Albrecht v. Treon

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0260p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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MARK ALBRECHT; DIANE ALBRECHT, Both
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individually and on behalf of others similarly
situated, -
Plaintiffs-Appellants, -
No. 09-3703

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>
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v.
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BRIAN TREON, M.D., Individually and in his
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official capacity as Coroner of Clermont

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County, Ohio, and on behalf of others
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similarly situated; BOARD OF COUNTY
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COMMISSIONERS OF CLERMONT COUNTY,
OHIO, for itself and on behalf of others -
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similarly situated; MARY WALKER, in her
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capacity as commissioner of Clermont
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County, Ohio, and on behalf of others
similarly situated; BOB PROUD, in his -
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capacity as commissioner of Clermont
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County, Ohio, and on behalf of others
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similarly situated; SCOTT CROSWELL, in his
capacity as commissioner of Clermont -
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County, Ohio, and on behalf of others

Defendants-Appellees. -
similarly situated,
N
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 06-00274—Susan J. Dlott, Chief District Judge.
Argued: August 6, 2010
Decided and Filed: August 24, 2010
Before: GUY and GRIFFIN, Circuit Judges; HOOD, Senior District Judge.*

*
The Honorable Joseph M. Hood, Senior United States District Judge for the Eastern District of
Kentucky, sitting by designation.

1
No. 09-3703 Albrecht, et al. v. Treon, et al. Page 2

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COUNSEL
ARGUED: John Henry Metz, LAW OFFICE, Cincinnati, Ohio, for Appellants.
H. Elizabeth Mason, CLERMONT COUNTY PROSECUTOR’S OFFICE, Batavia,
Ohio, for Appellees. ON BRIEF: John Henry Metz, LAW OFFICE, Cincinnati, Ohio,
Patrick J. Perotti, DWORKEN BERNSTEIN CO., LPA, Painesville, Ohio, for
Appellants. H. Elizabeth Mason, CLERMONT COUNTY PROSECUTOR’S OFFICE,
Batavia, Ohio, for Appellees. Mark D. Landes, David G. Jennings, Jennifer H. George,
ISAAC, BRANT, LEDMAN & TEETOR, Columbus, Ohio, David G. Lambert, Paul J.
Cristallo, Frederick W. Whatley, CUYAHOGA COUNTY PROSECUTOR’S OFFICE,
Cleveland, Ohio, for Amici Curiae.

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OPINION
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HOOD, Senior District Judge. Plaintiffs-Appellants Mark and Diane Albrecht,
et al. (“the Albrechts”) appeal the district court’s decision to grant judgment on the
pleadings in favor of Defendants-Appellees Brian Treon, et al. (hereinafter,
“Defendants”). The Albrechts brought a claim pursuant to 42 U.S.C. § 1983, alleging
that they were denied due process of law when the defendant coroner performed an
autopsy on the Albrechts’ son’s remains and removed the brain during the procedure.
When the body was returned to the Albrechts, they were not informed that the coroner
had retained the brain for further study and that it would be destroyed once the
investigation was complete. The Albrechts claim that the retention and destruction of
their son’s brain, without their knowledge, deprived them of the right to dispose of their
son’s brain, in violation of the Due Process Clause of the Fourteenth Amendment. The
Albrechts base this claim on their purported property interest in their son’s entire body,
including his brain. The Albrechts also brought common law tort claims against
Defendants, over which the district court exercised supplemental jurisdiction.

The district court was faced with the question of whether the Albrechts had a
constitutionally protected property interest in their son’s brain after it was removed and
retained for legitimate investigative purposes. As this was a question of first impression
No. 09-3703 Albrecht, et al. v. Treon, et al. Page 3

in Ohio, the district court certified the question to the Ohio Supreme Court. The Ohio
Supreme Court answered the question in the negative, stating that there is no
constitutionally protected property interest in human remains retained by the state of
Ohio for criminal investigation purposes. The district court consequently held that the
Albrechts had no property interest in the brain, and, thus, Defendants were entitled to
judgment on the pleadings. The Albrechts argue that the Sixth Circuit’s ruling in
Brotherton v. Cleveland, M.D., 923 F.2d 477 (6th Cir. 1991), holding that a spouse had
a protected property interest in her husband’s corneas, which were removed for donation
purposes, should rule this case, as opposed to the Ohio Supreme Court’s answer to the
certified question.

For the reasons which follow, the judgment of the district court is AFFIRMED.

I. Factual and Procedural Background

The coroner for Clermont County, Ohio, performed an autopsy on the Albrechts’
son’s remains. The autopsy required examination of their son’s brain. In order to
examine and dissect a human brain more effectively, the jelly-like organ must be soaked
in a formol saline solution for ten to fourteen days, a process referred to as “fixing” the
brain, which firms the brain tissue for dissection. Due to the lengthy process of fixing
the brain, it is the usual practice of the coroner to return the remains to next of kin for
disposition without the brain. The coroner did not inform the Albrechts that he retained
their son’s brain upon return of the body to them. When the examination of the brain
was completed, it was destroyed in accordance with the coroner’s usual practice. The
coroner did not notify the Albrechts that the brain was going to be destroyed. The
Albrechts learned that their son’s body was missing the brain when they received the
autopsy report months later, long after burying their son. The Albrechts filed suit,
claiming a violation of the Due Process Clause of the Fourteenth Amendment and
common law tort liability. The suit was certified as a class action, and the Albrechts
represent a class of similarly-situated plaintiffs whose deceased family members’ bodies
were returned to them missing tissues or organs that the coroner retained for further
study in the course of a criminal investigation.
No. 09-3703 Albrecht, et al. v. Treon, et al. Page 4

II. Standard of Review

“Motions for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c) are analyzed under the same de novo standard as motions to dismiss
pursuant to Rule 12(b)(6).” Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291, 295
(6th Cir. 2008). Courts “must construe the complaint in the light most favorable to
plaintiff,” League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir.
2007) (citation omitted), "accept all well-pled factual allegations as true[,]" id., and
determine whether the "complaint states a plausible claim for relief[,]" Ashcroft v. Iqbal,
--- U.S. ---, 129 S. Ct. 1937, 1950, 173 L. Ed. 2d 868 (2009). However, the plaintiff
must provide the grounds for its entitlement to relief, Bovee v. Coopers & Lybrand
C.P.A., 272 F.3d 356, 361 (6th Cir. 2001), and that “requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). A plaintiff must “plead[] factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 129 S. Ct. at 1949. A plaintiff falls short if she pleads facts
“merely consistent with a defendant's liability” or if the alleged facts do not “permit the
court to infer more than the mere possibility of misconduct . . . .” Id. at 1949, 1950.

III. Discussion

A. Ohio Supreme Court’s Ruling in Albrecht II

The Albrechts argue that under Brotherton v. Cleveland, 923 F.2d 477 (6th Cir.
1991), and Whaley v. County of Tuscola, 58 F.3d 1111 (6th Cir. 1995), they had a
constitutionally protected property interest in their son’s discarded brain. In Brotherton,
the plaintiff objected to the donation of her deceased husband’s organs at the hospital.
This objection, however, was not conveyed to the county coroner, who removed the
decedent’s corneas pursuant to an Ohio statute which “permitted 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 . . . the person authorized to
dispose of the body.” Brotherton v. Cleveland, 923 F.2d at 478. We reversed the district
No. 09-3703 Albrecht, et al. v. Treon, et al. Page 5

court’s dismissal of the plaintiff’s § 1983 claims, finding that the plaintiff had the right
to possession of her husband’s body for the limited purpose of lawfully disposing of it.
Id. At issue in Brotherton, however, was part of Ohio’s adoption of the Uniform
Anatomical Gift Act, which expressly granted next of kin the right to dispose of a
relative’s remains.1 There is no similar statute at issue in this case.

Whaley is a direct progeny of Brotherton and arose under similar facts. The
plaintiffs in Whaley were the next of kin of persons whose bodies were the subject of
autopsies and whose corneas or eyeballs were removed, either without the consent of the
next of kin, or after the objection of their next of kin. The Whaley court held that under
Michigan law, “the next-of-kin [have] a legitimate claim of entitlement and thus a
property interest in a dead relative’s body, including the eyes.” Whaley v. County of
Tuscola, 58 F.3d 1111, 1117 (6th Cir. 1995). The Albrechts maintain that Brotherton
and Whaley control the outcome in this case, arguing that their right to their son’s brain
is constitutionally equal to the plaintiffs’ rights in Brotherton and Whaley to their
relatives’ eyeballs or corneas. Defendants claim that Brotherton and Whaley are
distinguishable from the facts in this case, because removal and retention of tissue or
organ for donation purposes, as in Brotherton and Whaley, serve little function for the
state, and, thus, the relatives have greater property interest in the body parts. However,
removal and retention of tissues or organs for forensic analysis in furtherance of a
criminal investigation serves an important state function, which is paramount to the
Albrechts’ right to possess their son’s body in its entirety.

The Due Process Clause of the Fourteenth Amendment prohibits states from
depriving “any person of life, liberty, or property, without due process of law.” U.S.
Const. amend. XIV, § 1. “In order to establish a procedural due process claim, a plaintiff
must show that (1) he had a life, liberty, or property interest protected by the Due
Process Clause; (2) he was deprived of this protected interest; and (3) the state did not
afford him adequate procedural rights prior to depriving him of the property interest.”

1
That statute does not apply here, because this case relates to the rights of a coroner to possess,
examine, and dispose of a corpse, not the right of the next of kin to object or consent to organ donation.
No. 09-3703 Albrecht, et al. v. Treon, et al. Page 6

Women’s Med. Prof’l Corp. v. Baird, 438 F.3d 595, 611 (6th Cir. 2006) (citation
omitted). Property interests “are defined by existing rules or understandings that stem
from an independent source such as state law-rules . . . .” Board of Regents of State
Colleges v. Roth, 408 U.S. 564, 577 (1972). “Although property rights are principally
created by state law, whether a substantive interest created by the state rises to the level
of a constitutionally protected property interest is a question of federal constitutional
law. . . . The due process clause only protects those interests to which one has a
legitimate claim of entitlement.” Waeschle v. Dragovic, 576 F.3d 539, 544-45 (6th Cir.
2009).

The issue on appeal is whether the Albrechts had a constitutionally protected
property interest in their son’s brain after it was removed during the autopsy. As noted
above, Ohio state law governs the definition of “property” in Ohio. Board of Regents
of State Colleges v. Roth, 408 U.S. at 577. Because this was an issue of first impression
in Ohio, the district court certified the following question to the Ohio Supreme Court:

a protected right under Ohio law in the decedent’s tissues, organs, blood
or other body parts that have been removed and retained by the coroner
for forensic examination Whether the next of kin of a decedent, upon
whom an autopsy has been performed, have and testing.

The Ohio Supreme Court accepted the certified question for review and held that
“the next of kin of a decedent upon whom an autopsy has been performed do not have
a protected right under Ohio law in the decedent’s tissues, organs, blood, or other body
parts that have been removed and retained by the coroner for forensic examination and
testing.” Albrecht v. Treon, 889 N.E. 120, 122;118 Ohio St.3d 348, 350 (2008)
(Albrecht II).2 As a result of that answer, the district court held that “[b]ecause Ohio law
does not give the next of kin of a decedent upon whom an autopsy has been performed
a protected right in the decedent’s tissues, organs, blood or other body parts that have
been removed and retained by the coroner for forensic examination and testing,

2
In the relevant case law, the district court case from which this appeal is taken is referred to as
“Albrecht I” and the Ohio Supreme Court’s opinion answering the district court’s certified question is
referred to as “Albrecht II.”
No. 09-3703 Albrecht, et al. v. Treon, et al. Page 7

Plaintiff’s action brought pursuant to 42 U.S.C. § 1983 fails as a matter of law.” We
agree.

This Court addressed the issue in this case on two previous occasions. Prior to
the district court’s ruling on the motion for judgment on the pleadings, the Albrechts
sought a writ of mandamus directing the district court to withdraw the certification or
a writ of prohibition directing the district court not to consider any answer that the
Supreme Court might offer to the certified question. We denied the mandamus petition,
stating that “the plaintiffs invoke a holding in a decision issued in another case on a
distinguishable set of facts. Since Brotherton was decided, changes in Ohio law suggest
another reading may be possible.” In re Albrecht, No. 07-3419, slip op. at 3 (6th Cir.
May 2, 2007).

In August 2009, we discussed the case at bar at length in Waeschle v. Dragovic,
576 F.3d 539 (6th Cir. 2009). The facts in Waeschle are nearly identical to the facts in
this case, but Waeschle originated in Michigan, not Ohio. Noting the similarities
between Michigan and Ohio property law, we stated, “the [Ohio Supreme] Court’s
decision in Albrecht II, which explicitly denied that the next of kin have a right to body
parts collected for forensic examination, suggests that such a right would probably not
be recognized under existing Michigan law.” Waeschle, 576 F.3d at 548-9. We held
that for the purposes of qualified immunity, “Waeschle’s alleged constitutionally
protected property right to her mother’s brain is [not clearly established,]” but cautioned
that it did not “determine the existence or the scope of Waeschle’s right to her mother’s
brain in the present case.” Id. at 550.

The Albrechts argue that there is a conflict between Ohio state law and the law
of this circuit regarding a person’s rights to a deceased relative’s body parts. The
Albrechts further argue that the Ohio Supreme Court decision in Albrecht II, holding that
next of kin do not have a property interest in autopsy specimens gathered for the purpose
of a legitimate investigation, cannot “overrule” the Sixth Circuit decision in Brotherton,
holding that next of kin do have a protected property interest in the eyes of deceased
relatives, removed for the purpose of donation.
No. 09-3703 Albrecht, et al. v. Treon, et al. Page 8

The Albrecht’s arguments are flawed. First, the Albrechts confuse the definition
of “protected” with the definition of “property.” As previously explained above, the
states define “property,” “property rights,” and “property interest.” Board of Regents
of State Colleges v. Roth, 408 U.S. at 577. Whether that “property interest” is
constitutionally “protected,” however, is a matter of federal law. Waeschle v. Dragovic,
576 F.3d at 544-45; see Brotherton v. Cleveland, 923 F.2d at 481-82 (“Although the
existence of an interest may be a matter of state law, whether that interest rises to the
level of a ‘legitimate claim of entitlement’ protected by the due process clause is
determined by federal law.”). Thus, there are two questions in determining whether a
plaintiff has a constitutionally protected property interest sufficient to support a § 1983
claim: first, is there a property interest, stemming from “an independent source such as
state-law rules” and second, whether that interest, if any, “rises to the level of a
constitutionally protected property interest.” Board of Regents of State Colleges v. Roth,
408 U.S. at 577 and Waeschle v. Dragovic, 576 F.3d at 544-45. Obviously, if the first
question is answered in the negative, the second question is moot. In its holding in
Albrecht II, the Ohio Supreme Court found that there is no property right to autopsy
specimens removed and retained for purposes of a lawful criminal investigation.3

The Ohio Supreme Court’s decision in Albrecht II did not “overrule” Sixth
Circuit precedent. Albrecht II is a clarification of property law in the state of Ohio.
“Principles of comity require federal courts to defer to a state’s judgment on issues of
state law . . . .” Israfil v. Russell, 276 F.3d 768, 771 (6th Cir. 2001). The district court

3
Although the Albrecht II court stated that “the next of kin of a decedent upon whom an autopsy
has been performed do not have a protected right under Ohio law in the decedent’s tissues, organs, blood,
or other body parts that have been removed and retained by the coroner for forensic examination and
testing,” the Court merely answered the question using the language the district court used in the question
it submitted. Albrecht II, 118 Ohio St.3d at 350 (emphasis added). The full language of the opinion makes
it clear that the Ohio Supreme Court was determining whether the “state law in effect at the time of the
incident gave them a property interest in their deceased son’s body parts.” Id. at 351 (emphasis
added)(citation omitted). Furthermore, this Court has already identified and dismissed the district court’s
misstatement in its denial of the Albrecht’s petition for mandamus, stating,
The plaintiffs also suggest that the district court erred by asking the Ohio
Supreme Court whether there is a “protected” interest, rather than a “property” interest.
Although the two terms generate some confusion, we are convinced that the district
court recognized that there is a state component and a federal component to the
plaintiffs’ cause of action.
In re Albrecht, No. 07-3419, slip op. at 3 (6th Cir. May 2, 2007).
No. 09-3703 Albrecht, et al. v. Treon, et al. Page 9

appropriately deferred to the Ohio Supreme Court’s interpretation of Ohio law in finding
that the Albrechts did not have a property interest in the son’s body parts the coroner
retained for investigative purposes.

Furthermore, the argument that Albrecht II impermissibly “overrules” and
conflicts with Brotherton is flawed. Brotherton is distinguishable from the facts in this
case, and this Court has already ruled to that extent in Waeschle. As noted, the facts in
Waeschle are nearly identical to the facts in this case. On this issue, this Court stated
that

Brotherton and Whaley, however, are distinguishable from the
present case. The key difference is that the brain of Waeschle’s mother
was removed and retained for study by the Medical Examiner in
furtherance of a lawful criminal investigation. By contrast, the removal
of corneas in Brotherton and Whaley served no investigative function
whatsoever. The distinction is important because Waeschle might have
no right under Michigan law to possess, control, or dispose of her
mother’s brain once it is removed for legitimate forensic study.

Waeschle v. Dragovic, 576 F.3d at 546-47. The Waeschle court stated that the plaintiff
“might have no right” to her mother’s brain because the law in Michigan has not been
clearly defined on this issue. The Supreme Court of Ohio, however, has clearly defined
the law on this issue in Ohio. Furthermore, this Court and the Supreme Court of Ohio
agree that Brotherton applies only in the narrow circumstance of unauthorized removal
of body parts for donations, and should not be expanded to include claims by next of kin
for bodily tissues retained by a government official for legitimate criminal
investigations. Id.; Albrecht v. Treon, 118 Ohio St.3d 348, 353 (2008) (Albrecht II).

The Albrechts further argue that their position is supported by the district court’s
decision in Hainey v. Parrott, No. 1:02-CV-733, 2005 WL 2397704 (S.D. Ohio Sept. 28,
2005). Hainey was a class action lawsuit with facts nearly identical to those at bar. The
district court in Hainey found that the

differences in facts likely to [sic] do not take [that] case outside the broad
holding in Brotherton that there is a substantial and protectable
constitutional interest in the dead body of a relative or loved one.
No. 09-3703 Albrecht, et al. v. Treon, et al. Page 10

....
Accordingly, the Court concludes that Plaintiffs do have a
cognizable constitutional property interest in their decedent’s body parts
which the coroner’s office violated when it disposed of their decedents’
brains without prior notice.
....
. . . Brotherton very broadly and very clearly held that family
members have a property interest in their decedent’s body parts which is
protected by the due process clause of the Fourteenth Amendment.

Hainey v. Parrott, No. 1:02-CV-733, 2005 WL 2397704 at *6-8 (S.D. Ohio Sept. 28,
2005). Hainey was decided prior to the Ohio Supreme Court’s ruling on the certified
question in this case. Without the benefit of a ruling from the Ohio Supreme Court on
this issue, the district court in Hainey utilized the precedent available and made a
prediction on Ohio law as defined at that time. See Combs v. International Ins. Co., 354
F.3d 568, 577 (6th Cir. 2004) (Federal courts must make the “best prediction, even in
the absence of direct state precedent, of what the [state supreme court] would do if it
were confronted with [the] question.”). The district court in Hainey did not, and could
not, define Ohio property law. The Ohio Supreme Court addressed the Hainey case in
its opinion on the certified question, stating, “Hainey’s expansion of Brotherton is
unsupported by Ohio law.” Albrecht II, 118 Ohio St.3d 348, 355 (2008). Furthermore,
this Court rejected an expansion of Brotherton in Waeschle. Waeschle v. Dragovic, 576
F.3d at 546-47 (“Brotherton [is] . . . distinguishable from the present case . . . the
removal of corneas in Brotherton and Whaley served no investigative function
whatsoever”).

B. Purported Retroactive Application of Albrecht II

Finally, the Albrechts argue that because, in their view, Brotherton is the
controlling law of this case, their rights to their son’s brain under Brotherton vested prior
to the Ohio Supreme Court’s decision in Albrecht II and to apply Albrecht II to this case
would be to apply it retroactively. This argument is a red herring. As explained above,
this Court does not define Ohio property law. Brotherton did not create a property
No. 09-3703 Albrecht, et al. v. Treon, et al. Page 11

interest in the next of kin’s deceased relative’s corneas, but, instead, interpreted that
right as it already existed pursuant to Ohio’s Uniform Anatomical Gift Act. Brotherton
is distinguishable from this case and does not control the outcome, therefore, Albrecht
II did not impact the law as set forth in Brotherton. Thus, the question of whether
Albrecht II should be applied retrospectively or prospectively is inapposite here, because
Albrecht II did not change Ohio law.4 As the district court stated,

Albrecht [II] did not contradict Brotherton or create new law.
Rather, the Supreme Court of Ohio illuminated the fact that both before
and after Brotherton, Ohio law did not grant the entitlement that
Plaintiffs claim. Thus, the Court need not undertake an analysis of
whether the decision from the Ohio court is entitled to retroactive effect.

Federal law is clear that the states define property rights in their respective
jurisdictions. See Craft v. U.S. Through C.I.R., 140 F.3d 638, 645 (6th Cir. 1998) (Ryan,
J., concurring) (“state property law determines which rights, in the bundle of rights we
call ‘property,’ a person may exercise.”). The Ohio Supreme Court explicitly delineated
the lack of property rights in this case in Albrecht II. That Court held that next of kin
have no right to autopsy specimens removed and retained by the coroner, in furtherance
of a criminal investigation. Although there is no dispute as to the facts as the Albrechts
present them, they had no property interest in their son’s brain, thus, they cannot support
the first element of a due process clause claim. Their claim fails as a matter of law. “[I]f
state actors . . . do not infringe on the life, liberty, or property of the plaintiffs, there can
be no due process violation.” Whaley v. County of Tuscola, 58 F.3d 1111, 1113 (6th
Cir. 1995). Here, the Albrechts had no property rights on which the state could infringe.
As a result, the district court properly granted judgment on the pleadings in favor of the
defendants.

4
Both briefs also mention R.C. § 313.123, which states that “retained tissues, organs, blood, other
bodily fluids, gases, or any other specimens from an autopsy are medical waste and shall be disposed of
in accordance with applicable federal and state laws.” R.C. § 313.123. This statute was enacted after the
incidents which form the basis for this lawsuit, and, thus, is not controlling on the outcome in this case.
Patel v. Gonzales, 432 F.3d 685, 690 (6th Cir. 2005) (“courts ordinarily do not apply statutes retroactively
unless a statute evidences congressional intent to apply retroactively . . . where a statute is silent as to the
scope of its application, the statute should not be applied retroactively”) (citations omitted).
No. 09-3703 Albrecht, et al. v. Treon, et al. Page 12

IV. Conclusion

For the foregoing reasons, the district court’s grant of judgment on the pleadings
in favor of Defendants is AFFIRMED.