't of State Police, ___ U.S. ___, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989).

I. BACKGROUND OF THE CASE¹

The Yangs, members of the Hmong community, immigrated to the United States from Laos.² They adhere to the religious beliefs of the Hmongs, one of which prohibits any mutilation of the body, including autopsies or the removal of organs during an autopsy.³

On December 21, 1987, their son, Neng Yang, then 23 years old, suffered a seizure while he was sleeping. He lost consciousness. An ambulance rushed him to Rhode Island Hospital. Despite the efforts of the hospital staff, Neng Yang never regained consciousness and died three days later, on December 24. The doctors in charge of Neng Yang during his short stay at the hospital could not determine the cause of his seizure or of his death. Because of the unexplained nature of Neng Yang's death, Dr. Louis Weiner, an Assistant Resident at Rhode Island Hospital, contacted the state medical examiners' office, as he was required to do by state law. See R.I.Gen. Laws § 23-4-7 (1989).

Dr. Edward J. Murray, Assistant Medical Examiner for Rhode Island, accepted jurisdiction for the investigation into Neng Yang's death and had Neng Yang's body delivered to the Medical Examiners' office on the day Yang died. There, without the permission or knowledge of the Yangs, Dr. Sturner performed an autopsy on Neng Yang's body on December 25. The autopsy failed to uncover a cause for Neng Yang's death.

Dr. Sturner, as Chief Medical Examiner, supervises, and has the duty to administer and enforce the laws of Rhode Island concerning, the medical examiners' office. See id. § 23-4-5. His office is responsible for "the performance of autopsies, when appropriate, for deaths which in its judgment might reasonably be expected to involve causes of deaths enumerated in state law." Id. § 23-4-3(3).

Under state law, any person with knowledge of a death occurring "in any manner to suggest the possibility of a criminal act or as the result of violence or apparent suicide, or from a criminal abortion or in any suspicious or unusual manner" shall notify the police or the medical examiners' office. Id. § 23-4-7. Doctors and hospital personnel, among others, must report to the same office any death occurring

in any unnatural manner, or as the apparent result of the negligence of another person, or as the consequence of any physical or toxic injury incurred while employed, or from the use of any addictive or unidentifiable chemical agent, or from accidental hypothermia, or from an infectious agent capable of spreading an epidemic within the state.

Id. § 23-4-7(c).

But the medical examiners' office does not have the authority to investigate a death in all those instances. It has the authority to conduct autopsies,⁴ inquests,⁵ and postmortem examinations⁶ only

where there may be in its judgment a reasonable belief that the manner of death could be pronounced as:

(1) Death by homicide, suicide, or casualty;

(2) Death due to criminal abortion;

(3) Death due to an accident involving lack of due care on the part of a person other than the deceased;

(4) Death which is the immediate or remote consequences of any physical or toxic injury incurred while the deceased person was employed;

(5) Death due to the use of addictive or unidentifiable chemical agents; or

(6) Death due to an infectious agent capable of spreading an epidemic within the state.

Id. § 23-4-4. Sturner justifies his autopsy of Neng Yang as necessary to "ensure that the cause of death was not attributable to some act or agent that posed a threat to the health, safety and welfare of the citizens of ... Rhode Island." Defendant's Memorandum in Support of a Motion for Summary Judgment at 8. Alternatively, he argues that the significantly more lenient regulations his office promulgated under the authority of state law authorized the autopsy of Neng Yang:

Autopsies shall be performed by the Medical Examiner in those cases where, in the judgement sic of the Medical Examiner, the cause of death cannot be established with a reasonable degree of certainty.... In such cases autopsies may be performed by the Medical Examiner on all reportable deaths without requiring permission of next of kin or legal representative.

Rhode Island Department of Health, Office of State Medical Examiners, Regulation 806.1.

The Yangs, on the other hand, claim that the statute and regulations, facially and as applied by Sturner, violate their first amendment right to exercise their religion freely and their fourteenth amendment rights to due process and equal protection. The Yangs also argue that Sturner acted outside the authority vested in his office by the statute and regulations and that the regulations exceed the authority of the statute. Finally, they contend that Sturner committed a tort against them when he performed the autopsy. They seek declaratory relief, compensatory and punitive damages, costs, and attorneys' fees. Jurisdiction is invoked under 28 U.S.C. §§ 1331, 1343, 2201, and 2202, and pendent and ancillary jurisdiction.

II. DEFENDANT'S MOTION TO DISMISS

Dr. Sturner argues, correctly, that the Supreme Court in Will foreclosed § 1983 suits⁷ for damages against states, and state officials acting in their official capacity, because states are not "persons" for the purpose of § 1983. See Will, 109 S.Ct. at 2312. Justice White, writing for the Court, observed that "obviously, state officials literally are persons. But a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. As such it is no different from a suit against the State itself." See id. at 2311 (citation omitted).⁸

The Yangs attempt to evade Will by claiming that, because the Court argued that § 1983 did not override common law sovereign or eleventh amendment immunity, states are still "persons" under § 1983 if they have waived their immunity to suit. Therefore, according to the Yangs, because Rhode Island has waived its immunity, see Della Grotta v. Rhode Island, 781 F.2d 343, 347 (1st Cir.1986); Marrapese v. Rhode Island, 500 F.Supp. 1207, 1223 (D.R. I.1980); Laird v. Chrysler Corp., 460 A.2d 425, 430 (R.I.1983), it can still be sued for damages under § 1983. Unfortunately, plaintiffs impermissibly telescope the analysis under § 1983 and the eleventh amendment. The scope of § 1983 and the eleventh amendment are separate issues. See Will, 109 S.Ct. at 2309. A state may waive its eleventh amendment immunity and still not be a "person" under § 1983. Compare Della Grotta, 781 F.2d at 348 n. 6 ("That a state may be immune from suit under the eleventh amendment does not require the conclusion that it is not a `person' under § 1983."). The scope of § 1983 is determined by plain language of the statute and the legislative history and congressional intent supporting it, see Will, 109 S.Ct. at 2308-11, considerations that have little relevance to the scope of a state's eleventh amendment immunity. Given the holding in Will, this Court has no alternative but to dismiss the Yangs' damage claim under § 1983 against Dr. Sturner in his official capacity.

All is not lost for the Yangs, however. Their request for declaratory relief⁹ and their state law claims remain viable. In addition, they have an implied cause of action for damages against Dr. Sturner under Bivens v. Six Unknown Named Agents of the FBI, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

III. THE YANGS' BIVENS ACTION

There can be little question that this Court has the power to allow the Yangs to sue directly under the Constitution to enforce their constitutional rights.¹⁰ "`Where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief.'" Id. at 392, 91 S.Ct. at 2002 (quoting Bell v. Hood, 327 U.S. 678, 684, 66 S.Ct. 773, 777, 90 L.Ed. 939 (1946)); see also Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163, 2 L.Ed. 60 (1803) ("The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right."). The Constitution is not a complex legal code, see Davis v. Passman, 442 U.S. 228, 241, 99 S.Ct. 2264, 2275, 60 L.Ed.2d 846 (1979) (quoting McCulloch v. Maryland, 17 U.S. (4 Wheat.) 314, 407, 4 L.Ed. 579 (1819)), but rather designates rights that the judiciary has the primary duty to enforce. See id. "Unless such rights are to become merely precatory, the class of those litigants who allege that their own constitutional rights have been violated, and who at the same time have no...