Deborah S. BROTHERTON, individually, on behalf of those members of the class herein, and as administratrix of the estate of Stephen S. Brotherton; Melissa Brotherton; Carrie Brotherton, Plaintiffs-Appellants (94-3465; 96-3034), Plaintiffs-Cross-Appellees (96-3085), v. Frank P. CLEVELAND, M.D.; Bethesda, Inc., Defendants-Appellees, Eye Bank Association of America, Inc., Defendant-Cross-Appellant (96-3085).
Nos. 94-3465, 96-3034 and 96-3085.
United States Court of Appeals, Sixth Circuit.
Argued Dec. 10, 1998. Decided April 14, 1999.
173 F.3d 552
Bruce B. McIntosh (argued and briefed), McIntosh, McIntosh & Knabe, Cincinnati, OH, for Defendant-Appellee Bethesda, Inc. in No. 94-3465.
Gordon M. Strauss (briefed), Christian J. Schaefer (argued), Hamilton County Prosecutor‘s Office, Civil Division, Cincinnati, OH, for Defendant-Appellee Frank P. Cleveland, M.D., in No. 96-3034.
Stephen A. Bailey (argued and briefed), Martin, Bailey & MacDonald, Cincinnati, OH, for Defendant-Appellant Eye Bank Association of America, Inc. in No. 96-3085.
Before: BOGGS and MOORE, Circuit Judges; and DOWD,* District Judge.
BOGGS, Circuit Judge.
Deborah S. Brotherton brought two complaints, alleging that the defendants violated Ohio law and the Federal Constitution by removing her dead husband‘s corneas over her objections. The cases were consolidated; the district court certified a class of plaintiffs; and parties now appeal from various orders. In No. 96-3085, Defendant Eye Bank Association of America cross-appeals from the district court‘s decision that, as a private party, the Association did not enjoy Eleventh Amendment immunity from Brotherton‘s suit. In Nos. 94-3465 and 96-3034, Brotherton appeals from the district court‘s orders granting Eleventh Amendment immunity to Defendant Dr. Frank Cleveland, in his official capacity as Hamilton County Coroner; denying Brotherton‘s motion for partial summary judgment as to liability; and granting summary judgment to Defendant Bethesda Hospital on the basis of issue preclusion. Because the Eleventh Amendment does not bar Brotherton‘s suit against Dr. Cleveland in his official capacity, we reverse the grant of summary judgment in his favor; we affirm the other final judgments of the district court.
I. Background
This case arose from allegations of the theft of body parts from the dead. This appeal concerns consolidated cases that have been ongoing since 1989. Given this tangled posture, we begin by relating some facts and procedural history.
In 1983, Ohio passed a law to permit county coroners to harvest corneas for medical use.
(A) As used in this section:
...
(2) “Eye bank” means a nonprofit corporation that is organized under the laws of this state, the purposes of which include obtaining, storing, and distributing corneas to be used for corneal transplants or other medical or medical research purposes, and that is exempt from federal taxation....
(3) “Eye bank official” means a person authorized by the trustees of an eye bank to make requests for corneas to be used for corneal transplants or other medical or medical research purposes.
(4) “Eye technician” means a person authorized by the medical director of an eye bank to remove the corneas of a decedent.
...
(B) A county coroner who performs an autopsy pursuant to section 313.13 of the Revised Code may remove one or both corneas of the decedent, or a coroner may authorize a deputy coroner, physician or surgeon licensed pursuant to section 4731.14 of the Revised Code, embalmer authorized under section 2108.071 of the Revised Code to enucleate eyes, or eye technician to remove one or both corneas of a decedent whose body is the subject of an autopsy performed pursuant to section 313.13 of the Revised Code, if all of the following apply:
...
(2) An eye bank official has requested the removal of corneas and certified to the coroner in writing that the corneas will be used only for corneal transplants or other medical or medical research purposes;
...
(4) The coroner, at the time he removes or authorizes the removal of the corneas, has no knowledge of an objection to the removal by [the decedent, his spouse, his next of kin, his legal guardian, or someone authorized to dispose of his body].
...
(C) Any person who acts in good faith under this section and without knowledge of an objection, as described in division (B)(4) of this section, to the removal of corneas is not liable in any civil or criminal action based on the removal.
Dr. Cleveland responded by directing his subordinates to “cooperate with the Cincinnati Eye Bank to obtain as many corneas as possible.” The removal statute, at § 2108.60(4), permits removals only when the coroner “has no knowledge of an objection to the removal by [the decedent or certain others].” Dr. Cleveland established a policy of “intentional ignorance,” encouraging subordinates not to seek information on objections to corneal removal. This court has described that approach as a policy “not to review medical records or paperwork pertaining to a corpse prior to the removal of corneas.” Brotherton v. Cleveland, 923 F.2d 477, 482 (6th Cir.1991) (“Brotherton I “). When the coroner‘s office learned of a death, it would contact CEB, which would send a technician to remove the corneas. Eventually, Dr. Cleveland learned that CEB personnel started inquiring about the existence of objections to removal. In response, he approved a memorandum to his subordinates which read, in part, “If eye bank personnel request ‘next of kin’ information on any of our cases, IT IS NOT TO BE GIVEN TO THEM. If they persist in that inquiry, obtain their names and make Jack or Carol aware of the incident.” While the joint appendix does not reveal Jack and Carol‘s identities or job titles, we presume that they were not necessarily safeguarding the best interests of inquisitive eye bank personnel or next of kin.
On February 15, 1988, EMS personnel took Steven Brotherton (“Steven“) to the Emergency Room of Bethesda Hospital (North) in Hamilton County. After the hospital staff pronounced Steven dead, they asked his wife, Deborah Brotherton (“Brotherton“), if she would permit an anatomical gift. She refused, citing Steven‘s beliefs, and the hospital documented this refusal in its record on the “Report of Death.” To determine whether Steven committed suicide, the hospital released his body to the county coroner, Dr. Cleveland, whose staff performed an autopsy on February 16. The coroner‘s office contacted CEB, informed CEB that it could harvest Steven‘s corneas, and permitted CEB to send a technician to remove the corneas. Brotherton learned about this only when she reviewed the autopsy report, which remarked that Steven‘s “corneae are absent.”
On February 9, 1989, Brotherton filed a complaint in the United States District Court for the Southern District of Ohio. Acting individually and as the administratrix of Steven‘s estate, and on behalf of her minor children, Brotherton sued, among others, Dr. Cleveland (in his personal and official capacity), EBAA, CEB, Bethesda North, and Bethesda, Inc., the parent corporation of Bethesda North.1 Attacking the policy and practices of the coroner, hospital, and eye banks, and challenging the constitutionality of the cornea removal statute, Brotherton sought injunctions and damages under
On August 11, 1989, the district court dismissed the case. The judge held that Brotherton had no property interest in Steven‘s body, rejected her equal protection claim, and dismissed the state claims without prejudice. See Brotherton I, 923 F.2d at 479. Brotherton filed a timely appeal. In 1991, this court decided Brotherton I, in which we reversed the district court, reaching only the due process issue. We explained that Brotherton had a property interest in Steven‘s body, that Ohio failed to provide necessary predeprivation procedures, and that “the policy and custom of the Hamilton County coroner‘s office is an established state procedure necessitating predeprivation procedures.” Id. at 481-82.
On February 14, 1990, before this court decided Brotherton I, Brotherton filed a second complaint in the Southern District of Ohio. That complaint resembled the first, although it included an additional plaintiff whose decedent perished at Bethesda North and suffered the removal of corneas without the permission of the next of kin. As in the first complaint, Brotherton sought injunctions and damages under
After this court remanded the second complaint in light of Brotherton II, Judge Spiegel consolidated the two cases in August 1992, designating the first complaint as the lead case. In November 1992, he certified the plaintiff class.3 The district court dismissed Bethesda North and granted summary judgment for Bethesda, Inc. (“Bethesda“). In August 1993, this court sua sponte dismissed Brotherton‘s appeal from the summary judgment for Bethesda. The district court vacated the previous grant of summary judgment, and turned its attention to class members requesting exclusion. In early 1994, Judge Spiegel again granted summary judgment for Bethesda, designating the order as a final judgment pursuant to
On November 27, 1995, the district court granted Dr. Cleveland‘s motion for summary judgment and denied CEB and EBAA‘s motions for summary judgment. In its order, the court held that the
Anticipating a settlement, this court remanded the three appeals (Brotherton‘s appeals regarding Bethesda and Dr. Cleveland, and EBAA‘s cross-appeal regarding the denial of its motion for summary judgment) pursuant to our decision in First National Bank of Salem, Ohio v. Hirsch, 535 F.2d 343 (6th Cir.1976). In April 1997, Judge Spiegel recommended returning the matters to the Sixth Circuit and, in January 1998, he repeated this recommendation. On February 3, 1998, this court granted a motion to reinstate the appeal. The case retains Dr. Cleveland‘s name, although he has retired and been replaced by Dr. Carl Parrott. See David Holthaus, New Coroner‘s Calling: Finding Truth in Death, CINCINNATI POST, Feb. 23, 1995, at 1A. “[A]ny misnomer not affecting the substantial rights of the parties [to actions against a public officer in his official capacity] shall be disregarded.”
II. EBAA‘s Invocation of the Eleventh Amendment
We begin with EBAA‘s cross-appeal and the question of whether the
Initially, we consider whether EBAA properly took its cross-appeal. After all, EBAA lacks grounds to appeal a final judgment under
Although EBAA does not mention the collateral order doctrine, that method of appeal may represent our only means of exercising jurisdiction over this appeal. The Supreme Court has ruled that, “States and state entities that claim to be ‘arms of the State’ may take advantage of the collateral order doctrine to appeal a district court order denying a claim of Eleventh Amendment immunity.” Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 147, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993); see also Williams v. Kentucky, 24 F.3d 1526, 1543 (6th Cir.), cert. denied, 513 U.S. 947, 115 S.Ct. 358, 130 L.Ed.2d 312 (1994). The Court‘s holding does not explicitly reach private parties, who may well not be “state entities“: Puerto Rico Aqueduct was a government instrumentality, not a private firm.
Of course, we have already found that EBAA is a state actor, for purposes of the case. Further, this court has allowed private parties to obtain interlocutory review of denials of qualified immunity, see Cullinan v. Abramson, 128 F.3d 301, 303 (6th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1560, 140 L.Ed.2d 792 (1998); McKnight v. Rees, 88 F.3d 417, 418-19 (6th Cir.1996), aff‘d, Richardson v. McKnight, 521 U.S. 399, 117 S.Ct. 2100, 138 L.Ed.2d 540 (1997), and similar reasons justify interlocutory review of a denial of
The proper approach asks not whether EBAA should enjoy qualified immunity, and therefore
The Supreme Court recently revisited its method for determining whether the
A charitable organization may undertake rescue or other good work which, in its absence, we would expect the State to shoulder. But none would conclude, for example, that in times of flood or famine the American Red Cross, to the extent it works for the public, acquires the States’ Eleventh Amendment immunity. [Footnote 21] The proper focus is not on the use of profits or surplus, but rather is on losses and debts. If the expenditures of the enterprise exceed receipts, is the State in fact obligated to bear and pay the resulting indebtedness of the enterprise? When the answer is “No“—both legally and practically—then the Eleventh Amendment‘s core concern is not implicated.
Id. at 51, 115 S.Ct. 394. Footnote 21 reads, in part, “It would indeed heighten a ‘myster[y] of legal evolution’ were we to spread an Eleventh Amendment cover over an agency that consumes no state revenues but contributes to the State‘s wealth.” Ibid.(citations omitted).
While EBAA and Brotherton do not discuss EBAA‘s finances, EBAA makes much of the fact that it is a nonprofit, private corporation. Its “Background Information” sheet shows that it enjoys non-profit status, was established in 1961 by the Committee on Eye Banks of the American Academy of Ophthalmology, and that it includes 87 eye banks in 40 states. Apart from its regulation of all corporations that operate within its borders, Ohio does not appear to exert control over EBAA, and its laws do little more than give EBAA (or, rather, its member eye banks) permission to harvest corneas. See
Qualified Immunity for EBAA
Although the district court ruled only on the applicability of the
Justice Powell is concerned that private individuals who innocently make use of seemingly valid state laws would be responsible, if the law is subsequently held to be unconstitutional, for the consequences of their actions. In our view, however, this problem should be dealt with not by changing the character of the cause of action but by establishing an affirmative defense. A similar concern is at least partially responsible for the availability of a good-faith defense, or qualified immunity, to state officials. We need not reach the question of the availability of such a defense to private individuals at this juncture. What we said in Adickes, 398 U.S. 144, 174, n. 44, 90 S.Ct. 1598, ... when confronted with this question is just as applicable today:
“We intimate no views concerning the relief that might be appropriate if a violation is shown. The parties have not briefed these remedial issues, and if a violation is proved they are best explored in the first instance below in light of the new record that will be developed on remand. Nor do we mean to determine at this juncture whether there are any defenses available to defendants in
§ 1983 actions like the one at hand. Cf. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288” (citations omitted).
Id. at 942 n. 23, 102 S.Ct. 2744 (emphasis added). If EBAA chooses to assert qualified immunity in further proceedings before the district court, the court may develop a record and resolve the issue without any confounding effect of
III. Dr. Cleveland‘s Invocation of the Eleventh Amendment
We turn to Brotherton‘s claims against Dr. Cleveland in his official capacity. In Brotherton II, this court agreed with the district court that Brotherton could not maintain an action against Dr. Cleveland in his personal capacity. See Brotherton II, 1992 WL 151286, at ** 3-4. The decision in Brotherton II allowed the plaintiffs to continue against Dr. Cleveland in his official capacity. See id. at ** 4-5. It observed that the suit against Dr. Cleveland, in his official capacity, represented a suit against the “entity of which [he] is an agent.” Id. at * 4 (quoting Monell v. Department of Soc. Servs. of the City of New York, 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). This posture reduces the defenses available to Dr. Cleveland (and the entity he represents): “The only immunities that can be claimed in an official-capacity action are forms of sovereign immunity that the entity, qua entity, may possess, such as the Eleventh Amendment.” Kentucky v. Graham, 473 U.S. 159, 167, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). Trouble arose below because Brotherton and Dr. Cleveland could not agree as to which entity the coroner represented when he fashioned the contested policy.
After the remand from Brotherton II, Dr. Cleveland convinced the district court that it lacked jurisdiction. He persuaded the court that, although Hamilton County voters elected him, he acted as an agent of the State of Ohio when he implemented the cornea removal policy of “intentional ignorance” concerning the wishes of decedents and their kin. Because the
This court reviews de novo a district court‘s ruling that the
This finding may not end our inquiry. The preceding paragraph establishes that, in his daily operations, the Hamilton County Coroner acts as an agent of Hamilton County, and not of the State of Ohio. Dr. Cleveland asserts, however, that Ohio law—not personal whim or county mandate—compelled him to craft the contested policy. Essentially, he argues that, for the limited purposes of this suit, he acted as an arm of the State, and he cites for support our 1993 decision in Pusey v. City of Youngstown. For this appeal, we will assume that Pusey and related cases serve as complements to Hess and the multi-factor-test cases, and we view the two lines of decisions as standing for separate propositions: Hess resolves the status of
The district court in Brotherton relied on the opinion in Pusey. Pusey brought a
We look beyond Brotherton I to the language of the removal statute, which dooms Dr. Cleveland‘s position.
(B) A county coroner who performs an autopsy pursuant to section 313.13 of the Revised Code may remove one or both corneas of the decedent, or a coroner may authorize a deputy coroner, physician or surgeon ..., embalmer ..., or eye technician to remove one or both corneas of a decedent whose body is the subject of an autopsy ..., if all of the following apply....
The parties disagree about whether to read as “shall” the removal statute‘s use of “may.”6 That dispute sidesteps the dispositive issue: even if—and it seems far from certain—Ohio law forced Dr. Cleveland to harvest corneas, it did not direct the fashion in which he did so.7 Ohio law permitted Dr. Cleveland to harvest corneas, but it did not prescribe a specific policy, especially not one which sought to prevent eye bank technicians from inquiring about objections to corneal removal.8
We rejected this argument. The state statute merely outlined the outer limits of the use of force to apprehend fleeing felons. The Police Department deliberately chose to adopt a more restrictive deadly force policy which refused to authorize the use of deadly force against certain non-violent suspects. See ibid. We held that the Police Department had formulated its own policy, and thus risked
The Memphis Police Department‘s position resembles that of the Hamilton County Coroner‘s Office under Dr. Cleveland. In both cases, a State authorized a local entity to act within certain bounds, and the local entity formulated a policy in response. Dr. Cleveland‘s policy represents a stronger case for liability than in Garner: while the Memphis Police Department crafted a policy less expansive than that authorized by the Tennessee statute, Dr. Cleveland‘s policy of intentional ignorance does not appear grounded in the Ohio statute. Regardless of the scope of the policies, in neither case did the local actor mechanically adopt and enforce, to the letter, a state policy. Instead, the local actor made conscious policy decisions, and thus did not act merely as an arm of the State.
A recent opinion by Judge Easterbrook of the Seventh Circuit corroborates this distinction. It held that, where Illinois law afforded discretion to a county official charged with enforcing its commands, the defendant acted as a county, not state, official, and thus could not invoke the
The Sheriff has not alerted us to authority that requires him to use any computer system—let alone this one—to track warrants. A county agency, under the president of the county board, specified the design of SPWA. The system, then, is designed and supervised from top to bottom by the Sheriff and the county government. State law requires the Sheriff to arrest the right people but says nothing about how he should do it. Design and auditing decisions have been left entirely to him. He could junk SPWA tomorrow, or alter its every detail, without thwarting any state policy or law. Each sheriff in Illinois is free to take a unique approach. A suit against the Sheriff would not prevent the state from later taking over the task of tracking warrants through, say, a single computer in the Clerk‘s Office. SPWA allows the Sheriff to find warrants faster than if he had to check with the Clerk‘s Office in the first instance, but is not the product of a state directive. It follows that in designing and implementing SPWA the Sheriff is not acting as the State of Illinois.
Id. at 529; see also McCurdy v. Sheriff of Madison County, 128 F.3d 1144, 1146 (7th Cir.1997).
In contrast, this case implicates Dr. Cleveland in his policymaking capacity. Rather than rotely enforce prescribed Ohio law, he voluntarily implemented a policy of corneal harvesting, and he chose the means of enforcing his policy. The essential question asks whether Dr. Cleveland could have chosen not to use his authority under the state statute and how he would use such authority; if he could have opted to act differently, or not to act, he did not act as an arm of Ohio when he formulated and implemented the contested policy. This distinction reconciles Garner and Pusey, and accords with Ruehman and other views. See Bethesda Lutheran Homes and Servs., 154 F.3d at 718 (“[T]he state of mind of local officials who enforce or comply with state or federal regulations is immaterial to whether the local government is violating the Constitution if the local officials could not act otherwise without violating state or federal law.“); Sonnenfeld v. City and County of Denver, 100 F.3d 744, 749-50 (10th Cir.1996) (applying multi-factor test influenced by Hess, commenting on Denver‘s “great deal of autonomy in local affairs” in Denver‘s choice to build an airport in accord with a state policy encouraging, but not mandating, airport construction), cert. denied, 520 U.S. 1228, 117 S.Ct. 1819, 137 L.Ed.2d 1027 (1997); Davis v. Ector County, Tex., 40 F.3d 777, 784 n. 34 (5th Cir.1994) (distinguishing a district attorney‘s attempt to enforce an unconstitutional state statute from instances when a “question of the district attorney as policy maker was presented“); Caminero v. Rand, 882 F.Supp. 1319, 1325 (S.D.N.Y.1995); cf. Pembaur, 475 U.S. at 481, 106 S.Ct. 1292 (“Municipal liability [under
IV. The Dismissal of Bethesda on Grounds of Preclusion
In February 1994, the district court granted summary judgment for Bethesda. The district court found that previous state and federal court decisions precluded Brotherton‘s claims against Bethesda. While it did not use the terms “preclusion,” “res judicata,” or “collateral estoppel,” the court obviously invoked the doctrine of issue preclusion. One month later, it entered final judgment for Bethesda pursuant to
Brotherton‘s complaints sought relief under
Brotherton‘s attempt to resurrect its constitutional and negligence claims runs afoul of Ohio‘s doctrine of issue preclusion (also known as collateral estoppel). These facts satisfy Ohio‘s test for issue preclusion: (1) Bethesda and Brotherton were parties to Brotherton II and the state case; (2) both cases ended in final judgments on the merits (which include summary judgments) after a full and fair opportunity to litigate the issues; (3) both issues were necessary to the final judgments; and (4) Brotherton does not assert that the issues in this appeal differ from the issues decided in Brotherton IIand the state case. See Hapgood v. City of Warren, 127 F.3d 490, 493-94 (6th Cir.1997) (requiring federal courts to give preclusive effect to Ohio state court judgments, discussing Ohio law of preclusion, and observing that Ohio treats summary judgments as valid, final judgments), cert. denied, --- U.S. ----, 118 S.Ct. 1361, 140 L.Ed.2d 511 (1998); Balboa Ins. Co. v. S.S.D. Distribution Sys., Inc., 109 Ohio App.3d 523, 672 N.E.2d 718, 720-21 (republishing preconditions for invoking doctrine of collateral estoppel), appeal denied, 76 Ohio St.3d 1477, 669 N.E.2d 859 (1996) (table); Cashelmara Villas Ltd. Partnership v. DiBenedetto, 87 Ohio App.3d 809, 623 N.E.2d 213, 215-16 (1993) (“A prior judgment estops a party ... from subsequently relitigating the identical issue raised in the prior action.“).10
Brotherton virtually concedes defeat on this issue. In her brief, Brotherton contends that the district court erred by denying a motion to submit evidentiary material to counter Bethesda‘s motion for summary judgment. Brotherton does not explain the nature of the material—not that it matters, because preclusion bars Brotherton‘s legal claims and the issues therein. The district court did not err in finding that preclusion doctrines barred Brotherton‘s claims against Bethesda.
V. The Denial of Summary Judgment for Brotherton on Liability
On September 14, 1994, Judge Speigel denied Brotherton‘s motion for partial summary judgment as to the liability of the defendants. Brotherton did not file a notice of appeal until fifteen months later, on December 26, 1995, after the district court granted summary judgment for Dr. Cleveland and dismissed him from the suit. In that notice of appeal, Brotherton purported to appeal from that judgment “and from any other final orders rendered by this court.” We lack jurisdiction over an appeal from the September 14, 1994 order, as that order is not “final.” See Swint v. Chambers County Comm‘n, 514 U.S. 35, 41-43, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995) (unanimous) (ruling that the denial of a summary judgment motion presented neither a final order nor an appealable collateral order). Even if Brotherton may petition for premature appellate review by piggybacking the issue of liability on her appeal from the order concerning
VI. Conclusion
Because the