Opinion
No. C99-2010.
December 3, 1999.
ORDER
This matter comes before the court pursuant to defendant Stephen Betz's motion for summary judgment (docket number 11), defendant Betz's October 13, 1999, motion to accept filing of surreply (docket number 22), plaintiff's October 25, 1999, motion for extension of time to file resistance to motion for summary judgment (docket number 23), plaintiff's November 1, 1999, motion to amend her complaint (docket number 30), defendant Betz's November 5, 1999, motion for extension of time to file reply brief (docket number 31), and defendant Betz's November 10, 1999, motion to clarify and to extend his expert witness deadline (docket number 34). For the reasons set forth below, the defendant's motion for summary judgment is granted.
Background
The plaintiff, Melissa Gale Funte Sansgard gave birth to Levi Sansgard on October 19, 1996, in Charles City (Floyd County), Iowa. Levi died at age 3-1/2 months on February 8, 1997, at the Floyd County Memorial Hospital in Charles City. The Floyd County Medical Examiner, Dr. Paul Royer, made a preliminary determination of the cause of death as Sudden Infant Death Syndrome (SIDS), and defendant Deputy State Medical Examiner Stephen Betz, M.D., performed an autopsy on the child February 8, 1997, at a Mason City hospital; his initial report indicated the cause of the child's death was undetermined. On February 10, 1997, State Medical Examiner Thomas Bennett, M.D., was contacted by the Floyd County sheriff's office to discuss the child's death. While there were no external signs of injury, Dr. Bennett found the child to have healing rib fractures, a hemorrhage to the left eye, and evidence of brain edema. On February 19, 1997, Doctors Bennett and Betz indicated that they thought the child had died from a head injury. While neither doctor had the benefit of examining the results of microscopic evidence by that date, this case was similar to other cases of dead babies the defendant doctors had investigated and had determined those deaths to be the result of shaken baby syndrome. On March 28, 1997, after examining 31 glass microscopic slides, Dr. Bennett issued his opinion concluding that Levi Sansgard had died as a result of a violent slamming episode. The plaintiff was arrested and charged with first-degree murder. Ultimately, the charges were dismissed. Doctors Bennett and Betz are sued in this case on the claim that they erroneously determined the cause of death to be the result of shaken baby syndrome rather than sudden infant death. Plaintiff alleges a Fourth Amendment violation under 42 U.S.C. § 1983.
Summary Judgment
A motion for summary judgment may be granted only if, after examining all of the evidence in the light most favorable to the nonmoving party, the court finds that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. Kegel v. Runnels, 793 F.2d 924, 926 (8th Cir. 1986). Once the movant has properly supported its motion, the nonmovant "may not rest upon the mere allegations or denials of [its] pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). "To preclude the entry of summary judgment, the nonmovant must show that, on an element essential to [its] case and on which [it] will bear the burden of proof at trial, there are genuine issues of material fact." Noll v. Petrovsky, 828 F.2d 461, 462 (8th Cir. 1987), cert. denied, 484 U.S. 1014 (1988) (citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986)). Although "direct proof is not required to create a jury question, . . . to avoid summary judgment, `the facts and circumstances relied upon must attain the dignity of substantial evidence and must not be such as merely to create a suspicion.'" Metge v. Baehler, 762 F.2d 621, 625 (8th Cir. 1985), cert. denied, 474 U.S. 1057 (1986) (quoting Impro Prod., Inc. v. Herrick, 715 F.2d 1267, 1272 (8th Cir. 1983), cert. denied, 465 U.S. 1026 (1984)). In applying these standards, the court must give the nonmoving party the benefit of all reasonable inferences to be drawn from the evidence. Krause v. Perryman, 827 F.2d 346, 350 (8th Cir. 1987).
CONCLUSIONS OF LAW Color of Law
Defendant Betz claims he was not acting under color of state law when he performed the autopsy on Levi Sansgard because he was a private physician providing a service to the state for a fee. Defendant Stephen Betz, M.D., performed the autopsy on Levi Sansgard at the request of Dr. Paul Royer, the Floyd County Medical Examiner, as provided by Iowa Code § 331.802(3)(j) (1999). The Iowa Code requires an autopsy to be performed on a "child under the age of two years if the death results from an unknown cause or if the circumstances surrounding the death indicate that sudden infant death syndrome may be the cause of the death." The Medical Examiner for Floyd County is a family practitioner, not a pathologist; therefore, the county has an arrangement with Pathology Associates of Mason City, the medical group with which the defendant practices, to perform autopsies when necessary.
To state a claim under Section 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42,46 108 S. Ct., 2250, 2254-55 (1988) (physician under contract with the state to provide medical services to inmates on a part-time basis acts under color of state law). The traditional definition of acting under color of state law requires that the defendant in a Section 1983 action have exercised power "possessed by virtue of state law and made it possible only because the wrongdoer is clothed with the authority of state law." United States v. Classic, 313 U.S. 299, 326, 61 S. Ct. 1031, 1043, 85 L. Ed. 1368 (1941). To constitute state action, "the deprivation must be caused by the exercise of some right or privilege created by the state . . . or by a person for whom the state is responsible," and "the party charged with the deprivation must be a person who may fairly be said to be a state actor." Lugar v. Edmondson Oil Co., 457 U.S. 922,936, 102 S. Ct. 2744, 2753 (1982). State employment is generally sufficient to render the defendant a state actor. Id. at 936, n. 18, 102 S. Ct., at 2753 n. 18. When private individuals or groups are endowed by the state with powers or functions governmental in nature, they become agencies or instrumentalities of the state and subject to its constitutional limitations. Evans v. Newton, 382 U.S. 296, 299, 86 S. Ct. 486, 488, 15 L. Ed.2d 373 (1965) (delegation of police powers, a government function, to campus police satisfies the state action component of a Section 1983 claim). A public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law. West, supra, at 49.
In this case, the defendant was empowered by the State of Iowa to perform an autopsy. The defendant reported the results of that procedure to the county medical examiner; the defendant discussed the autopsy results with officials from the sheriff's department; the defendant consulted with the state medical examiner, Thomas Bennett, and concurred with the finding that the child had died as a result of being shaken or slammed by another person. Defendants are not removed from the purview of Section 1983 simply because they are professionals acting in accordance with professional discretion and judgment. West, supra, at 52. Because this defendant performed the autopsy on Levi Sansgard by arrangement with Dr. Royer, the Floyd County Medical Examiner and an agent of the State of Iowa, the defendant performed that procedure "clothed with the authority of state law." Id. The defendant was a state actor when he performed the autopsy February 8, 1997, on Levi Sansgard.
Qualified Immunity
In the case before this court, the defendant doctor owed no duty to the plaintiff under state law. In Lawyer v. Kernodle, 721 F.2d 632 (8th Cir. 1983), the plaintiff sought damages for the negligent diagnosis of the cause of his wife's death under Missouri tort law and under Section 1983 for the alleged denial of due process caused by Kernodle's "erroneous" and "premature" communications of his conclusions that Diana Lawyer's cause was caused by trauma to the head. Lawyer was charged with second-degree murder, and, as in the case before this court, charges were eventually dismissed. The Eighth Circuit found the defendants owed no duty to the plaintiff. Without the requisite duty, plaintiff's tort claim failed. Also, the court found that Kernodle, in performing the autopsy of Diana Lawyer, was acting under the color of state law, exercising his professional judgment and discretion, and enjoyed the same qualified immunity privilege the coroner could assert. Id. at 635. See Kompare v. Stein, 801 F.2d 883 (7th Cir. 1986) (finding medical examiners entitled to qualified immunity when mother filed a Section 1983 claim after she is acquitted of voluntary manslaughter in the death of her 5-year-old child); Tri-State Mint, Inc., v. Riedel Environmental Services, Inc., 29 F.3d 424 (8th Cir. 1994) (finding corporate environmental analyst, acting as an agent of the state, owed no legally actionable duty of care to the site owner). However, the case was dismissed as the defendant had not been found to have violated any clearly established rights.
The defendant here claims that he is entitled to summary judgment on the basis of qualified immunity. The defendant claims the plaintiff has not suffered a violation of her Constitutional rights, and even if there had been such a violation, the right was not clearly established and a reasonable person would not have known the alleged violation.
A government official who performs discretionary functions is protected from suit under the doctrine of qualified immunity as long as the official's conduct did not violate clearly established statutory or Constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); White v. Armentrout, 29 F.3d 357, 360-61 (8th Cir. 1994). In order to lose qualified immunity, a state official must violate a person's clearly established Constitutional rights. Brown v. Nix, 33 F.3d 951, 953 (8th Cir. 1994). The contours of a clearly established right must be sufficiently clear that a reasonable official would understand what conduct violates that right. The test focuses on the objective reasonableness of an official's act. Id.
The qualified immunity inquiry involves a two-step process. First, this court must determine whether the plaintiff has alleged a violation of a Constitutional right. Second, this court must determine whether that Constitutional right was clearly established at the time the official acted. Siegert v. Gilley, 500 U.S. 226 (1991); Munz v. Michael, 28 F.3d 795, 799 (8th Cir. 1994).
For the law to be clearly established, it is only necessary that the unlawfulness of the official's act be apparent in view of pre-existing law. See Anderson v. Creighton, 483 U.S. 635, 640 (1987) (in light of preexisting law, the unlawfulness must be apparent). The proper inquiry is an objective, fact-specific question determined by examining the facts at issue under clearly established law at the time. Sellers By and Through Sellers v. Baer, 28 F.3d 895, 899 (8th Cir. 1994). Without this fact-specific inquiry, plaintiffs would be able to convert the rule of qualified immunity into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights. Bills v. Dahm, 32 F.3d 333, 335 (8th Cir. 1994). Plaintiff bears the burden of proving that the law was clearly established at the time of the acts in question. Johnson-El v. Schoemehl, 878 F.2d 1043, 1048 (8th Cir. 1989). In this case, the plaintiff has not met her burden.
As noted above, the Eighth Circuit Court of Appeals has made it clear that the appropriate level of inquiry focuses on the factual circumstance presented to the official at the time of his actions. Sellers, supra, at 900; Bills, supra, at 335. See also Baker v. Racansky, 887 F.2d 183, 187 (9th Cir. 1989) (the right referenced in the Harlow test is not a general Constitutional guarantee but its application in a particular context); Melton v. City of Oklahoma City, 879 F.2d 706, 729 (10th Cir. 1989) (qualified immunity analysis requires the court to consider the operation of the rule in the context of the circumstances with which the official was confronted).
In response to the claim of qualified immunity, the plaintiff contends that it was clearly established in 1997 that a person assisting police could be responsible under 42 U.S.C. § 1983 for damages caused by the initiation of a meritless prosecution. The plaintiff cites Albright v. Oliver, 510 U.S. 266 (1994), for this proposition. However, the Supreme Court in Albright only held that substantive due process does not provide a basis for the initiation of such a claim. Justice Rehnquist, writing for a plurality, suggested that the Fourth Amendment might provide a vehicle for such relief.
The plaintiff then cites two cases, decided after the Sansgard prosecution was initiated, for the proposition that a medical examiner can be sued on a Fourth Amendment theory. The fact that the cases were decided after this prosecution does not establish that the law was clearly established at the time the prosecution was initiated. Far more importantly, one of the two cases cited by the plaintiff in fact demonstrates that the law was not clearly established in 1997. In Gallo v. City of Philadelphia, 161 F.3d 217 (3d Cir. 1998), the Court made reference to Albright v. Oliver, supra. Specifically, the Court stated:
As several courts have noted, the Supreme Court's failure to rule on the merits of a Fourth Amendment claim, as well as the splintered views on the Constitutional implications of malicious prosecution claims expressed in the various concurrences, has created great uncertainty in the law. See Taylor v. Meacham, 82 F.3d 1556 n. 5 (10th Cir. 1996) (stating that " Albright muddied the waters rather than clarified them"); Reed v. City of Chicago, 77 F.3d 1049, 1953 (7th Cir. 1996) (referring to the " Albright minefield").Gallo simply decided that the defendant in that case in fact had been seized, an issue that should also be resolved in favor of the plaintiff herein. This is still a far cry from having the law clearly establish that a medical examiner can be sued for a Fourth Amendment seizure based on an erroneous opinion.
The law is not and was not clearly established in 1997 that a coroner or medical examiner violates the Fourth Amendment when he erroneously determines cause of death. No case cited by the defendant supplies any clearly established authority for the proposition that a medical examiner's opinion can ever amount to a seizure within the meaning of the Fourth Amendment. Further, although the plaintiff alleges that the defendants acted with deliberate indifference, she offers only evidence attempting to establish negligence. Negligence does not give rise to liability under Section 1983.
Plaintiff was seized, but not by Dr. Betz. Plaintiff provides no legal support for her claim of some sort of vicarious seizure.
Upon the foregoing,
IT IS ORDERED
1. Defendant Stephen Betz' motion for summary judgment (docket number 11) is granted.
2. Defendants' October 13, 1999, motion to accept filing of surreply (docket number 22) is denied as moot.
3. Plaintiff's October 25, 1999, motion for extension of time to file resistance to motion for summary judgment (docket number 23) is granted.
4. Plaintiff's November 1, 1999, motion to amend her complaint (docket number 30) is granted to the extent it seeks to clarify her federal claim. It is denied to the extent it seeks to add a state law tort claim.
5. Defendants' November 5, 1999, motion for extension of time to file reply brief (docket number 31) is granted.
6. Defendants' November 10, 1999, motion to clarify and to extend his expert witness deadline (docket number 34) is denied as moot.