Case: Doc 1 Filed: 02/24/14 Page: 1 of 11 PAGEID 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION DONNA ELFERS and ANGELA BROWN c/0 Gerhardstein Branch, Co. 432 Walnut St. Suite 400 Cincinnati, OH 45202 Plaintiffs, V. JUDITH A. VARNAU, 7661 White Swan Road Georgetown, Ohio Individually and in her o?icial capacity as the Coroner 0fBr0wn County and DENNIS VARNAU, 7661 White Swan Road Georgetown, Ohio 45121-9670 Individually as a jointparticipaat with Defendant Dr. Judith Varmm and BROWN COUNTY, COUNTY OHIO COMMISSIONERS Administration Building Suite# 101 800 Mt. Orah Pike Georgetown, Ohio 45121 Defendants. Case No. 1:14-ev-171 Judge COMPLAINT AND JURY DEMAND Case: DOC #2 1 Filed: 02/24/14 Page: 2 Of 11 PAGEID #1 2 I. PRELIMINARY STATEMENT 1.. This case cha]_lenges the outrageous conduct of the Brown County Coroner and her husband at the death scene of Plaintiffs? loved one. Defendants failed to allow an investigation by the Sheriff, failed to do basic forensic analysis, determined the cause of death without any thorough investigation and abandoned large pieces of skull at the death scene after removing the body. Defendants then rudely dismissed Plaintiff Elfers as she asked What she should do with the top of her brother?s skull and the other sku.ll fragments. This outrageous and shocking conduct is typical of the Coroner. Plaintiffs bring this action seeking fair compensation and also seeking to encourage the Coroner to stop using Brown County deaths as a pawn in her political feud with the Sheriff. Brown County residents deserve fair and thorough death scene investigations and deserve to have their deceased loved ones treated with dignity and respect. Hopefully this lawsuit will help make that happen. II. JURISDICTION 2. Jurisdiction over the claim arising from Defendant?s Violation of the Civil Rights Act is conferred upon this Court by 28 U.S.C. 1331, 1343 (3) and (4). 3. Jurisdiction over the state law claim is conferred upon this Court by 28 U.S.C. 1367. 4. Venue is proper in this Division. PARTIES 5. Plaintiff Donna Elfers is the sister of Hanson E. ones, Jr., deceased. She is a resident of this judicial district. Case: Doc 1 Filed: Page: 3 of 11 PAGEID 3 6. Plaintiff Angela Brown is the daughter of Hanson E. Jones, Jr., deceased. She is a resident of this judicial district. 7. Defendant Judith Varnau Varnau?) was at all times relevant to this action Coroner of Brown County, Ohio. Defendant is a ?person? under 42 U.S.C. 1983 and at all times relevant to this case acted under color of law. She is sued in both her individual and official capacities. 8. Defendant Dennis Varnau was at all times relevant to this action the husband of Defendant Judith Varnau. He has acted as a joint participant with her at death scenes, including the one at issue in this case. Defendant is a ?person? under 42 U.S.C. 1983 and at all times relevant to this case acted under color of law. He is sued in his individual and official capacities. 9. Defendant Brown County is a unit of local government organized under the laws of the State of Ohio. The County is sued. through the Brown County Ohio Board of County Commissioners ?who are named only in their official capacity pursuant to O.R.C. ?305.l2. Defendant County is a ?person? under 42 U.S.C. ?1983 and at all times relevant to this case acted under color of law. IV. FACTS A. Dr. Varnau?s Investigation of Hanson Jones?s Death 10. On or about August 7, 2013, Hanson E. Jones, Jr., died in his home. 11. He was shot through the head with a shotgun. 12. The impact of the gunshot caused massive trauma to Mr. Jones?s skull. Large pieces of his skull were separated from his body and clearly visible scattered about the home. 13. The Brown County Coroner, Dr. Judith Varnau, was called to the scene. Case: Doc 1 Filed: 02/24/14 Page: 4 of 11 PAGEED 4 14. At approximately 1:30 August 8, 2013, Defendant Judith Varnau arrived at Mr. Jones?s home, accompanied by her husband, Defendant Dennis Varnau. 15. Dr. Varnau ente_red Mr. }ones?s home with two sheriff officers. 16. Inside the home, she determined that the cause of death was suicide. 17. Dr. Vamau did no meaningful investigation at the scene. 18. Soon after ruling the death a suicide, she released the sheriff officers and took sole custody of the death scene. 19. Dr. Varnau never gave a permissive order to the sheriff officers or any other law enforcement officer as required by Ohio Rev. Code 313.1 1 (A) allowing them to take control of the death scene. 20. Dr. Varnau had no standing permissive order with the Brown County Sheriff or any other law enforcement agency allowing them to handle evidence, interview witnesses, take custody of bodies, or otherwise process the scenes of suspicious deaths for evidence or possible criminal violations. 21. Dr. Varnau had Mr. Jones?s body transported to a hospital 22. Large pieces of the skull were abandoned at the home by Defendants Dennis Varnau and Dr. Judith Varnau. 23. Defendants left the scene at approximately 3 :45 a.rn., and never returned. Dr. Va.rnau?s investigation was complete. 24. Dr. Varnau did not perform an autopsy or retain anyone else to perform an autopsy. 25. Dr. Varnau did not test the hands or any other portion of the deceased for gunshot residue. B. Donna Elfers? Discovery of Her Brother?s Skull and Confrontations with Defendants Case: 1:l4?cv?O017l?MRB Doe 1 Filed: 02/24/14 Page: 5 of 11 PAGEID 5 26. On August 8, 2013 at approxirnately 1:30 a.1n., Plaintiff Donna Elfers learned of her brother?s death. Donna was shocked and terribly upset. 27. At approximately 3 many members of the family met in Aberdeen. Donna tried calling the sheriff and the coroner to get information. The sl1eri.ff?s office referred her to Dr. Varnau, who she was not able to reach. 28. At approximately -4:30 Donna and two sisters decided to go to Hanson?s home to get more information. 29. When they arrived at Hanson?s home, no one was there. There was no crime scene tape. The door was unlocked. They entered the home. 30. What she saw inside horri?ed Donna. 31. On the windowsill was a large piece of their brother?s skull. Other skull fragments were lying about the premises. 32. A shotgun was lying on the floor. A large knife was stuck in the kitchen table. 33. Toe tags, latex gloves, and body bag wrappers were on the floor. 34. The sisters retreated from the home and drove off, but after half a mile, they turned around to retrieve the shotgun rather than leave it in an unlocked home. They brought the gun to the sheriffs of?ce but the sheriff refused to take the gun, saying it was the coroner?s investigation. Confused, Donna took the gun home. 35. On August 9, 2013, Ms. Elfers called Dr. Varnau?s home and spoke to Dr. Varnau?S husband, Defendant Dennis Varnau. Mr. Varnau told Ms. Elfers that he was at Mr. ones?s death scene with his wife and that he could tell her everything she wanted to know. 36. During the conversation, Mr. Varnau became agitated and began cornplaining to Ms. Elfers about a local political feud between himself, his wife, and the sheriff? office. Case: Doc 1 Fiied: Page: 6 of 11 PAGEID 6 When Ms. Elfers pleaded with him to stop talking about politics because she had just lost her brother, he shouted in reply: ?Everybody loses someone every day!? 37. On August l5, 2013, Ms. Elfers met with Dr. Varnau at her office. 38. At this meeting, Ms. Elfers inquired as to what she should do with the large pieces of her brother?s skull which were left behind at the scene. 39. In response to Ms. Elfers? inquiry, Defendant Varnau told her: ?You can always dig a hole and plant a tree.? 40. On August 17, 2013, Ms. Elfers retrieved the top of her brother?s skull and the other large pieces of skull from his home. 41. Ms. Elfers made arrangements with the funeral director who handled her brother?s body and he agreed to take possession of the pieces of her brother?s skull. On August 21, 2013, she met the funeral director at the Brown County Health Department to deliver the large pieces of Hanson?s skull so that they could be cremated like the rest of his body. 42. The entire experience of discovering her brother?s remains in his home, being rudely rebuffed by the Defendants, and holding the pieces of her brother?s skull in her home while she determined What to do and then while she took action, all caused Ms. Elfers severe anguish. C. Angeia Brown Cannot Beiieve Her Father Would Commit Suicide 43. Angela Brown is Hanson?S oldest child. Hanson ran off when she was seven years old. Angela missed him terribly, and as a teenager started searching for him. She found him at sixteen, and begged her mom to let her go live with him in Georgia. Her mom. relented and she moved to Georgia. They lived together for a little less than a year, but Angela got Case: Doc 1 Filed: 02/24fl4 Page: 7 of 11 PAGEID 7 homesick and moved back to Ohio. Once Angela left, Hanson missed his daughter so much that six. months later he followed her back to Ohio and l.ived near her until his death. 44. Over the last twenty years, Angela visited her father at least once a month and they had a very loving relationship. He always said, love you,? and hugged her at the end of every visit. 45. Angela Brown learned at approximately 1 am. on August 8, 2013, that her father was dead. Angela was shocked and terribly upset. 46. Angela learned from Donna what was discovered at the Hanson Jones home, including the large pieces of skull. She was Shocked and suffered extreme emotional distress that large pieces of his skull were left behind. 47. Angela cannot believe that her father committed suicide. He never spoke of suicide and he had. never had mental health problems. He did not leave a note. 48. Angela tried contacting Dr. Varnau soon after her father?s death to learn about the investigation of her father?s death, but she only reached Dennis Varnau. Dennis spent the conversation trying to convince her that her father committed suicide. He also spent much of the conversation talking about a political feud with the Brovvn County Sheriff and the suicide investigation of another person in Brown County. When Angela asked him about the knife stuck. into the table, he said: didn?t see that.? 49. Angela learned that Dr. Varnau didn?t look for bruises or do an autopsy. 50. Angela discovered that Dr. Varnau only interviewed one person as part of her investigation. 51. Angela is also troubled by the chair in which her father was seated. at his death. She had. never seen him sitting in that chair before. Case: l:l4?cv?0O17l?MRB Doc 1 Filed: 02/24/14 Page: 8 of 11 PAGEID 8 52, Angela has questions that will never be answered because Dr. Varnau ruled her father?s death a suicide without any meaningful investigation and without conducting an autopsy or forensic tests. For the rest of Angela?s life, her father?s death will be an open wound. 53. Angela was shocked and extremely upset that large pieces of her father?s skull were abandoned by the Defendants at the death scene. She was grateful that Plaintiff Elfers took care to eventually accomplish a proper disposition but horri?ed that the skull was possibly an important piece of evidence and simply abandoned; that her aunt had to possess it for days and that the coroner did not take custody or explain what should be done; and horri?ed that the death scene was so carelessly abandoned with the knife in the table and gun and shotgun shells lying about. D. Culpable Conduct 54. Defendants have each acted negligently, knowingly, intentionally, recklessly, and with deliberate indifference to the rights of Plaintiffs. 55. Defendant Dr. Varnau as the Coroner of Brown County, Ohio is the policymaker for Brown County Ohio with respect to all actions related to this case. 56. At all times relevant to this case Defendant Dr. Varnau has delegated to Defendant Dennis Varnau authority to take actions for the Coroner, including investigate death scenes, determine which body parts to retrieve and which to abandon, speak for the coroner to witnesses and to the family members of deceased, and otherwise jointly participate in the work of the Coroner. Defendant Dennis Varnau was at all times a joint participant in the actions taken under color of law by Defendant Dr. Judith Varnau. Case: Doc 1 Filed: 02/24/14 Page: 9 of 11 PAGEID 9 57. Defendants have acted consistent with a policy of disrespecting human remains by abandoning them at the death scene and disrespecting family members of deceased persons. This conduct is outrageous and shocking and has caused severe emotional distress to the Plaintiffs. 58. Defendants have also permitted an alleged political feud with the Brown County Sheriff to undermine the proper investigation of deaths, including the Hanson Jones death. This includes the failure to take custody of firearms used in deaths, provide for their testing, and otherwise coordinate with the sheriff at death scenes to ensure a thorough review of the cause of suspicious deaths is accomplished. In so doing the Defendants have broken with years of coordination previously enjoyed between the Brown County Coroner and the Brown County Sheriff. This failure of coordination and shoddy and incomplete work regarding the Hanson Jones cause of death and death scene is outrageous and has caused severe emotional distress to the Plaintiffs. 59. Since being elected Coroner with 176 write-in votes in 2012, Dr. Varnau has displayed a pattern of acting outrageou.sly in ways that shock the conscience. 60. Defendants have disrespected other bodies they have retrieved from death scenes and they have abandoned important evidence, including guns, at death scenes Without making arrangements for their proper testing, security and/or disposition of the weapon. 61. The policies, practices, and customs of Defendant Brown County, which are set by Defendant Judith Varnau as a policymaker for the county, were the moving force behind the Plaintiffs? injuries E. Injuries to Plaintiffs Case: Doc 1 Filed: 0224/14 Pageresult of the Defendants? outrageous and callous actions, Plaintiffs have suffered severe and debilitating emotional distress, including physical 63. Donna Elfers is distressed and weeps most times as she recalls the death scene, the abandonment of the large pieces of skull, and her encounters with Defendants. 64. Angela Brown likewise continues to suffer distress and intense emotions as she also relives the events following the death of her father, the abandonment of the large pieces of skull, and the shocking conduct of Defendants. V. FIRST CAUSE OF ACTION -- 42 U.S.C.. 1983 65. The Defendants, by engaging in outrageous actions which shock the conscience, violated the Plaintiffs? rights to due process of law secured by the Fourteenth Amendment to the United States Constitution. VI. SECOND CAUSE OF ACTION INF LICTION OF EMOTIONAL DISTRESS 66. Defendants Dr. Varnau and Dennis Varnau negligently and intentionally in?icted severe emotional distress on the Plaintiffs. JURY DEMAND 67. Plaintiffs hereby demand a trial by jury of all issues triable by a jury. PRAYER FOR RELIEF WHEREFORE, Plaintiffs demand that this Court award them: A. Compensatory damages in an amount to be shown at trial; 13. Punitive damages against Defendant Dennis Varnau and Defendant Judith Varnau only in an amount to be shown at trial(no punitive damages are sought against Brown County); C. Costs incurred in this action and reasonable attorney?s fees; and 10 Case: Doc 1 Filed: 02/24/14 Page: 11 of 11 PAGEID 11 Such additional relief as the Court deems just and proper. 11 Respectfully submitted, Alphonse A. Gerhardstein Alphonse A. Gerhardstein (0032053) Trial Attorney for Plaintiffs Jennifer L. Branch (0038893) Attorney for Plaintiffs Gerhardstein Branch Co. LPA 432 Walnut Street, Suite 400 Cincinnati, Ohi045202 Tel (513) 621-9100 Fax (513) 345-5543 Case: Doc 12 Filed: 04/17/14 Page: 1 of 16 PAGEID 43 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION DONNA ELFERS, et Case No. 1:14-cv-171 Plaintiffs, Judge Michael R. Barrett V. MEMORANDUM IN JUDITH A. VARNAU, et ai., OPPOSITION TO DEFENDANT BROWN MOTION TO Defendants. DISMISS AND REQUEST FOR ORAL ARGUMENT INTRODUCTION Defendants Judith Varnau, the Brown County Coroner, and Dennis Varnau, her husband, have been in a long~ru_nning political feud with the Brown County Sheriff. Complaint W1, 36, 48, 58; State ex rel. Vamau v. Wenninger, 131 Ohio St. 3d 169 (2012), rec0nsz'deral'i0n denied, 131 Ohio St. 3d 1501 (2012), and cert. denied, 133 S. Ct. 209 (2012). They have abused the power of the Coroner by declaring Hanson ones?s death a suicide, not based on a meaningful investigation, but for the purpose of divesting the Sheriff of any jurisdiction to investigate the death scene. Complaint 1, 14, 16-25. Mr. }ones?s daughter does not believe Mr. Jones committed suicide. Complaint 1] 47. As a result of Defendants? actions, Mr. Jones?s death has gone unsolved, which has caused his loved ones needlessly suffering. Complaint 42, 53, 62-64. 1. FACTS Dr. Varnau has no standing permissive order with the Brown County Sheriff. Complaint ii 20. As a result, Dr. Varnau has sole custody of death scenes when she rules the death a suicide. Case: Doc 12 Filed: 04/17/14 Page: 2 of 16 PAGEID 44 Complaint 18, 19. Without a permissive order to process a death scene, the Brown County Sheriff has no authority to handle evidence, take custody of bodies, or otherwise process the scenes of suspicious deaths. Complaint ?l 20; Ohio Rev. Code 313.11; 1988 Ohio Op. Att'y Gen. No. 1988-035, p. 2-155 313.11 requires that everyone, including law enforcement personnel, must receive a permissive order from the coroner before removing or disturbing the body or articles found on or near the body,? and ?the area ?near the body? is within the discretion of the Dr. Varnau has abused her power of being able to declare a death a suicide for the purpose of keeping the Sheriff from investigating deaths in Brown County, including Mr. Jones?s death. Complaint 1, 54, 58. Such actions shock the contemporary conscience. Dr. Varnau was called to Hanson .lones?s home in the early hours of August 8, 2013. Complaint 11 13. She arrived around 1:30 a.m. accompanied by her husband, Dennis Varnau, to whom she had delegated the authority to take actions for the coroner, including investigating death scenes. Complaint 14, 56. They entered. the home with two sheriff officers, and Without any meaningful investigation declared. Mr. Jones?s death a suicide. She released the officers from the scene, had Mr. Jones? body transported to a hospital, and left the scene at 3 :45 a.m. two hours and ?fteen minutes after arriving. Complaint 15-18, 21, 23. She knowingly left behind. toe tags, body bag wrappers, the gun used in Mr. Jones?s death, and large pieces of his skull. Complaint 31-34, 54. She also intentionally left the door unlocked. Complaint 29, 54. Donna Elfers and her two sisters arrived at their brother?s home two hours later. Complaint 1] 28. They were horri?ed by the scene. Complaint 1] 30. Things would just get Worse. Over the next two weeks, Ms. Elfers was forced to take custody of her brother?s gun and gather the pieces of his skull so they could be reunited with his body. Complaint 34, 40-42. Case: l:l4?cv?OO17l?MRB Doc 12 Filed: 04/17/14 Page: 3 of 16 PAGEED 45 Dr. Varnau. refused to help, telling her instead to ?Dig a hole Complaint 38-39. Mr. Varnau took the calls of Ms. Elfers and Mr. Jones?s daughter Plaintiff Angela Brown and ranted about his political feud with the sheriff, tried to convince them Mr. Jones committed suicide, and even shouted at Ms. Elfers that ?Everybody loses someone every day!? Complaint 35-36, 48. Angela Brown will always wonder why her father died in a chair she had never seen him sit in. Complaint ii 5 l. Angela and Donna will always wonder why Hanson did not leave a note; how he reached all the way down the barrel of a long shotgun to pull the trigger; whether there was gunshot residue on his hand; why a knife was stuck in the table; what an autopsy would have revealed; and how he really d.ied since they do not believe he committed suicide. Complaint I l, 17, 24, 25, 47-50. None of those questions will ever be answered. because the Coroner and her husband prevented competent investigators from the Sheriffs office from investigating the death in order to fuel their political feud with the Sheriff. Complaint l7, l8, 23. Dr. Varnau and her husband prevented the Sheriff from conducting an investigation. That conduct alone shocks the conscience. However, they also disrespected Mr. Jones?S body and his family, which is separately shocking. Additionally, they did not secure the scene or the evidence, which is equally shocking. And when all their actions are combined, there can be no question that their behavior shocks the conscience of the Court. Thus, the County?s motion to dismiss should be denied and the case be permitted to proceed to discovery. 11. LAW AND ARGUMENT A. Motion to Dismiss Standard of Review In considering a motion made under Fed. R. Civ. P. 12, this court ?must construe the complaint in the light most favorable to the plaintiff[s], accept all factual allegations as true, and determine whether the plaintiff can prove no set of facts in support of [their] claims that would entitle them to relief.? LRL Properties v. Portage Metro Housing Authority, 55 F.3d 1097, M00 3 Case: DOC #2 12 Filed: 04/17/14 Page: 4 of 16 PAGEID #1 46 (6th Cir. 1995) citing In re DeL0r?ean _Motor Co., 991 F.2d 1236, 1240 (6th Cir. 1993); Directzv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007); Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993) (indicating that the purpose of Fed. R. Civ. P. 12(b)(6) is simply to determine if the plaintiff is entitled to relief if all the allegations in the plaintiffs complaint are true). The complaint does not need to express in detail all t-he particularities of plaintiff?s claims. Westlake 12. Lucas, 537 F.2d 857, 858 (6th Cir. 1976). The court cannot dismiss a complaint merely because it does not believe the comp1aint?s allegations. Neirzke v. Williams, 490 U.S. 318, 326- 7, 109 1827, 1832 (1989). The rule erects a powerful presumption against dismissing pleadings for failing to state a cognizable claim for relief. See Mae: V. Mountain States Tel. Tel, Inc:., 54 F.3d 1488, 1496 (10th Cir. 1995). A complaint need only give ?fair notice of what the Plaintiffs claim is and the grounds upon which it rests.? Delorean, 991 F.2d at 1240. A complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory. Id. at 1240. Fed. R. Civ. P. 8 merely requires a ?short and plain statement? of the claim showing that the plaintiff is entitled to relief. ?The plaintiff has accomplished this goal when the complaint affords the defendant fair notice of what plaintiffs claim is and the grounds upon which it rests.? Culberson v. Doom, 65 F. Supp.2d 701, 705 (Ohio 1999). Rule 12(b)(6) tests the sufficiency of the statement of the citation for relief, ?it is not a procedure to resolve a contest about the facts or merits of the case.? In?. Granting a motion to dismiss is an extraordinary remedy that should only be done when the plaintiff can prove no set of facts that would entitle him to relief. Id. B. The Varnaus Engaged in Conduct Shocking to the Conscience Case: Doc 12 Filed: 04/17/14 Page: 5 of 16 47 The Supreme Court has emphasized many times that ?the touchstone of due process is protection of the individual against arbitrary action of government.? County of'Sacrament0 12. Lewis, 523 U.S. 833, 845 (l998)(internal citations omitted). This protection, drawn from the Fourteenth Amendment, guarantees fundamental procedural fairness, and for well over 100 years, the Due Process Clause ?has been understood to contain a substantive component one barring certain governmental actions regardless of the fairness of the procedures used. to implement them.? Planned Parem?hood v. Casey, 505 U.S. 833, 846 (1.992). Substantive due process, among other things, guards the public against state of?cials who engage in conduct so egregious that it shocks the conscience. Lewis, 523 U.S. at 846. Such conduct ??Violate[s] the decencies of civilized conduct.? Id. A court determining Whether conscience?shocking conduct has occurred must take into account the totality of facts of a given case. Range v. Douglas, 878 F. Supp. 2d 869, 879 (S.D. Ohio 2012) (holding that morgue attendant having sex with bodies in the morgue shocks the conscious but ?nding county defendants not liable because they did not know of the shocking behavior) (case currently on appeal). \lVhen executive action is challenged as a violation of substantive due process, ?the threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.? Lewis, 523 U.S. at 846-47. In that case the plaintiff decedent was a passenger on a involved in a high speed chase. The officer was following too closely and struck the boy when he fell off the during a turn, killing him. Id. at 836-38. On such facts involving a rapidly unfolding situation, the Supreme Court held that only a purpose to cause harm unrelated to a legitimate governmental goal could meet the test of ?conscience shocking.? Otherwise the Constitution would be demoted to serving as a ?font of tort law.? Id. at 847 n. 8. The Supreme Court noted, Case: DOC #2 12 Filed: 04/17/14 Page: 6 Of16 PAGEID #2 48 however, that a different result maybe found when executive officers have the opportunity for deliberation before causing harm. Id. at 849-521 Where law enforcement officers ?are afforded a reasonable opportunity to deliberate various alternatives prior to electing a course of action . . . their actions will be deemed conscience?shocking if they were taken with ?deliberate i.ndifference? towards the plaintiff? federally protected rights.? Claybrook v. Bird/zwell, 199 F.3d 350, 359 (6th Cir. 2000)? The Sixth Circuit has held that a substantive due process claim may be maintained where the plaintiff alleges conduct that shocks the conscience of the court. Coon v. Heron, 181 F.3d 100, .1999 WL 357779 at *2 (6th Cir. May 19, 1999). A plaintiff who alleges such conduct need not demonstrate the deprivation of a specific constitutional right. See, e. Mertik v. _BlaZ0ck, 983 F.2d 1353, 1367-68 (6th Cir. 1993) (explaining that substantive due process claims fall into two categories: those which involve the denial of a specific right, privilege, or immunity is pleaded, and those in which the alleged conduct of state actors ?shocks the conscience?). 1. Dr. and Mr. Varnau?s decision to abandon the victims? body parts, abandon evidence, and leave the death scene unsecure shocks the conscience. This Court applied the ?shocks the conscience? theory in a case Where a homicide scene was left unprotected _so that evidence could be destroyed and the victim?s body was allowed to be removed frern the scene. Culberson v. Dorm, 125 F. Supp.2d 252 (SD. Ohio 2000). In Culberson a police chief chose among alternative courses of action and decided to abandon a pond containing a murder victim?s remains. As a result, the remains were removed from the pond and never recovered by the victim?s family. This Court held that such a course of action 1 Defendants are Wrong in their claim that ?to state a cognizable substantive due process claim, the plaintiff must allege conduct intended to Doc #10, Motion to Dismiss, PAGE 1D 32. 2 An off1cial?s knowledge may be proved circumstantially by evidence showing the official was exposed to information concerning the risk and, where a risk is obvious, through the concept of constructive knowledge. Ewolski v. City of Brunswick, 287 F.3d 492, 513 fn. 7 (6th Cir. 2002). 6 Case: Doc 12 Filed: 04/17/14 Page: 7 of 16 PAGEID #149 met the shocks the conscience test because the chief of police had. ?abandon[ed] control, custody, or possession? of the remains of a homicide victim allowing someone to steal the remains and hide them from law enforcement and the family. Id. at 270. The police chiefs conscience shocking actions in Chlberson are similar to Dr. Varnau and her husband?s actions in this case. Defendants Dr. and Mr. Varnau abandoned large pieces of Mr. Jones?s skull, the shot gu.n, the knife stuck in the table, the shotgun shells, gun residue (by not checking for any on the body), and they abandoned the scene by leaving the premises unlocked and unguarded, thus allowing evidence to be removed. Complaint l, 22, 25, 29, 31, 32, 48, and 53. Thus, the Complaint alleges sufficient facts for the Court to find Dcfendanfs behavior shocking. 2. Dr. and Mr. Varnau?s disrespect of Mr. Jones?s body and disrespect shown toward his loved ones shocks the conscience. Defendants Dr. and Mr. Varnau went further in their shocking behavior; they disrespected Mr. Jones?s body by leaving at the scene large pieces of skull and skull fragments, and by making statements disrespectful about Mr. ones?s body to his family. Complaint 1, 12, 22, 31, 57, and 60. Even when asked by Plaintiff Donna Elfers to retrieve the large pieces and fragments of Mr. .loncs?s skull and reunite them with his body, Dr. Varnau refused, telling her to just dig a hole. Complaint 38-39. Substantive due process includes ??the right to be free from state intrusions into realms of personal privacy and bodily security through means so brutal, demeaning and harmful as literally to shock the conscience.? Chesher v. Neyer, No. 1. at *lO-11 (S.D. Ohio July 29, 2004) (Spiegel, J.) (quoting Barrett 12. Outlet Broadcastmg, 22 F.Supp.2d 726, 744 (S.D. Ohio 1997). In Chesher, this Court held that the plaintiffs? substantive due process rights were violated by the County when its chief policymaker in regard to the morgue, the Coroner, permitted a photographer to breach the rn0rgue?s minimal security, physically touch and move Case: DOC #2 12 Filed: 04/17/14 Page: 8 01?16 50 the bodies under its protection, and memorialize that abuse in pliotographs, absent any justifiable forensic purpose. Chesher, No. l:0l?CV?00566 at *10~l1 (S.D. Ohio July 29, 2004). In Outlet? Broadcasting, media defendants acting under color of law violated plaintiffs? substantive due process rights by disturbing and manipulating the plaintiffs? decedent to portray her in a false light in their news broadcast. Barrett" V. Outlet? 22 F.Supp.2d 726, 733-34 (S.D. Ohio 1997). In analyzing the civil rights claim for abusing the corpses in the morgue in Chesher, the Court reviewed the precedent and stated, ?In both [Ouller Br0adc'as?tmg and Dean], the authorities permitted a corpse to go unguarded resulting in its manipulation for reasons not related to law enforcement, medical, or other governmental purposes. Furthermore . . . zfrhe County allowed the bodies ofthe deceased in the Morgue to go unguarded, this Court could?nd [such] (."0nducl' as ?shocking to the eomcienee as the events of C'uZbers0n. Chesher, No. at 12 (SD. Ohio July 29, 2004) (emphasis added). In affirming Judge Spiegel?s denial of summary judgment to the Coroner in Chesher, the Sixth Circuit noted that ?The Coroner?s Office has a duty to hold bodies placed in its custody in a safe and respectful rnanrier.? Chesher v. Neyer, 477 F.3d 784, 802 (6th Cir. 2007). Failure to perform this duty violated plaintiffs? substantive due process rights. lhe actions of Dr. and Mr. Varnau in abandoning Mr. Jones?s body parts, disrespecting his body integrity and disrespecting his body to his family are as conscious shocking as the behavior in Chesher. 3. Dennis Varnatfs presence at Hanson Jones?s death scene shocks the conscience. The mere presence and involvement of Dennis Varnau in Hanson Jones?s death investigation. shocks the conscience. Like the photographer in Chesher, there is no law enforcement, medical, or other governmental purpose for Dennis Varnau to be anywhere near a dead body in the custody of the Brown County coroner. Range v. Douglas, 878 F. Supp. 2d 869, Case: Doc 12 Filed: 04/17/14 Page: 9 of 16 PAGEID 51 880 (SD. Ohio 2012) (citing Chesher V. Neyer, Case No. l:0l?cV?566, Doc. 224, at l2 (S.D. Ohio July 28, 2004). In Barrett, the court did not consider the media defendants? entrance into the home as part of the substantive due process claim since it was tl1e basis of the plaintiffs? Fourth Amendment claim. 22 .Supp.2d at 744. However, the Plaintiffs here have not made a Fourth Amendment claim so the Court should consider Mr. Varnaifs entrance onto the scene, and take note of the Barrett court?s ?nding in the Fourth Amendment context that law enforcement officers justified in entering a home can unreasonably exceed their authority to control the premises when ?they allow third parties who are not present for any law enforceinent purpose to enter the premises.? Id. at 737. In this case, Mr. Varn_au?s entrance onto the death scene was not only unrelated to any Valid. law enforcement purpose, his very presence was destructive to the sheriffs officers? efforts to their duties. Complaint ii 14, 5 8. Dennis Varnau-?s long??standing direct animosity towards the Brown County Sheriff makes his presence at suspicious death scenes repugnant. Further, he should not be communicating with family members about their loved one?s death, especially to complain about his political feuds with the Sheriff. It is the coroner?s duty to communicate with family members of the deceased. Ohio Rev. Code 3l3.l-4. The coroner may appoint subordinates, but there is no indication she has properly appointed her husband, and if she were to employ him it would Violate Ohio?s nepotism laws. See Ohio Rev. Code 313.05, 2921.42, 2921.43. Dennis Varnau?s Very presence at Hanson Jones?s death scene shocks the conscience. 4. Dr. and Mr. Varnau?s prevention of an investigation into Hanson ones?s death shocks the conscience. Case: DOC 12 Filed: 04/17/14 Page: 10 Of 16 PAGEID #1 52 Most egregiously, Dr. and Mr. Varnau, without any autopsy, gunshot analysis, gun residue analysis, forensic analysis, weapon testing, or useful witness determined Mr. Jones committed suicide. The Varnaus were on the scene for approximately two hours but declared the death a suicide before leaving the scene and before dismissing the officers. This decision was not made based on evidence, since there was no meaningful investigation conducted in the short time the Varnaus were on the scene. Complaint l, 14, l7?l 8, 23, 52. This decision was made to keep the Sheriff from having jurisdiction to investigate the scene. Dr. Varnau purposely refused to allow the Sheriff to handle evidence, interview witnesses, take custody of bodies, or otherwise process death scenes. Complaint l, 19-20. Even when the Plaintiffs found evidence after the Vamaus abandoned the scene, and brought the evidence to the Sheriff, the Sheriff refused to take the evidence saying it was the coroner?s investigation. Complaint it 34. The Varnaus declared the death a suicide in order to prevent the Sheriff from investigating the death scene because Mr. Varnau and his wife had a political feud with the Sheriff. Complaint 36, 58. This deliberate action to not allow the Sheriff to investigate or preserve evidence or even to conduct an autopsy leaves the true cause of death unsolved. Complaint ii 52. Defendant?s conduct will result in Plaintiffs? suffering for the rest of their lives because their loved one?s death will be an open wound. Id. By ruling the death a suicide without an investigation and depriving the Sheriff of the ability to conduct an investigation, Dr. Varnau. has deprived the plaintiffs from their property righ_t of ?ling a potential wrongful death action. See Fossyl v. Watson, SDOH No. l:02?cv?722, Doc. 262, (Apr. 28, 2009), where loved ones were able to obtain a jury verdict proving the defendants murdered their sister 32 years 3 Only one witness was interviewed. Complaint 1] 50. The Varnaus did not interview Plaintiff Angela Brown, who did not believe her father committed suicide. Complaint 1] 47. 10 Case: DOC #2 12 Filed: 04/17/14 Page: 11 Of 16 PAGEID 53 earlier. The identity of the killers was delayed due to the actions of the former Brown Coun.ty?s These egregious actions of Dr. Varnau and her husband, which are motivated by their political feud with the Sheriff, are by themselves shocking to a contemporary conscience. Dr. Varnau prevented the Sheriff from investi.gatin.g Hanson Jones?s death. Courts are shocked by officials who choose not to conduct meaningful death investigations for improper motives. The most similar case on point is Kammeyer City QfShar0nvilZe, No. C-1 2003 WL 25774000 (S.D. Ohio Feb. 13, 2003). In Kammeyer, the plaintiffs argued that the police cover up of a murder to prevent disclosure of an off1cer?s misconduct was an abuse of power that shocked the conscience. The Court held, in denying summary judgment to the officers, that: It is shocking that the very authorities in whom Plaintiffs put their trust to conduct a murder investigation allegedly covered?up evidence pointing to the killer. It is further highly disturbing that the police allegedly led Plaintiffs to believe that the murders were being investigated, advised Plaintiffs that calling too often seeking progress reports would hurt the investigation, and misled the Plaintiffs that there was ilisuif?cient evidence to charge [the killer]. Id. at The plaintiffs in Kammeyer alleged that the cover?up and unresolved murder resulted in years of fear and interference with their property rights in the form of their right to an inheritance and potential wrongful death actions and extended grief and needless suffering over the unsolved death. Id., Doc. 58 (Memorandum iniOpposition to l\/lotion to Dismiss). The Varnau?s actions are similar to the police actions in Kammeyer: a suspicious death was not investigated thus leaving the case unsolved, causing harm to the Plaintiffs. As the Court in Kammeyer found such behavior shocking, so should this court find the Varnau?s behavior in 4 Brown County?s current Sheriff, Dwayne Wenninger, was not one of the sheriffs sued in Fossyl. As alleged in the Complaint, Sheriff Wenninger, upon taking office, opened the Fossyl cold case and through his of?ce?s investigation, identi?ed the murder suspects. See, Fossyl v. Watson, SDOH Case No. 1:-2-cv-722, Doc. 1, Complaint. ll Case: DOC #3 12 Filed: 04/17/14 Page: 12 of 16 PAGEID #2 54 prohibiting a death investigation from being conducted in order to fuel. a political feud with the Sheriff. Likewise, in Culberson, the court noted that the chief of police who abandoned the murder victirn?s body happened to be a ?close, personal friend? of her murderers. 125 F. Supp. 2d. at 256. In contrast to these cases is Callihan v. Sudimack, 117 F.3d 1420 (6th Cir. 1997), which was relied on heavily by the Defendants. In that case, a coroner erroneously declared a death a suicide and refused to do an autopsy at the request of the family. Id. at The Callihan p. .ai.ntiffs did not allege that the coroner?s motives were suspect. The eourt?s conscience was also assuaged because the family had the ability to compel an autopsy but did not do so. Id. at In this case, Dr. Varnau did not mishandle an investigation. as the Coroner in did, Dr. Varnau, and her husband, prevented the Sheriff from conducting an investigation. By declaring Mr. Jones?s death a suicide, Dr. Varnau prevented the Sheriff from handling evidence, interviewing witnesses, taking custody of bodies, body parts, and evidence, conducting tests, or otherwise process the scenes of suspicious deaths for evidence or possible criminal violations. Complaint 21-20. On the contrary, in Callihan, the sheriff actually conducted an investigation before deciding to adopt the coroner?s determination of death. Id. at Nor has Dr. Varnau ad.opted a standing permissive order that would allow the Sheriff to conduct competent death scene investigations. Her actions in preventing the Sheriff from investigating Mr. ones?s death are motivated by her and her husband?s feud with the current Brown County Sheriff. Complaint ii 50. Such behavior should clearly shock the conscience of this Court. When all of the Varnau?s actions are taken together there can be no doubt that the Complaint states a claim for a substantive due process violation. The people ofBrown County agree. They have collected the necessary signatures to petition a court to remove Dr. Varnau 12 Case: Doc 12 Filed: 04/17/14 Page: 13 one PAGEID 55 from off1ce.5 Adormon v. Varrzau, Case No. 2014~02~67, Complaint for Removal of Public Officer (Brown County Court of Common Pleas, Apr. 16, 2014). C. Plaintiffs Have Stated a Procedural Due Process Claim A procedural due process claim under the Fourteenth Amendment requires that the plaintiff show (1) the deprivation (2) of property (3) under color of state law. Brorherlon, 923 F.2d 477, 479 (6th Cir. 1991). In addition, the plaintiff must show either that the conduct was caused by ?established state procedure rather than random and unauthorized action? or that ?the means of redress for property deprivations provided by the state of Ohio fail to satisfy the requirements of procedural due process.? Id. (citing, respectively, Hudson v. Palmer, 468 U.S. 517, 532 (1984) and Parrcm? v. Taylor, 451 U.S. 527, 536-37 (1981). Defendant Brown County argues Plaintiffs did not state a claim for procedural due process because Plaintiffs have not alleged a deprivation of a property interest protected by the Due Process Clause. Doc. 10 PagelD #31. Speci?cally Defendant argues that Plaintiffs have not alleged that they were deprived of the property interest identified in _Br0t'l1errort, 923 F.2d 477 (6th Cir. 1991). In Brorlzertori, the decedent?s corneas had been removed pursuant to the policy Dr. Cleveland established, satisfying the Hudson requirement above, so the only question facing the court was whether next of kin had a property interest in their decedent?s remains sufficient to satisfy the de?nition of ?property? under the Fourteenth Amendment. It held that a decedent?s next of kin did in fact possess a property interest sufficient to support a due process claim. 5 Amber Hunt, Vrsiringjudge to handle move to oust _Brown County coroner, Cincinnati Enquirer, Apr. 16, 2014, available at 1.4/04/1 (last visited Apr. 17, 2014); Maxim Alter and Jason Law, Petmfon to oust Brown County Coroner Dr. Judith Vormm tops required 2, 000 signatures, Channel 9 WCPO Cincinnati, available at (last visited April 15, 2014). 13 Case: Doc 12 Filed: 04/17/14 Page: 14 01?16 PAGEED 56 Brotherron, 923 F.2d at 481 -482.6 Having reviewed the Ohio cases on point, the court determined tl1at the rights provided by Ohio 1_aw to next of kin regarding a decedent?s remains ?iforrn a substantial interest the dead body, regardless of Ohio? classification of that interest. We hold the aggregate of rights granted by the state of Ohio to [next of kin] rises to the level of a ?legitimate claim of entitlement? in [the decedent?s] body . . . protected by the due process clause of the Fourteenth Amendment.? Id. The ruling in Brotherton was followed in Hamey v. Parrorr, 2005 WL 2397704 at *5?6 (2005). Since then the Ohio Supreme Court held in Albrecht? v. Treon, 1 18 Ohio St. 3d 348 (2008), that Ohio law does n.ot provide a property right to next of kin in ?autopsy specimens? derived from their decedents. Id 11 29. That case, however, in no way affects the present case. Albrecht dealt narrowly with autopsy specimens, which Coroners may lawfully collect under Ohio law, rather than the abuse of corpses through conduct having no forensic purpose as in the present case. See id. 32-36. Albrecht also distinguished Brorherron and the Ohio cases it examined as not ?relevant? to answering the narrow question regarding a property interest presented by the case. Id. 19-23. This case, therefore, sounds more in Chesher than in Albrecht. Signi?cantly, Chesher found that plaintiffs in that case retained a property interest in their decedents? remains sufficient to support a due process claim. in addition to their substantive due process claim. It noted, as did the court in Brotherton, that the bundle of property rights represents more than just the physical possession: ?it is also the sum of all the rights and powers incident to the ownership of the physical thing,? including the sine qua non of property rights, the right to ?use the physical thing to the exclusion of all others.? Chesher, No. 6 The court noted that, While the existence of a property interest depends upon state law, its sufficiency under the Constitution is a question of federal law. Id. Whatever label the state may place on the interest, the federal deterIninati.on depends upon ?the substance of that right." Id. at 482. 14 Case: DOC 12 Filed: 04/17/14 Page: 15 of 16 PAGEID 57 at 13 (SD. Ohio July 29, 2004). See Brotherron, 923 F.2d at 481. In Chesher, despite the lack of a factual situation involving the retention of body parts, as in Br?0t'hert'0n or Hainey, ?[t]he allegations of photographing, touching, manipulating, and posing the corpses would . . . be sufficient to sustain a viable [procedural due process] claim. ?Meddling with? corpses could be suf?cieiit to infringe the family members? intangible property interests in the deceased bodies.? Chesher, No. l:0l?CV?00566 at 3 (S.D. Ohio July 29, 2004). I In this case Plaintiffs claim Dr. and Mr. Varnau ?nieddled with? Mr. Jor1es?s body by leaving large pieces of his skull and skull fragments at the scene and treating his body parts with disrespect. Complaint 1, 22, 31, 39. Chesher thus supports a procedural due process claim for irnerference with property for the abuse of the remains of plaintiffs? loved ones outside the context of the disposition of bodies pursuant to established autopsy procedures. Thus, Plaintiffs have stated a sufficient property right to defeat Defendants? motion to dismiss. D. Plaintiffs Have ot Made a Claim against the County for Intentional infliction of Emotional Distress Defendant Brown County moves to dismiss Plaintiffs? state law claim for negligent and intentional infliction of emotional distress. However, Plaintiffs did not sue Defendant Brown County on any state law claim. Complaint ii 66. 9 9 CoNoLusroN For the reasons stated in this memorandum, Plaintiffs respectfully request that Brown County?s Motion to Dismiss be denied. REQUEST FOR ORAL ARGUMENT Pursuant to Local Rule Plaintiffs respectfully request oral argument on the motion to dismiss. This case involves unique issues of fact and law. The case law involving a substantive due process claim is complex. In order to ensure a fair resolution of the case and 15 not yet entered an appearance electronically. Case: Doc 12 Filed: 04/17/14 Page: 16 of 16 PAGEED 58 because of the public importance of the issues raised in the motion, Plaintiffs believe oral argument would be bene?cial to the Court and to the parties. Respectfully submitted, Jennifer L. Branch Alphonse A. Gerhardstein (0032053) Trial Attorney for Plaintiffs Jennifer L. Branch (0038893) Gerhardstein Branch, Co LPA 432 Walnut Street, Suite 400 Cincinnati, Ohio 45202 (513) 621-9100 (513)345-5543 Fax ibranch@gbfirm.co1n CERTIFICATE OF SERVICE I hereby certify that on April 17, 2014, a copy of the foregoing pleading was ?led electronically. Notice of this ?ling will be sent to all parties for whom counsel has entered an appearance by operation of the Court?s electronic filing system. Parties may access this ?ling through the Court?s system. I further certify that a copy of the foregoing pleading and the Notice of Electronic Filing has been served by ordinary U.S. mail upon all parties for whom counsel has Jennifer L. Branch Attorney for Plaintiffs 16 '23? 3: . {'33 i jg: - -- mmngamamswaa .1.-I. 4 - - %4wmga?gw - E?trq?? fa?eii . - . . .. - -24; amen; ax3aa1.Es_ - :2 mam %g '2 .33 I Case: Doc 10 Filed: 03/24/14 Page: 1 of 15 PAGEID 26 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION DONNA ELFERS, et al., CASE NO.: Plaintiffs, JUDGE MICHAEL R. BARRETT VS. BROWN COUNTY, OHIO I BROWN COUNTY OHIO BOARD OF JUDITH A. VARNAU, et a1., MOTION TO BISMISS Defendants. Defendant Brown County, Ohio Brown County, Ohio Board of Commissioners (?Brown County?)1 respectfully requests that this Honorable Court dismiss the Plaintiffs? claims pursuant to Rule l2(b)(6) of the Federal Rules of Civil Procedure. Plaintiffs? Complaint (ECF 1) fails to state a claim upon which relief can be granted and Brown County is entitled to dismissal of all claims against it with prejudice. A melnorandum in support of this Motion follows. Respectfully submitted, MAZANEC, RASKIN RYDER CO., L.P.A. S/Cara Wright TODD M. RASKIN (0003625) CARA M. WRIGHT (0084583) 100 Row 34305 Solon Road Cleveland, OH 44139 (440) 248-7906 (440) 248-8861 Fax Email: Counsel for Defendant Brown County, Ohio/Brown County Ohio Commissioners 1 Pursuant to RC. ?305.l2 Ohio counties may sue and be sued through their Board of Commissioners. Plaintiffs have filed suit against the county commissioners in their official capacity. A suit against government officials in their official capacities is the equivalent of a suit against the governmental entity. Will v. Mich:'gan Dept. 0fStare Police, 491 U.S. 58, 68 (1989). Case: Doc 10 Filed: 03/2414 Page: 2 of 15 PAGEZD 27 MEMORANDUM TN SUPPRT 1. STATEMENT GE THE CASE I Plaintiffs have filed suit against Brown County alleging a Violation of their Fourteenth Amendment right to due process and a state law claim for intentional infliction of emotional distress arising from the death of Hanson Jones. According to the Complaint, Plaintiff Donna Elfers is Mr. Jones? sister and Plaintiff Angela Brown is his daughter. ECF l, 15-6. The facts alleged in the Complaint are insufficient to plausibly allege either claim and, for this reason, Brown County is entitled to dismissal of all claims against it with prejudice. H. STATEMENT OF THE FACTS The following facts are alleged in the Plaintiffs Complaint and, for the purposes of this motion only, are presumed to be true. On August 7, 2013 Hanson E. Jones died as a result of a gunshot wound to the head. ECF 1, ?l10?1 l. The Brown County Coroner Dr. Judith Varnau and her husband, whom she has delegated the authority to assist in investigating death scenes, responded to Mr. Jones? residence, the scene of his death, at approximately 1:30 am. Id. l4, 56. Dr. Varnau determined that the cause of death was suicide, released the sheriffs office deputies that had also responded to the scene and took sole custody of the death scene._ Id. at 1l16 and 18. Dr. Varnau had Mr. Jones? body transported to a hospital. Id. 1l21. Dr. Varnau completed. her investigation and left the scene at approximately 3:45 am. Id. at 23. Plaintiffs are critical of the investigation that Dr. Vamau performed and assert that ?Dr. Varnau did no meaningful investigation at the scene.? Id. at ?ll7. In particular, Plaintiffs are critical that Dr. Varnau did not perform an autopsy on Mr. ones? body, did. not test the hands or 2 Case: Doc #2 10 Filed: 03/24/14 Page: 3 of 15 PAGEED 28 any other portion of Mr. Jones for gunshot residue, and did not collect evidence available at the death scene including portions of Mr. Jones? skull, a shotgun and a large knife stuck in the kitchen table. Id. at 1l22, 24 and 25. There are no allegations that Mr. Jones? residence was considered to be a crime scene or that Dr. Varnau retained custody of the death scene once Dr. Varnau?s investigation was complete. Indeed, the Plaintiffs admit that there was no crime scene tape at the residence when Plaintiff Donna Elgens and her sisters went to Mr. Jones? residence after learning of his death at approximately 4:30 am. Id. at ?l28?2_9. Upon arriving at the scene, Plaintiff Donna El gens found evidence that she asserts Dr. Varnau should have collected as part of her investigation, including pieces of Mr. Jones? skull. Id. at l. Plaintiff Elgens alleges that she called Dr. Varnau?s home on August 9, 2013 and spoke to Mr. Varnau. Id. at 1l35. Plaintiff Elgens alleges that Mr. Varnau complained about a feud between him, his wife and the county sheriff and that Mr. Varnau made an insensitive comment during the conversation. Id. at Plaintiff Elgens alleges that she met with Dr. Varnau at her office on August 15, 2013. Id. at $37. At that meeting Plaintiff Elgens inquired of Dr. Varnau as to What she should do with the pieces of Mr. Jones? skull. Id. at ii 38. Dr. Varnau suggested that she could plant a tree and bury the skull pieces near the tree. Id. at ?l39. Plaintiff Donna Elgens retrieved the portions of Mr. Jones? skull from his residence and made arrangements for Mr. Jones? body, and the portions of his skull, to be cremated. Id. at ?[40?4l. Plaintiff Donna Elgens alleges that she suffered severe anguish as a result of discovering the evidence at the scene of her brother?s death and as a result of her interactions with Dr. Varnau and her husband in the days following his death. Id. at 1l42. Plaintiff Angela Brown does not believe that her father committed suicide and is upset that Dr. Varnau did not conduct a more 3 Case: DOC #2 10 Filed: 03/24/14 Page: 4 of 15 PAGEED #1 29 thorough investigation into her father?s death. Id. at 152. Plaintiffs allege that the failure to Dr. Varnau and Mr. Varnau to conduct a more thorough investigation, including the collection of additional evidence, and the statements made by the Varnaus to Plaintiff Elgens following the death of Mr. Jones violated their due process rights and intentionally inflicted them with emotional distress. Id. ?l 65-66. Plaintiffs allege that the Varnaus acted. pursuant to a county policy in allegedly failing to conduct a more thorough investigation into Mr. Jones?s death. Id. at IILLAW AND ARGUMENT A. Plaintiffs? federal law claims fail as a matter of law. Plaintiffs h_ave asserted a ?1983 claim against Brown County. Section 1983 imposes liability for rights protected by the Constitution, not for violations of duties of care arising out of tort law. Baker v. 443 U.S. 137, 146 (1979). Similarly, violations of state law alone are not sufficient to state a ?l983 claim. Although official conduct may violate state law, it does not necessarily rise to the level of constitutional injury. Id. Municipalities and counties are ?persons? exposed to litigation under ?l983. Scott 12. Clay County, Term, 205 F. 3d 867, (6th Cir., 2000). However, a municipality cannot be held liable solely because it employs a tortfeaser. Monell v. Dept. of Social Services QfCity of New York, 436 U.S. 658, 691 (1978) (original emphasis). In other words, a municipality cannot be held liable under ?1983 on arespondeat superior theory. Id. Instead, a plaintiff may only hold a government entity liable under ?l983 where its official policy or custom actually serves to deprive an individual of his or her constitutional rights. Gregory v. City of Louisville, 444 F.3d 725, 752 (611 Cir., 2006). Case: Doc 10 Filed: 03/24/14 Page-: 5 of 15 PAGEED 30 Claims against municipalities, such as Brown County, challenging the municipality?s policies, procedures and training practices cannot stand if the plaintiffs constitutional rights were not violated. Wilson 12. Morgan, 477 F.3d 326, 340 (6th Cir., 2007). Indeed, the United States Supreme Court has held that ?if a person suffered no constitutional injury at the hands of the individual police officer, the fact that the departmental regulations might have authorized the [alleged constitutional violation] is quite beside the point.? City of Los Angeles v. Helfer, 475 U.S. 796, 799 (1986). Accordingly, the Sixth Circuit has held that an underlying deprivation of a constitutional right is a threshold prerequisite to municipal liability under ?l983. Weeks 12. Portage County Executive O?ices, 235 F. 3d 275, 279 (6th Cir., 2000), Napier v. _Madison County, KY, 238 F. 3d 739, 743 (6th Cir., 2001). Plaintiffs assert that the conduct of the Varnaus violated their right to due process as protected by the Fourteenth Amendment of the United States Constitution. The Fourteenth Amendment prohibits states from ?depriving any person of life, liberty or property without due process of law.? Howard 12. Grinage, 82 F. 3d 1343, 1349 (6th Cir., 1996). Plaintiffs? Complaint does not expressly state which component their claims arise under. The facts alleged in this complaint fail to state a claim under either procedural due process or substantive due process. 1. Plaintiffs have failed to state a claim for a Violation of procedural due process. A procedural due process limitation, unlike its substantive counterpart, does not require that the government refrain from making a substantive choice to infringe upon a person?s life, liberty or property interest, it simply requires that the government provide ?due process? before making such a decision. Howard, 82 F. 3d at 1349. In order to establish a procedural due The Due Process Clause has a procedural component and a substantive one.. Case: Doc 10 Filed: 03/24/14 Page: 6 of 15 PAGEID #1 31 process claim, plaintiffs must Show that 1) they had a life-, liberty, or property interest protected by the Due Process Clause, 2) they were deprived of this interest, and 3) the means for redress for property deprivations provided. by the state of Ohio fail to satisfy the requirements of procedural due process. Brorherron v. Zeveland, 923 F. 2d 477, 479 (6th Cir., 1991). Plaintiffs? procedural due process claim fails because they have not alleged a deprivation of a property interest protected by the Due Process Clause. While, the Sixth Circuit has held that next of kin do have a property interest to possess a relative?s body for the limited purpose of conducting a burial o.r other lawful disposition, .Br0thert0n, 923 F. 2d at 482, Plaintiffs have not alleged that they were deprived of this property interest. Indeed, Plaintiffs allege that they were able to have Mr. Jones? body, including the skull pieces found by Plaintiff Elgens, cremated. ECF 1., ?ll. As Plaintiffs have not alleged a deprivation of a property interest, any procedural due process claim must fail as a matter of law. 2. Plaintiffs have failed to state a claim for a violation of substantive due process. Unlike procedural due process, substantive d.ue process protects against ?certain government actions regardless of the fairness of the procedures used to implement them.? Range v. Douglas, 878 F. Supp. 2d 869, 877 (SD. Ohio, 2012), citing Daniels Wiiliams, 474 U.S. 327, 331 (1986). Substantive due process serves as a check on of?cia.l misconduct which infringes upon a fundamental right or as a limitation on official misconduct, which, although not infringing on a fundamental right, is so literally conscience shocking as to rise to the level of a substantive due process violation. Howard v. Griaage, 82 F. 3d 13433, 1349 (6th Cir., l996). Plaintiffs in this case have not alleged an infringement of a fundamental right. Indeed, the Sixth Circuit has already held that there is no fundamental right to know the true cause of a Case: 1:14?cv?O0l7l?MRB Doc 10 Filed: 03/24/14 Page: 7 of 15 PAGEID 32 loved one?s death through an autopsy or criminal investigation. Callihan v. Sudimack, 117 F. 3d 1420, 1997 WL 397212 (6th Cir., July 10, 1997). See also Mit'cheZZ v. McNeil, 487 F. 3d 374, 378 (6th Cir., 2007) (?nding that ?There is no statutory or common law right, much less a constitutional right, to an investigation?) Instead, Plaintiffs assert that the conduct of the Brown County Coroner and her husband during and following the investigation into Mr. Jones? death ?shocks the conscience? and rises to the level of a substantive due process violation. ECF 1, 1165. However, the factual allegations contained in the complaint do not meet this heavy burden. The standard for establishing that government officials violated an individual?s substantive due process rights is not an easy one to satisfy. Mitchell 12. .McNeil, 487 F. 3d 374, 376 (6th Cir., 2007). Concerned that the Due Process Clause of the Fourteenth Amendment not become a font of tort law to be superimposed u.pon Whatever systems may already be administered by the States, the Supreme Court has made it clear that mere negligence on the part of governments and their agents does not provide plaintiffs with a ticket to federal court to seek substantive due process relief. citing Paul v. Davis, 424 U.S. 693, 701 (1976). Instead, substantive due process has been limited to ?the right to be free from state intrusions into realms of personal privacy and bodily security through means so brutal, demeaning and harmful as literally to shock the conscience of a court or a trier of fact. Lillard v. Shelby Coumjz Bd. of Educ, 76 F. 34716, 725 Cir., 1996). To state a cognizable substantive due process claim, the plaintiff must allege conduct intended. to injure in some way unjustifiable by any government interest and that it is conscience shocking in nature. Eidson v. State of Tennessee Dept. of Children Services, 510 F. 3d 631, 635 (6th Cir., 2007). The facts alleged by Plaintiff in this case fail to satisfy either element of this 7 Case: DOC #2 10 Filed: 03/24/14 Page: 8 Of 15 PAGEID #2 33 claim. There are no allegations that Dr. and Mr. Varnau intended to injure the Plaintiffs and the allegations contained in the complaint do not rise to the level of shocking the conscience. Indeed, Plaintiffs? assertion that the Varnaus should have conducted a better investigation amounts to nothing more than allegations of negligence and are insufficient to state a substantive due process claim. A similar substantive due process claim was rejected the Sixth Circuit in Callihan v. Sudimack, 117 F. 3d 1420 (1997). In that case, the plaintiffs filed suit against the county coroner and county sheriff alleging that their right to substantive due process had been. violated by the county coroner?s failure to conduct an autopsy and the coroner and sheriffs failure to conduct a proper investigation into the death of their loved one. Speci?cally, the coroner determined that the decedent died from a self?induced drug and alcohol overdose, despite the fact that he had conducted blood tests and the blood tests did not support this conclusion. After obtaining the test results that undermined his conclusion, the coroner refused to perform an autopsy and the county sheriff declined to further investigate the incident? The Sixth Circuit affirmed the trial court?s decision to dismiss the plaintiff? claim, finding that ?the actions of the defendants, while disturbing, are not the type of brutal and inhurnane acts that have shocked the conscience of courts in the past.? Id. at The facts alleged in this case are even less egregious that those alleged in Callihan. In that case, the coroner actually had evidence that directly disputed his ?nding of the cause of death and, with full knowledge of that evidence, nonetheless determined that the death was self- induced. In this case Plaintiffs simply allege that the coroner should have collected additional evidence, should have conducted additional investigation and that, if she had, perhaps she would 2 The county sheriffs office later re-opened the investigation and it was determined that the decedent died of due to manual strangulation. 8 Case: Doc 10 Filed: 03/24/14 Page: 9 of 15 PAGEID 34 have arrived at a different conclusion regarding Mr. Jones? death. As stated previously, these allegations amount to nothing more than claims of negligence. The constitution does not require a perfect investigation into alleged criminal activity and the conducted alleged in the complaint does not rise to the level of conscience shocking. The Southern District of Ohio has consistently required a much higher level of culpability in order to find that a defendants? conduct ?shocks the conscience? when it relates to the handling of corpses and death investigations. For example in Culberson v. Dorm, 125 F. Supp. 2d 252, 271-272 (S.D. Ohio, 2000), the court denied summary judgment for the defendant police chief on a substantive due process claim after ?nding that his actions in failing to preserve a crime scene and permitting the decedent?s dead body to be removed by her murderer could be deemed to be conscience shocking. In that case, the evidence demonstrated that the police chief had knowledge of a history of abuse of the decedent by her boyfriend prior to her disappearance. The decedent?s mother contacted the police and informed them that the decedent had disappeared. During that conversation the mother the police that the boyfriend had abused the decedent in the past. Several days later the police chief and several other law enforcement officers performed a search on private property owned by a known friend of the boyfriend suspected murderer. During the search a cadaver dog alerted at a pond, indicating that the dog may have detected the decedent?s scent. The police chief did not order the pond to be drained that day and further did not guard the pond as a crime scene. Instead, the pond remained unguarded for nearly 24 hours. When the pond was drained the next day, footprints were visible on the bottom of the pond, and a muddy path of weeds led. away from the pond, which indicated that something or someone was recently removed. from the pond, or that someone had recently entered the pond. The court held 9 Case: DOC #1 10 Filed: 03/24/14 Page: 10 Of 15 PAGEID #2 35 that the plaintiffs had. produced evidence to demonstrate that the police chief knew that the decedent?s body was in the pond on the day of the search, that the decedent?s body was on located on property belonging to friends and potential accomplices to the murderer and that, by leaving the pond unguarded for 24 hours, the chief essentially returned her body to her murderer and that a jury could determine that this conduct shocked the conscience. The alleged conduct of Dr. Varnau and her husband clearly does not rise to this level. Indeed, the driving force behind. the court?s decision in Doan was the fact that the decedent?s family was denied the opportunity to recover her body. There is no question in this case that the Plaintiff? were able to recover Mr. Jones? body in its entirety and dispose of it in a manner that they deemed to be appropriate. The defendants? conduct in Barrett Outlet Broadcasting, Inc, 22 F. Supp. 2d 726 (SD. Ohio, 1997), was also found to be conscience shocking. In that case, police officers perrnitted a local television new crew to accompany the police officers as they performed their duties. The news crew was creating a segment intended to tie in with the premiere of the television series ?Homicide: Life on the Streets.? The purpose of the segment was to show real situations and what the officers really saw, including bodies. During the ride?along the police received a call related to the suicide of the plaintiffs? relative and the news crew was permitted to respond to the call along with the police. Evidence produced during discovery demonstrated that the news crew not only videotaped the death scene, but also disturbed her corpse and objects in the decedent?s bedroom in order to portray that the suicide had actually been a homicide. The news station broadcasted the footage of Ms. Srnith?s death scene as part. of a special segment that aired after the Superbowl. The Court held. that a jury could find that the Defendants? actions of disturbing the corpse and altering her room for their video shocked the conscience and, therefore, denied 10 Case: D00 #2 10 Filed: 03/24/14 Page: 11 of15 PAGEED 36 summary judgment. Id. see also Range 12. Douglas, 878 F. Supp. 2d 869 (SD. Ohio, 2012) (act of having sex with dead body is certainly shock_ing conduct.) In stark contrast to the facts in Range, Doan and Barrett, there are no allegations that Dr. or Mr. Varnau mishandled or abused Mr. ones?s corpse. The Plaintiffs have simply alleged that Dr. and Mr. Varnau did not conduct as thorough an investigation as they could have and that additional investigatory steps should have been taken in determining the cause and manner of his death. As the Sixth Circuit held in Caiiban, those allegations do not shock the conscience and do not give rise to a substantive due process claim. As the Plaintiffs have failed to allege an underlying violation of their constitutional rights, their ?l983 claim against Brown County should be dismissed with prejudice. B. Piaintiffs state law intentional infiiction of emotional distress claim fails as a matter of law. 1. Brown County is immune from Plaintiff? intentional tort claim under Chapter 2744 of the Ohio Revised Code. Under Ohio law, counties, like Brown County, are considered to be political subdivisions. R.C. ?2744.0l. Chapter 2744 of the Ohio Revised Code, the Political Subdivision Tort Liability Act, grants immunity to political subdivisions. Theobald v. Board of County Com ?rs of Hamilton County, Ohio, 332 F.3d 414, 416 (6th Ciiz, 2003). The political subdivision immunity analysis begins with the understanding that political subdivisions are not liable generally for injury or death to persons in connection with the political subdivision?s performance of a governmental or proprietary function. Howard 12. Miami? Twp. Fire Div. (2008), 119 Ohio St.3d 1, 3, citing R.C. ?2744.02 This general grant of immunity is subject to five very narrow exceptions. See R.C. These exceptions all relate to negligent conduct and do not apply to intentional ll Case: DOC #2 10 Filed: 03/24/14 Page: 12 Of 15 PAGEID 37 torts. The Ohio Supreme Court has held that political subdivisions, like Brown County, are immune from intentional tort claims, including the tort of intentional infliction of emotional distress. See Huliliard 12. Canton izjv School Bal. 0fEdn., 97 Ohio St. 3d 451, 453 (Ohio, 2002); Wilson v. Stark Ciy. Dept. ofHaman Serv., 70 Ohio St. 3d. 450, 452 (Ohio, 1994). Brown County is immune from Plaintiffs intentional infliction of emotional distress claim and this claim should be dismissed as a matter of law. 2. Plaintiff has failed to allege facts sufficient to plausibly state a claim for intentional in?iction of emotional distress. Under Ohio law ?One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional. distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.? Yeager v. Local Union 20 Teamsters, 6 Ohio St. 3d 369, 374 (Ohio, 1983) (overruled on unrelated grounds). A defendant can only be held liable for intentional infliction of emotional distress when the conduct at issue is ?so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.? Yeager 12. Local Union 20 Teamsters (1983), 6 Ohio St. 3d 369. It is not enough that a defendant has acted with an intent to commit a tort, a criminal act or to inflict emotional distress, or even that a defendant?s conduct has been characterized by malice or a degree of aggravation that would entitle the plaintiff to punitive damages for another tort. Rater, a plaintiff must be able to show devastating injury as a consequence of intentional conduct so repugnant that it shocks the conscience. Id. Liability under this cause of action ?clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions and other trivialities.? The Ohio Supreme Court noted 12 Case: Doc 10 Filed: 03/24/14 Page: 13 of 15 PAGEED 38 that ?There is no occasion for the law to intervene in every case where someone?s feelings are hurt. There must still be freedom to express an un?attering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam.? Id. Indeed, court have found that conduct that is merely cruel or insensitive does not reach the threshold of the sort of extreme and outrageous conduct that is necessary to establish a claim of intentional in?iction of emotional distress under Ohio law. Hunt V. ity of Toledo Law Dept, 881 F. Supp. 2d 854 (N.R. Ohio, 2012). This brief has already demonstrated that the conduct alleged in the Plaintiffs complaint does not rise to the level of conscience shocking. Plaintiffs allege that Dr. and Mr. Vamau could have conducted a more thorough investigation and that Dr. and Mr. Varnau were rude to Plaintiff Elgens on two occasions. These allegations are not extreme and outrageous and do not give rise to a claim for intentional in?iction of emotional distress. IV. CONCLUSIGN For these reasons, Plaintiffs Complaint fails to state a claim upon which relief can be granted and all claims against Brown County should be dismissed with prejudice. Respectfully submitted, MAZANEC, RASKIN RYDER CO., L.P.A. S/Cam TODD M. RASKIN (0003625) CARA M. WRIGHT (0084583) 100 Franl(lin?s Row 34305 Solon Road Cleveland, OH 44139 (440) 248-7906 (440) 248-8861 Fax Email: 13 Case: Doc 10 Filed: 03/24/14 Page: 14 of 15 PAGEID 39 Counsel for Defendant Brown County, Ohio/Brown County Ohio Commissioners Case: Doc 10 Filed: 03/24/14 Page: 15 of 15 PAGEID 40 CERTIFECATE SF SERVICE I hereby certify that on March 24, 2014, a copy of the foregoing Brown County's Motion to Dismiss was ?led electronically. Notice of this ?ling will be sent to all registered parties by operation of the Court?s electronic ?ling system. Parties may access this ?ling through the Coutt?s system. S/Cara Wright TODD M. RASKIN (0003625) CARA M. WRIGHT (0084583) Counsel for Defendant Brown County, Ohio/Brown County Ohio Commissioners 1 40 06 County MTD 15 Case: Doc 13 Filed: 04/25/14 Page: 3 of 22 PAGEID 61 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION DONNA ELFERS, er al. Case No. l:l4?cv?l7l Plaintiffs, Hon. Michael R. Barrett V. MEMORANDUM IN SUPPORT OF DEFENDANTS JUDITH AND DENNIS JUDITH A. VARNAU, er al. - MOTION TO Defendants. INTRODUCTION Plaintiffs allege Violations of their civil rights and in?iction of emotional distress arising out of conduct by Brown County Coroner Dr. Judith Varnau, and her husband Dennis Varnau. These allegations arose in the aftermath of the death of Plaintiffs? family member, Hanson Jones. Plaintiffs? allegations, even if Viewed as true for pulposes of this motion, fail to state a claim. ALLEGATIONS Co?Defendants Brown County Commissioners have already submitted their own motion to dismiss that recites the factual allegations. (Doc. 10, pp. 2-4.) These are incorporated by reference. At its essence, Plaintiffs allege causes of action arising out of: (1) The Varnaus?1 alleged disrespect of human remains and family members of decedents (Complaint, and (2) Allowing an alleged political feud to undennine proper investigation of deaths, including the Hanson Jones death, by failing to take custody of firearms, provide for their testing, or coordinate with the sheriff at death scenes to ensure a thorough review is accomplished (Complaint, 57-60). Plaintiffs allege Dr. Varnau, as the policymaker for the County, was the moving force behind Plaintiffs? injuries. (Complaint, ll 61.) These allegations fail as a matter of law. 1 Dr. Varnau is the coroner of Brown County (Cornplaint, 7), but Plaintiffs allege she has delegated duties to Dennis Varnau to investigate death scenes, determine which body parts to retrieve and abandon, to speak for the coroner, and otherwise jointiy participate in the work of the office. (Complaint, 1] 56.) This allegation, while contested, is presumed true for purposes of this motion. Case: DOC #2 13 Filed: 04/25/14 Page: 4 Of 22 PAGEID 62 ANALYSIS 1. THE BROWN COUNTY CORONER HAS A LIMITED AMOUNT OF AUTHORITY ANB RESPONSIBILITY UNDER OI-HO LAW. The Plaintiffs accuse Dr. Varnau; in her capacity as the Brown County Coroner; and her husband; Dennis Varnau; of engaging in rnisfeasance; malfeasance, and/or nonfeasance in conducting the duties of that oftice. Their allegations include that the Varnaus abandoned body parts; abandoned evidence; left death scenes unsecure; disrespected Jones?s body; showed disrespect to J'ones?s loved ones; that Dennis Varnau was present at the death scene; and that they prevented an investigation into Jones?s death. (Complaint; See also Doc. 12; pp. 6, 8, 9.) Therefore; this Court would benefit from a review of the limited nature of that of?ce?s limited authority and~??by extension?its limited responsibility under both state and federal law. ?As a creature of statute; a county coroner may exercise only the authority explicitly granted to him by statute or as may be necessarily i_m_plied in order to accomplish the exercise of an express power. . . .A primary duty of a county coroner is to determine the cause of death of any person who has died in the manner described in RC 313.12.? Ohio Attorney General (OAG) Opinion 2012-21. A. County coroners have limited jurisdiction over a limited scene. A county coroner?s jurisdiction is only invoked when a person dies"; or appears to die, as the result of unnatural. causes: by criminal or other violent means; by casualty; by suicide; in any suspicious or unusual manner; or when the person was in apparent good health or developmentally disabled at the time of death. Ohio Revised Code 313.12. A coroner?s jurisdiction is limited in time; Scope; and method: 1. County coroners have jurisdiction for a limited time. Case: Doc 13 Filed: 04/25/14 Page: 5 of 22 PAGEID 63 Upon obtaining notice of her authority to act, a coroner must ?go to the dead body and take charge of it.? ORC This is for the limited purpose of determining the manner, mode, and cause of death. ORC 313.19. This jurisdiction only remains in effect ?until such time as the decided that it is no longer necessary to hold such body to enable him to decide on a diagnosis giving a reasonable and tru.e cause of death, or to decide that such body is no longer necessary to assist [the prosecutor or law enforcement] in [their] duties. ORC 313.15. As soon as the coroner makes this determination, her jurisdiction ends. Id. 2. County Coroners have jurisdiction that is limited in scope. The coroner?s domain is limited to the decedent?s body or remains, and whatever limited space near the body is necessary, within the coroner?s discretion, to investigate the manner, mode, and cause of death. OAG 88-035; 80-091. She does not have jurisdiction over an entire home or an entire crime scene (or area surrounding a death that could potentially be a crime scene)?rather, she merely has jurisdiction over whatever limited space near the body is necessary to determine the manner, mode, and cause of death. 3. The methods by which County coroners can conduct their investigations are likewise limited. To determine the cause of death, the coroner can take charge over a dead body, perform autopsies, gather information at the death scene,? and interview subpoena witnesses. OAG 2012~21, citing ORC 313.11; 313.121?131; RC 313.17. These are the extent oftasks the coroner is permitted to do in investigating a death: The coroner is not permitted to engage in any activities that exceed these investigative tasks. OAG 88-035 (1988); See also ORC 313.19. Further, the coroner has discretion to determine which of these investigative tasks are necessarywand are not necessary?to find the cause, manner, and mode of death. Franklin v. Schroer, 1982 Ohio App. LEXIS 15325. Put another way, the coroner could decide to use all of Case: Doc 13 Filed: 04/25/14 Page: 6 of 22 PAGEID 64 these investigative techniques ar1d?~as in this casemshe has the discretion to determine that only some of these techniques are necessary to arrive at her determination. 4. Beyond these limited powers, the coroner has oniy a few discrete, ministerial powers. Beyond the powers expressly _prescribed by statute, the coroner has no other powers. The powers outlined in parts have been deemed quasi?judicial, whereas the remaining discrete powers are ministerial. As noted in part I.A.3., the coroner has absolute discretion in performing her quasi-judicial -functions; however, she has no discretion in performing the ministerial functions:' A coroner [can] exercise only such powers and jurisdiction as provided by statute and his duties [are] largely ministerial with certain of his duties being, in a limited sense, performing those duties which are ministerial, a coroner must perform [those duties] without regard to his own judgment and without discretion. Thus, by implication, those duties which are quasi~judicial, the coroner is Vested with discretion. 1017., citing Harrison v. Perry, ll3 Ohio St. 641 (1925). Coroners do not have authority to apply law to facts; or to determine what statutes have been violated. OAG 69-036. In other words"- they determine what killed the decedent (cause) and, to the extent it presents a separate question, how the decedent died (mode), and they determine whether the death was natural, accidental, suicide, homicide, or otherwise (manner). But they are not responsible for determining who killed decedent, and they lack authority to investigate this issue. Once the Coroner?s primary function has been fulf1lled?determining manner, mode, and cause of death?her jurisdiction over the body ends. Her only other functions are largely ministerial: She must generate records that detail every deceased person in their County and that indiVidual?s cause of death. ORC 313.09. She must make reasonable efforts to identify the identities of bodies or remains under ORC however, she may only exercise this Case: Doc 13 Filed: 04/25/14 Page: 7 of 22 PAGEID 65 jurisdiction if the deceased is unknown or unclaimed. OAG 73-123. Absent statutory authority that expressly or impliedly authorizes her to engage in behavior, she lacks discretion to do so. OAG 06-036 (holding county coroners may not retain an expert witness fee for th_e coroner?s testimony in a civil proceeding because the law does not permit it). 5. Limited power means limited The ?ip side of this limited responsibility and limited power is also limited liability: Absent bad faith or corrupt motive, a county coroner is protected by immunity from civil liability for the alleged mishandling of a death investigation where the acts complained of are quasi- judicial or discretionary by nature. Owens v. Anderson, 39 Ohio App.3d 196 (1987). The coroner?s investigation of a suspicious death and her ?ndings based upon. such. an investigation are quasi?j udicial in character. Id. They are therefore protected by immunity. 3. County coroncrs? pronouncements regarding the cause, manner, and mode of death are subject to state court review. Typically, a coroner?s detennination of the cause, manner, and mode of death. is dispositive: It is delivered by the coroner and incorporated into the coroner?s verdict and death certi?cate, then ?led with the division of Vital statistics. ORC 313.19. In this vein, the coroner?s pronouncement is ordinarily the legally accepted cause, manner, and mode of death. Id. However, should an individual or entity wish to challenge the coroner?s determination, the appropriate mechanism for doing so under Ohio law is to ?le an action for declaratory judgment. Girl?: v. Raajf 1995 Ohio App. LEXISX 1862 (Sm Dist. 1995); Hirus v. Balraj, 1994 Ohio App. LEXIS 4 (8th Dist. 1994). If an individual ?les a declaratory challenge, the Court of Common Pleas holds a hearing and, if the petitioner demonstrates by a preponderance of the evidence that the coroner?s determination was incorrect, the Court directs the coroner to change his or her decision. ORC 313.19; Estate of Seven? 12. Wood, 107 Ohio App.3d 123 (1995). Case: Doc 13 Filed: 04/25/14 Page: 8 of 22 66 Notably, anyone who wishes to challenge the coroner?s determination may do so?the statute does not limit who has standing to challenge a cause of death. Taser Inf}, Inc. 12. Chief Med. Exam 2009 Ohio App. LEXIS 1334, 2009?Ohio?15l9 (?nding the manufacturer of a TASER device had standing to challenge a coroner?s determination that an indi_vidual died from the use of the device); LeFever v. Licking County Coroner ?s Officer, 2006 Ohio App. LEXIS 6729, 2006?Ohio-6795 (?nding a decedenfs stepdaughter had standing to challenge the c0roner?s determination of her stepfather?s cause of death). C. County coroners have limited and prescribed conduct regarding ?rearms. Coroners must take certain prescribed actions with respect to ?rearms they encounter at the scene of a death--all of which are contingent upon the circumstances. See, RC 3l3.l4,.l4l, and .22; OAG 99-035; OAG 01-010. Following a death in which the coroner has determined the decedent committed suicide (RC 313.12), she is arguably obligated under ORC 313.141 to deliver the ?rearm to the law enforcement agency within whose jurisdiction it resides; an alternative interpretation of Chapter 313 is that she is obligated to return it to the executor or administrator of the decedent?s estate. OAG 01-10; Farley v. Kyriakides, 7 Ohio App.3d 284 (1982). If the former is true, the law enforcement officials at the scene of the Jones death would have been permitted, if not obligated, to remove the firearm upon Dr. Varnau?s release or, at latest, determination of suicide (when her jurisdiction would end).2 If the latter is true, the firearm was properly wi?i Mr. Jones?s surviving spouse, Barbara Jean (Jolly) J'ones.3 2 In any event, Plaintiffs alleged that, when they attempted to take the gun to the sheriffs of?ce, the sheriff refused to accept it. (Complaint, 34.) 3 Ms. Jones is identi?ed as Jones?s surviving spouse on the death certi?cate, and her address is listed to be the same as Mr. Jones?s address. To the extent Dr. Varnau had any obligation to transfer Mr. Jones?s ?rearm to anyone at all, it would have been Ms. Jones. Because Ms. Jones is listed on the death certi?cate as having the same address, the ?rearm could be properly left at the shared residence of the Joneses. Case: Doc 13 Filed: 04/25/14 Page: 9 of 22 PAGEID 67 (See Exhibit A.4) In neither event would either of the Plaintiffs be the proper recipient of the ?rearm, nor would they be lawfully permitted to enter the home of the decedent (where the ?rearm was located) without the authorization of his next of kin. See part in?a. D. County coroners have no responsibility over crime or suicide scene cleanup. The Varnaus are accused of not collecting every particle of Jones?s remains from the location where he died of a shotgun wound to the head. However, there is no law suggesting this is the coroner?s obligation. As a practical matter, it is impossible in many death scenes to do so. It is likely for this very reason that an entire body of federal regulatory authority exists to govern the protocol that private biohazardous c1ean?up companies must employ following a homicide or suicide death scene. See OSHA 29 CFR 1910.1030. Ohio law makes clear that the responsibility for gathering every piece of biological matter left at a death scene does not fall upon the coroner in any event: In Ohio, as in every other state, the coroner is merely responsible toidetermine the cause, manner, and mode of the death (ORC 313.19), and then her jurisdiction over the body ends. ORC 313.15. The property owner/family is then responsible to clean up after the death. They may utilize private third party biohazardous clean?up companies??~which are governed by the OSHA regulations noted above?or they may choose not to pay a third party company and conduct the clean?up themselves. See, Ohio Revised Code provides reparations to families of crime victims, which includes the ?cost of crime scene cleanup.? See also Aftermath, 4 Exhibit certified copy of Mr. Jones?s death certi?cate?is self?authenticating under Fed. R. Civ. P. 402(4), and it may be appropriately judicially noticed in a Rule 12 motion without converting it to one for summary judgment. Back v. Court of Common Pleas, Butler County, Ohio 2010 U.S. Dist. LEXIS 92853 (SD. Ohio No. In addition, as Dr. Vamau?s determination and entry of the cause death as a suicide (which only occurs in the death certificate) was referred to in 16, 18 of the Complaint but not attached to the Complaint, the Varnaus may introduce this document as part of their motion attacking the pleading without converting it to one for summary judgment. Thomas 12. Publrs. Clearing House, 28 Fed. Appx. 319, 8 (6?h Cir. 2002). It may be considered for all purposes under Fed. R. Civ. P. 1003). Case: Doc #1 13 Filed: 04/25/14 Page: 10 of 22 PAGEID 68 Inc. v. Buffirrgtorr, 20l0?Ohio?l9, W69 (10th Dist)(citing biological cleanup contract dispute with family member of decedent; contract advised that the company specialized in ?crime scene and tragedy cleanup,? and that some homeowners or business insurance policies cover their services, but the bill would be sent to the family and the responsibility remained with the family to either obtain reimbursement from the insurance coverage or pay for the cleanup themselves); In re: Dembie, 20l2?0hio?485l, 2012 Ohio Misc. LEXIS 133 (Ohio Court of Claims) - (reimbursing the petitioner for the cleaning supplies she purchased to clean up her family member?s homicide scene herself; noting the labor costs would have been reimbursable if she had hired a third party to perform the Work, even if it was not a professional crime scene cleaning technician.) Clearly, if this were a function under the coroner?s domain, there would be no reimbursement costs awarded to those individuals to make reparations; further, ?there would not be discussion in the case law about family members or property owners cleaning the scenes themselves, outsourcing the work to professional crime scene cleaning technicians, or outsourcing it to others. In some instances, homeowners insurance will provide coverage for the clean?up as Well. See, e. Weismarz v. Green Tree Ins. Co., 447 Pa.Super. 549 (1996)(f1nding after appel1ant?s tenant committed suicide with a shotgun, the landlord?s insurance covered the costs of the cleanup, repairs to property, and lost rent). 11. PLAINTIFFS HAVE NGT STATED A CLAIM UNDER 42 USC 1983. A. This Court must abstain from Plaintiffs? claims. The United States Supreme Court has endorsed showing appropriate cornity and a ?scrupulous regard for the rightful independence of state governments?? Railroad of Texas v. Pullman, 312 U.S. 496, 500-501 (1941) (quoting Cavarzaugh v. Locmey, 248 U.S. 453, 457 (1919)). Pullman abstention is built upon the traditional avoidance of unnecessary Case: Doc 13 Filed: 04/25/14 Page: 11 of 22 PAGEID 69 constitutional decisions and the sovereign respect due to state courts. Id. It requires a federal court, faced with a constitutional challenge (or putative constitutional challenge) to a state law (or, in this case, a state ruling), to defer the constitutional question and avoid a direct confrontation if a decision from the state court ?might avoid in whole or in part the necessity for federal constitutional adjudication, or at least materially change the nature of the problem.? Harrison v. NAACP, 360 U.S. 167, 177 (l959).5 In addition, if anyone believes the coroner is about to abuse his or her discretion, a court of equity has jurisdiction to issue an injunction. State ex rel. Harrison, v. Perry, 113 Ohio St. 641 (1925). This provides an adequate remedy at law, such that the Supreme Court will not grant an extraordinary writ, given the existence of this adequate remedy. Id. (father sought to prevent disinterment of his son?s body by the coroner by seeking a writ of prohibition; Supreme Court ruled an action for injunction in equity court was the proper remedy). Here, deferring to the State court process obviates the need for this Court?s intervention. As noted in part an adequate remedy exists under State law: Rather than bring a federal civil rights action to challenge the alleged inadequacy of Dr. Varnau?s investigation, they could have brought (or still could bring?) a state declaratory judgment action under ORC 313.19, to challenge it. Styling their challenge as a civil rights proceeding does not change the fundamental nature of what they are trying to do??bypass the State court procedure. The Ohio legislature set forth a specific procedure to ensure adequate due process is afforded anyone who might question a coroner?s determination. That procedure was not utilized 5 This matter is arguably also prohibited by Colorado River abstention, 424 U.S. 800 proceedings that should be deferred. to state proceedings); Burford abstention, 319 U.S. 315 (1943)(barriI1g federal review of complex issues of state law); and Younger abstention, 401 U.S. 37 (precluding proceedings that implicate important state interests). 6 Plaintiffs allege Mr. ones?s body was cremated (Complaint, ?ll 41); however, other investigative efforts could still be pursued if a state court issued a declaratory judgment finding a preponderance of the evidence suggested his death was 11ot a suicide. Case: DOC 13 Filed: 04/25/14 Page: 12 Of 22 PAGEID 70 by Plaintiffs or anyone else before Plaintiffs elected to bring suit here. Litigants may not seek civil rights recovery for challenges they could resolve through the State court system. For this reason, Plaintiffs? claims challenging the coroner?s investigation and ?ndings must be dismissed. B. Plaintiffs have not stated a claim against Dennis Varnatl. Plaintiffs allege Dennis Varnau generally (1) investigated death scenes; (2) determined which body parts to retrieve and abandon; (3) spoke for the coroner to witnesses and family members of deceased; an_d (4) jointly participated in the coroner?s work. (Coniplaint; 1[5 6.) However, the only two matters they speci?cally accuse Dennis Varnau of doing in this case were (1) leaving the Jones scene without collecting all fragments of skull; and (2) speaking with Plaintiff Elfers when she called the Varnau home. (Complaint, 22, 35-36.) Even if we accept Plaintiffs? allegation as true that Dennis Varnau?-who is not the coroner?had any obligation to perform any work of the co1'oner?s office; there is no authority to suggest the coroner or anyone from her office had an obligation to collect all biological material left behind at the scene. See part I.D. As noted above; this is not the responsibility of the Coroner or her designees, but of the next of kin. Plaintiffs? only other allegation against Dennis Varnau was that he spoke with her and made comments that ?everybody loses someone every? day,? that upset her when she called him at his home.7 (Complaint; ii 35.) First; it?s unclear how these comments could ever be tied to official State action; even if we take Plaintiffs? allegations as true that Dennis Varnau was authorized to act on the coroner?s behalf. Second, this allegation fails to meet the ?conscience shocking? standard discussed in part in?a. 7 This Court may take judicial notice that the Brown County Coroneris Website lists the Vamaus? residential address and phone number as the only available contact information, and states, ?The coroner has no specific office.? See Fed . R. Evid. 20l(b)(2); Winkie v. Ruggferi, 2013 U.S. Dist LEXIS 40213 n.2 (S.D. Ohio 20l3)(judicial1y noticing a public website.) 10 Case: Doc 13 Filed: 04/25/14 Page: 13 of 22 PAGEED 71 C. Plaintiffs have not stated any viable civil rights claims against either of the Varnaus. Even assuming Dennis Varnau is a proper defendant for purposes of Rule 12, Plaintiffs? claims fail to state a cause of action as a matter of law against any defendant. Plaintiffs? first claim is for a violation of due process under the Fourteenth Amendment. To state such a claim, Plaintiffs must demonstrate (1) State action; that (2) deprives an individual of federal statutory or constitutional rights. Range v. Douglas, 878 F.Supp.2d 869, 876 (S.D. Flint 12. Kentucky Dep?t of Corr., 270 F.3d 340, 351 (6th Cir. 2001)). It is unclear whether Plaintiffs are alleging a substantive or procedural due process claim; however, because they allege Defendants? actions ?shock the conscience? (Complaint, 1] 65), they are presumably alleging a violation of substantive due process. Regardless, their allegations fail to state a claim for either substantive or procedural due process. 1.. Plaintiffs have not stated a viable claim of substantive due process vielations. The substantive component of the due process clause is only violated when the defendant?s behavior is ?arbitrary, or conscience shocking, in a constitutional sense.? County of Sacramento 12. Lewis, 523 U.S. 833, 837 (1998). This is markedly different from merely alleging _?someone cloaked with state authority causes harm.? The Sixth Circuit has noted that substantive due process affords individuals ?the right to be free from state intrusions into realms of personal privacy and bodily security through means so brutal, demeaning, and harmful as literally to shock the conscience of a court. Barrett v. Outlet Broadcasting, 22 F.Supp. 726 (S.D. Ohio 1997). See also Brown County Commissioners? Motion to Dismiss (Doc. 10), pp. 8-10 discussion of Callihan and Culbersorz, incorporated here by reference. Such examples of the conduct necessary to shock the conscience include: 11 Case: Doc 13 Filed: 04/25/14 Page: 14 of 22 PAGEED 72 9 Allowing reporters ?unrestricted access? to ?lm a murder/suicide; to manipulate the scene for further footage; and then run the footage on television and cornrnercial promotions. Barrett, 22 F.Supp. at 730-733. 6 Allowing a photographer to take ?artistic? pictures of bodies in the Coroner?s custody without the family members? knowledge or authorization. Chesher v. Neyer, 477 F.3d 734, 787 (eh Cir. 2007) a Failing to guard or otherwise treat a pond as a crime scene for 24 hours after a cadaver dog led law enforcement to that area in the search for a missing person. After the pond was drained, law enforcement obtained evidence that someone had potentially removed the body during that timeframe, ?essentially [returning] her body to her murderer.? Culberson v. Doan, 125 F.Supp.2d 252, 271-72 (S.D. Ohio 2000) The Court has found it did not shock the conscience or violate substantive due process to: 6 While a morgue assista11t?s conduct of having sex with the bodies in the Coroner?s custody shocked the conscience, it did not shock the conscience for the coroner to employ that morgue assistant who, unbeknownst to him, was engaging in this activity. Range, 878 F.Supp.2d at 880-881. The distinction in these cases amounted to whether the state actor was knowingly disrespecting a decedent?s remains, and doing so to such. a degree that it shocks the conscience. Even those episodes that shock the conscience that are not deliberatemsuch as unwittingly allowing an employee to have sex with bodies in the Coroner?s custody?do not state a claim because: ?The key difference between Chesher and Barrett and [Range] is that in Chesher and Barrett, there was evidence. . that the officials knew that the conscience?Shocking conduct was occurring. [In Range] there is no evidence [defendants] knew [their employee] was having sex with the dead bodies. Range, 878 F.Supp. at 880. a. The Varnaus? failure to collect all bielogicai material from the scene does not shock the conscience. By contrast to the cases above, the Varnaus are accused of not collecting every particle of Jones?s remains from the location where he died of a shotgun wound to the head. However, there is absolutely no law suggesting this is the coroner?s ob1igation??a11d this is because it is not 12 Case: Doc 13 Filed: 04/25/14 Page: 15 of 22 PAGEID 73 the coroner?s domain. In the entire Revised Code Chapter 313 that painstakingly details the responsibilities, obligations, and limitations of the coroner?s role, there is nothing indicating that the coroner has responsibility to clean death scenes. the contrary, an entire body of federal regulatory authority and State law exists to place this responsibility squarely with the property owner/decedent?s next of kin or their agents. See part l.D. b. The Plaintiffs? discovery of a disturbing scene?after letting themselves into a residence shortly after a s1iicide??~d0es not shock the conscience. In addition, Plaintiffs suggest they can state a claim against defendants because they entered Jones?s home and found a scene that disturbed them? (Complaint, ?t 53.) Notably, Plaintiffs do not allege they were Jones?s next of kin or that they had any right to lawfully enter his home following his death. This Court may judicially notice the public records that demonstrate that this right belonged only to his Widow, who is not a plaintiff. See Exhibit A. Because Plaintiffs were not .lones?s estate?s administrator or executor, they had no legal right to enter his premises, even if those premises were unlocked, temporarily unoccupied, or empty. See ORC 2911.21 (criminal trespass?prohibiting a person from knowingly entering the residence of another); 2913.01 (prohibiting a person from entering the residencefor the purpose of engaging in criminal trespass); State 12. Scott, 1992 Ohio App. LEXIS 4294, citing State v. Lane, 50 Ohio App.2d 41 that entering a residence through an unlocked door amounts to an unlawful breaking and entering/trespass). A coroner, who has an obligation of notice to the decedenfs next of kin, would logically forewarn him or her about the scene they might expect to find if they choose to enter the home where a suicide was recently committed; the availability of biological cleanup companies that could dispose of the evidence of this suicide; and other emotional and practical preparations for 13 Case: DOC 13 Filed: 04/25/14 Page: 16 Of 22 PAGEID #1 74 winding up a decedent?s affairs. However, the coroner is under no obligation to?and could not practicallye--have this discussion with any and every family member of a decedent, nor would it be reasonable for her to believe that these family members would enter the decedent?s home without the authorization of the next of kin. It therefore fails to shock the conscience that Plaintiffs, as these family members to whom the coroner or the administrator would have had no obligation or knowledge to forewarn?would discover a scene they had no right to encounter. In any event, the case law discusses how Defendants? conduct must shock the conscience. The fact Plaintiffs elected to let themselves into a authorizatior1?and discover a disturbing scene they had no legal right to encounter does not constitute behavior of the Defendants. The defendants did not instruct or allow these Plaintiffs to enter the Jones residence and encounter the scene they did. Finally, Plaintiffs allege they learned Jones died of a shotgun wound. to the head (Complaint, ii 11); that they learned this at approximately 1:30 a.m. (ii 26); that they went to his home at approximately 4:30 a.m. (ii 28); and entered his home without a l{ey?approXimately three hours after they learned he had shot himself in the head in that home and shortly after the coroner left. (Complaint, 23, 26, 29.) Plaintiffs allege there was no crime scene tape, which is logical following the coroner"s determination that ones?s death was a suicide. Even if the responsibility for scene cleanup had belonged to some public official who had been immediately dispatched to remove all debris and remains from the scene, it de?es logic to believe Plaintiffs would have anticipated anyone could have removed all traces of a gunshot wound to the head by this time. This simply fails to shock the conscience. c. A Plaintiff experiencing dissatisfaction with a coroner?s investigation or disagreeing with her results fails to shock the conscience. 14 Case: DOC #2 13 Filed: 04/25/14 Page: 17 of 22 PAGEID #2 75 Plaintiffs further allege the fact they were dissatis?ed with the Coroner?s investigation or disagreed with her results (Complaint, ii 52); and that they couldn?t believe their loved one committed suicide shocks the conscience (Complaint, 46-53). As noted in the previous section, this fails to amount to any behavior of Defendants that could shock the conscience of the Court; rather, this is merely the Plaintiffs? is not the standard in determining Whether the Defendants? behavior shocked the conscience. In their opposition to the County?s motion. to dismiss, Plaintiffs also allege the Varnaus somehow prevented an investigation into Jones?s death. (Doc. 12, pp. 9-10.) As explained in Part while a coroner?s findings regarding the cause of death are deemed final, this is only the case unless and until sorneone?anyone who cares a challenge under ORC 313.19 to seek a cou1?t?s review of the coroner?s ?ndings. A coroner?s ?ndings of suicide could never prevent law enforcement from investigating a death that it believes was not a suicide. Further, law enforcement, ones?s family .members, or any interested party could challenge the coroner?s determination at any tirnewbut it is undisputed that no one did. Attempting to bypass that state court procedure by styling their grievances as a civil rights violation is improper. Beyond this, family members are not constitutionally entitled to an autopsy or criminal investigation at all (Callihcm v. Sudimack, 117 F.3d 1420 (6th Cir. 1997)?, Mitchell v. McNeil, 487 F.3d 374, 378 (6th Cir. alone one that they believe was adequately thorough or correct. This fails to shock the conscience. d. Taking offense at comments the Varnaus made fails to shock the conscience. Plaintiffs allege two of their interactions with the Varnaus make up their claim: (1) Dr. Varnau?s suggestion that Plaintiffs dispose of the remainder of Mr. Jones?s remains by burying them at the site of a tree (Complaint, 1] 39), and (2) Dennis Varnau?s comment to Plaintiff Elfers 15 Case: Doc 13 Filed: 04/25114 Page: 18 of 22 PAGEID 76 that ?Everybody loses someone every day.? (Complaint, $1 36.) These remarks fall far below the mark of shocking the conscience. ?However, inappropriate comments, unpalatable jokes, undue teases, unethical taunting, tasteless mockery, etc. cannot, as a matter of law, qualify as a conscience shocl