MEMORANDUM AND ORDER
Through this action, Plaintiffs Joan Shelley, Michelle Loftis and Sandra Hoyo-patubbi (collectively “Plaintiffs”) seek to recover damages from municipal defendants, the County of San Joaquin and San Joaquin County Sheriff Steve Moore (collectively “Defendants”), for violation of the U.S. Constitution. This case concerns the exhumation of the body of Plaintiffs’ deceased relative, Jo Ann Hobson, by the San Joaquin County Sheriffs Department. Plaintiffs allege the Sheriffs Department exhumed Ms. Hobson’s body in an unconstitutional manner, and sue, asserting violations of the Fourteenth Amendment under 42 U.S.C. § 1983. First Am. Compl. (“FAC”), Aug. 6, 2013, ECF No. 14.
Presently before the Court is Defendants’ Motion to Dismiss (“Motion”) Plaintiffs’ First Amended Complaint (“FAC”), for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6).
BACKGROUND
Jo Ann Hobson went missing at age fifteen in 1985, and it was suspected she was a murder victim of Loren Herzog and Wesley Shermantine, commonly referred to as the “Speed Freak Killers.” In 2012, the San Joaquin Sheriffs Department received information from Shermantine that Hobson’s body, along with the bodies of other victims, was located at the bottom of an abandoned well. The Sheriffs Department proceeded to the well site to exhume the bodies.
Plaintiffs allege Defendants “ordered the well to be rapidly and completely dug up with a back hoe.” FAC ¶ 11, ECF No. 14. “Defendants ordered the digging with the back hoe to continue after bones were discovered.” Id. “Thereafter, in the presence of Joan Shelley, and with invited television and news organizations observing, Defendants ... caused the skeletal remains of Jo Ann Hobson ... to be chewed up, pulverized, destroyed, crushed and
Moreover, Plaintiffs allege Defendants “held the skeletal remains of Jo Ann Hob-son and would not release them to Plaintiffs for burial or disposition” until several months later, when “Defendants turned over the chopped up and purported remains of Jo Ann Hobson, by sending them to the mortuary for cremation.” Id. ¶ 12.
“Out of concern that the remains ... might not be those of her daughter, Plaintiff Joan Shelley” had the “remains photographed and evaluated by Erick Bartelink, Ph.D., professor of forensic anthropology at Chico State University.” Id. Dr. Bar-telink’s review “revealed that at least three, and perhaps more individuals were contained in the body bag of bones Defendants had released for cremation. At least one of these bones [was] identified by DNA evidence as belonging to Kimberly Billy and not to Jo Ann Hobson.” Id. “Further, the forensic evaluation ... documented that not all of Jo Ann Hobson’s remains [were] turned over,” which leads Plaintiffs to “believe that within the remains that Defendants] passed off as belonging to Kimberly Billy, are the missing remains of [Plaintiffs’] daughter and sister Jo Ann Hobson.” Id.
Plaintiffs allege that, as a result of Defendants actions, they suffered “extreme shock, horror, distress and permanent psychological] injury and harm.” Id. ¶ 11.
In a prior order, this Court granted Defendants’ motion to dismiss Plaintiffs’ damages claims against Sheriff Moore in his individual capacity with prejudice. This Court held Sheriff Moore was entitled to qualified immunity because Plaintiffs’ asserted constitutionally protected property interest in the remains of their relative was not “ ‘clearly established’ such that a ‘reasonable officer’ would have believed Plaintiffs were entitled to constitutional due process.” Mem. & Order,
Plaintiffs filed an amended complaint within the prescribed time in which they added allegations that Sheriff Moore was acting in his capacity as a policymaker. See FAC ¶ 14, ECF No. 14. Plaintiffs did not allege compliance with the California Tort Claims Act and therefore appear to have abandoned the state law claims for negligence and emotional distress.
STANDARD
On a motion to dismiss for failure to state a claim under Rule 12(b)(6), all allegations of material fact must be accepted as true and construed in the light most favorable to the non-moving party. Cahill v. Liberty Mut. Ins. Co.,
Furthermore, “Rule 8(a)(2) ... requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief.” Twombly,
A court granting a motion to dismiss a complaint must then decide whether to grant leave to amend. Leave to amend should be “freely given” where there is no “undue delay, bad faith or dilatory motive on the part of the movant, ... undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of the amendment ....” Foman v. Davis,
ANALYSIS
Plaintiffs assert Defendants violated the Fourteenth Amendment of the U.S. Constitution and seek damages under 42 U.S.C. § 1983. Defendants move to dismiss arguing Plaintiffs fail to state a claim under Rule 12(b)(6). Plaintiffs counter, arguing Defendants violated the Fourteenth Amendment in two ways: (a) Defendants deprived Plaintiffs of their property interests in the remains of their relative without due process — a procedural due process claim; and (b) Defendants’ conduct deprived Plaintiffs of their “substantive due process right to family integrity” because Defendants’ conduct was “likely to cause the family profound grief’ and thereby shock the conscience — a substantive due process claim.
A. Procedural Due Process Claim
Plaintiffs’ Fourteenth Amendment “procedural due process claim has two elements: deprivation of a constitutionally protected liberty or property interest and denial of adequate procedural protection.” Krainski v. Nev. ex rel. Bd. of Regents of Nev. Sys. of Higher Educ.,
“Property interests ... are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law ....” Bd. of Regents of State Colls. v. Roth,
In this case, Plaintiffs assert a legitimate claim of entitlement arises from California Health & Safety Code § 7102, which grants Plaintiffs “the right to control the disposition of the remains” of their deceased relative, Jo Ann Hobson. At oral argument, Plaintiffs’ counsel confirmed § 7102 is Plaintiffs’ sole asserted statutory basis of their procedural due process claim. Defendants counter “there is no property interest in a dead body in California,” citing California cases such as Enos v. Snyder,
In the anatomical gift context, the Ninth Circuit held that California parents have a due process property interest in the corneal tissue of their deceased children in Newman v. Sathyavaglswaran,
In light of the narrow holding in Newman, this Court finds the instant case distinguishable from Newman in that Plaintiffs do not assert their claim of entitlement finds support in California’s version of the Uniform Anatomical Gift Act, but arises from a different California statute, California Health & Safety Code § 7102. Thus, the Court must turn to California property law principles and persuasive authority to resolve Defendants’ Motion.
California courts historically have been reluctant to hold that next of kin have a property interest in their relative’s remains. For instance, at the turn of the century, the California Supreme Court surveyed English and American authorities and concluded: “It is quite well established ... that, in the absence of statutory provisions, there is no property in a dead body .... ” Enos v. Snyder,
Although the parties cite to no binding authority on point, and the Court is aware of none, persuasive authority teaches that in the absence of a specific statutory grant of rights that give rise to a legitimate claim of entitlement — such as in the anatomical gift context — there is no property interest in the remains of loved ones. Enos,
The same conclusion was reached by the supreme courts of:
• Colorado, Culpepper v. Pearl St. Bldg., Inc.,877 P.2d 877 , 882 (Colo.1994) (“Formally rejecting] the fictional theory that a property right exists in a dead body that would support an action for conversion. Rather, an injury like that ... is more properly addressed through a tort action related to the infliction of emotional distress or to mental anguish caused by willful, wanton, or insulting conduct, or through an action for breach of contract and accompanying mental suffering.”);
• Ohio, Albrecht v. Treon,617 F.3d 890 , 898 (6th Cir.2010) (“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. [Plaintiffs] had no property interest in their son’s brain, thus, they cannot support the first element of a due process clause claim.... Here, the Albrechts had no property rights on which the state could infringe.” (citing Albrecht v. Treon,118 Ohio St.3d 348 ,889 N.E.2d 120 (Ohio 2008), answering certified question from No. 1:06-cv-274,2007 WL 777864 (S.D.Ohio Mar. 12, 2007)));
• Michigan, Waeschle v. Dragovic,687 F.3d 292 , 295 (6th Cir.2012) (per curiam) (Michigan) (“Under Michigan law, a next of kin does not have a property interest in a decedent’s brain that was removed and retained pursuant to a lawful investigation.” (citing In re Certified Question from U.S. District Court for E.D. Mich.,488 Mich. 1 ,793 N.W.2d 560 (2010) (per curiam)));
• Nevada, Boorman v. Nev. Mem’l Cremation Soc’y, — Nev.-,236 P.3d 4 , 10 (Nev.2010) (“Consistent with the majority of jurisdictions that have addressed this issue, we cannot conclude that there is a property right in a deceased human body or its remains.”); and
• New York, Colavito v. N.Y. Organ Donor Network, Inc., 8 N.Y.3d 43, 52-53,827 N.Y.S.2d 96 ,860 N.E.2d 713 (N.Y.2006), answering certified question from438 F.3d 214 (2d Cir.2006) (“[Clases in New York have continued to recognize causes of action for improper autopsy or mutilation, but none have strayed meaningfully from the doctrine that there is no commonlaw property right in a dead body.... For purposes of this case it is enough to say, in answer to the first part of the first certified*929 question, that plaintiff, as a specified donee of an incompatible kidney, has no common-law right to the organ.” (citations and footnote omitted)), among others that have considered the question.5
This Court finds the Texas Supreme Court’s recent decision particularly persuasive, since Texas — like California — recognizes “that next of kin have ... quasi-property rights in the body of a deceased person .... to facilitate recovery for the negligent mishandling of a dead body,” Evanston Ins. Co.,
The Texas Supreme Court reached its conclusion in Evanston — that a decedent’s remains are not property- — -by reasoning that, although the “common law gives [relatives] the right to direct burial” and “to sue for mental anguish damages,” and the Uniform Anatomical Gift Act “also gives next of kin the right to gift tissues,” these rights are carefully circumscribed:
Despite these rights Alvarez has in her deceased mother’s tissues, there are many rights Alvarez does not have. Some of the key rights that make up the bundle of property rights include the rights to possess, use, transfer, and exclude others. Next of kin have no right to possess a body other than for burial or final disposition. Next of kin have no right to use tissues unless they have been designated by the individual as a transplant recipient. Next of kin have no right to transfer tissues other than as set forth in the Anatomical Gift Act. And next of kin have no right to exclude, other than to seek damages in certain circumstances for acts done beyond their consent. In light of these limited rights, we cannot say that tissues have attained the status of property of the next of kin.
Id. at 385 (emphasis added) (footnote omitted). The court in Evanston also surveyed the case law across other jurisdictions and noted that its holding was not only “consistent with the majority view” that human remains “are, at most, quasi property of the next of kin,” but also that the court was “unaware of any court holding” that human remains “are the property of next of kin in the ordinary sense.” Id. at 385 n. 15 (emphasis added) (citing, among other cases, Moore,
Applying the Texas Supreme Court’s reasoning from Evanston to this ease, California similarly grants next of kin certain rights in the remains of their relative, but reserves a great deal of the rights incident to “property.” See, e.g., Michael A. Heller, The Tragedy of the Anticommons: Property in the Transition from Marx to Markets, 111 HaRV. L.Rev. 621, 663 n. 187 (1998) (listing among the common rights “incident” to property ownership “(1) the right to exclusive possession; (2) the right to personal use and enjoyment; (3) the right to manage use by others; (4) the right to the income from use by others; (5) the right to the capital value, including alienation, consumption, waste, or destruction; (6) the right to security (that is, immunity from expropriation); [and] (7) the power of
Moreover, this conclusion is consistent with the decision of a federal district court within the Southern District of New York (affirmed by the Second Circuit in an unpublished opinion) that dismissed a similar procedural due process § 1983 claim concerning the remains of the victims of the September 11, World Trade Center disaster. WTC Families for a Proper Burial v. City of N.Y. (WTC Families),
B. Substantive Due Process Claim
Plaintiffs oppose Defendants’ Motion to Dismiss their Fourteenth Amendment claim on another ground, in essence asserting Defendants violated Plaintiffs’ substantive due process “right to privacy” by “depriving Plaintiffs of their family integrity ...Opp’n 3, ECF No. 22. The Court construes Plaintiffs’ Complaint and the argument contained in its opposition brief to assert a substantive due process claim.
In Marsh v. County of San Diego, the Ninth Circuit recognized “a parent’s right to control a deceased child’s remains ... [which] flows from the well-established substantive due process right to family integrity.”
Here, Plaintiffs are the decedent’s family members, Hobson’s mother and sisters. Plaintiffs allege Defendants engaged in “large scale digging with back hoes or other major earth-moving equipment” and caused Hobson’s “skeletal remains” “to be chewed up, pulverized, destroyed, crushed and commingled with other unknown murder victims” in the presence of the decedent’s mother, Joan Shelley, and “with invited television and news organizations observing.” FAC ¶¶9-11, ECF No. 14. Plaintiffs further allege that, as a result, they suffered “extreme shock, horror, distress and permanent psychological] injury and harm.” Id. ¶ 9. Accepting these allegations as true, as we must, and taking all reasonable inferences in favor of Plaintiffs, the Court finds that Defendants’ conduct was “likely to cause the family profound grief and therefore ‘shocks the conscience.’ ” Marsh,
Moreover, Defendants’ argument that Plaintiffs’ substantive due process claim fails because “[n]owhere in their First Amended Complaint ... do the plaintiffs make any claim that they have been deprived of a ‘right to privacy,’ ” Reply 2:6-9, ECF No. 23, is unavailing in light of the allegations contained therein. For example, in the First Amended Complaint, Plaintiffs allege “destruction of a victim’s body ... would be a violation of next of kins’ substantive ... due process rights, as guaranteed to them by the United States Constitution.” FAC ¶ 9, ECF No. 14 (emphasis added). Further, Defendants’ argument also misconstrues Plaintiffs’ burden under Rule 8. A plaintiff need not plead a specific legal theory “so long as sufficient factual averments show that the claimant may be entitled to some relief.” Fontana v. Haskin,
Therefore, Plaintiffs state a claim for violation of their substantive due process rights, and this portion of Defendants’ Motion to Dismiss is DENIED.
C. Monell Claim
Defendants move to dismiss Plaintiffs’ § 1983 claim against San Joaquin County and Sheriff Moore in his official capacity, arguing Plaintiffs “fail to plead sufficient facts to show a County policy or custom of mishandling human remains.” Mot. to Dismiss FAC 9, ECF No. 15-2. Plaintiffs counter arguing in essence that Sheriff Moore was acting as “an official with ‘final policy making authority,’ ” and was therefore a policymaker for purposes of Monell liability. Opp’n 11-14, ECF No. 22.
Under Monell, a municipality like San Joaquin County cannot be found liable for actions of its employees or officials under a respondeat superior theory, and is liable under § 1983 only if the constitutional injury was the result of a “custom, policy, or practice.” However, a “single decision may satisfy Monell’s municipal policy requirement” if that decision was “properly made by one of the municipality’s authorized decision makers,” i.e., “by an official who ‘possesses final authority to establish a municipal policy with respect to the challenged action.’ ” Gobel v. Maricopa Cnty.,
Here, Plaintiffs allege that Defendants’ employees, “based on a direct order ... of the Sheriff ... [,] ordered the well to be rapidly and completely dug up” in the manner alleged, as set forth above. FAC ¶ 11, ECF No. 14. Although the question whether Defendant Sheriff Moore had “final authority to establish a municipal policy with respect to the challenged action” and was exercising that authority is ultimately a matter of state law, Gobel,
Additionally, under § 1988, the suit against Sheriff Moore in his official capacity is a suit against the entity he works for, the County of San Joaquin, and the suit against Sheriff Moore in his individual capacity was dismissed with prejudice by a prior order under qualified immunity. Thus, the Court concludes Sheriff Moore should be dismissed as a defendant as redundantly pled. See Hillblom v. Cnty. of Fresno,
CONCLUSION
Therefore, IT IS HEREBY ORDERED that,
1. Defendant Sheriff Moore is DISMISSED as a defendant as redundantly pled.
3. Defendants’ motion to dismiss Plaintiffs’ substantive due process § 1983 claim, EOF No. 15, is DENIED.
4. Defendants’ motion to dismiss Plaintiffs’ § 1983 Monell claim, EOF No. 15, is DENIED.
IT IS SO ORDERED.
Notes
. All further references to "Rule” or "Rules” are to the Federal Rules of Civil Procedure unless otherwise noted.
. The following recitation of facts is taken, sometimes verbatim, from Plaintiffs’ First Amended Complaint, Aug. 6, 2013, ECF No. 14.
. The Supreme Court has explained that two separate “kinds of § 1983 claims may be
. Plaintiffs could not point to, nor is the Court aware of, any state supreme court finding a “property interest” in the remains of a relative for purposes of procedural due process.
. At oral argument, Plaintiffs' counsel rolled arguments under Marsh and Newman together, asserting that Marsh merely recognized the longstanding property interest in relatives' remains; however, as discussed above, see supra note Error! Bookmark not defined., Plaintiffs’ claim based on family integrity is a "substantive due process” claim, which is separate from Plaintiffs' claim for deprivation of a property interest, which is better understood as a distinct “procedural due process” claim.