United States District Court, Northern District of New York
March 11, 2002
JAMES HELMER AS ADMINISTRATOR OF THE ESTATE OF BRUCE HELMER, PLAINTIFF,
DANIEL G. MIDDAUGH, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS SHERIFF OF ONEIDA COUNTY, NEW YORK; M. PETER PARAVATI, INDIVIDUALLY AND AS UNDERSHERIFF OF ONEIDA COUNTY; JAMES BROWN, INDIVIDUALLY AND AS CHIEF OF CIVIL DIVISION OF ONEIDA COUNTY SHERIFF'S DEPARTMENT; COUNTY OF ONEIDA; ONEIDA COUNTY SHERIFF'S DEPARTMENT; LYNN MEUS, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY; MARY LOU BERIE, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY; AND LIEUTENANT JOSEPH LISI, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, DEFENDANTS.
The opinion of the court was delivered by: David N. Hurd, United States District Judge.
MEMORANDUM-DECISION AND ORDER
On December 27, 1999, Bruce Helmer ("B. Helmer") commenced the instant
action against defendants Daniel G. Middaugh, M. Peter Paravati, James
Brown, County of Oneida, and Oneida County Sheriff's Department, pursuant
to 42 U.S.C. § 1983, and asserting causes of action for deprivation
of civil rights protected by the Fourth, Ninth, and Fourteenth Amendments
to the U.S. Constitution and the N.Y. Constitution. Following the death
of B. Helmer, plaintiff James Helmer ("J. Helmer" or "plaintiff") was
substituted as the administrator of B. Helmer's estate. Plaintiff filed
an amended complaint on May 31, 2001, which added as defendants Lynn
Meus, Joseph Lisi ("Lt. Lisi"), and Mary Lou Berie.
Lt. Lisi now moves to dismiss the amended complaint pursuant to Federal
Rule of Civil Procedure or, alternatively, for summary judgment pursuant
to Federal Rule of Civil Procedure 56. Plaintiff opposes, and moves for
leave to file a second amended complaint. Oral argument was heard on
November 9, 2001, in Utica, New York. Decision was reserved.
The facts relevant to the instant motion are set forth briefly below in
the light most favorable to the nonmoving plaintiff.
Plaintiff is the administrator of the estate of his deceased brother,
B. Helmer. Plaintiff's decedent was a sergeant with the Oneida County
Sheriff's Department. On or about August 31, 1999, B. Helmer filed claims
of race discrimination and retaliation against Oneida County and the
Office of the Sheriff of Oneida County with the Equal Employment
Opportunity Commission ("EEOC"), and received a right to sue letter. He
was allegedly disabled from work as a result of this discrimination and
retaliation. B. Helmer commenced the instant action on December 22,
1999. He died on January 29, 2000, and J. Helmer, the administrator of
his estate, was substituted as plaintiff on July 24, 2000.
As noted above, Lt. Lisi was added as a defendant in plaintiff's first
amended complaint. He is a lieutenant in the Sheriff's Department. He is
not alleged to have been involved in the discrimination that gave rise to
this litigation. His sole involvement is that he is alleged to have
ordered and autopsy and photographs of B. Helmer's body, and to have
published the autopsy photographs to others, in violation of B. Helmer's
and the Helmer family's right to privacy
III. STANDARD OF REVIEW
A. Motion to Dismiss
In deciding a Rule 12(b)(6) motion, a court "must accept the
allegations contained in the complaint as true, and draw all reasonable
inferences in favor of the non-movant; it should not dismiss the
complaint `unless it appears beyond a reasonable doubt that the plaintiff
can prove no set of facts in support of [her] claim which would entitle
[her] to relief.'" Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994)
(quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); see also Kaluczky
v. City of White Plains, 57 F.3d 202, 206 (2d Cir. 1995). However,
conclusory allegations that merely state the general legal conclusions
necessary to prevail on the merits and are
unsupported by factual
averments will not be accepted as true. See, e.g., Clapp v. Greene,
743 F. Supp. 273, 276 (S.D.N.Y. 1990); Albert v. Carovano, 851 F.2d 561,
572 (2d Cir. 1988).*fn1
Though it is readily apparent from a review of plaintiff's amended
complaint and proposed Second Amended Complaint that plaintiff has, as a
matter of law, failed to allege a sustainable cause of action against
Lt. Lisi, because of the sensitive nature of plaintiff's allegations, it
is necessary to write briefly to clarify the reasons why this is so. The
fact that plaintiff's claims against Lt. Lisi must be dismissed is not
intended to trivialize the seriousness of these allegations, nor is it
intended to condone the sort of conduct alleged by plaintiff.
The amended complaint, as well as the proposed Second Amended
Complaint, states that, "This action is for money damages to redress the
deprivation by Defendants of rights secured to Plaintiff*fn2 by the
Constitution and the laws of the United States and the State of New
York." (Compl. ¶ 1.) With regard to Lt. Lisi, the specific
allegations are that he and others conspired to violate the privacy
interests of B. Helmer and his family by directing an autopsy without the
family's permission, and by obtaining photographs of the decedent's body
and publishing them to others. (Am. Compl. ¶¶ 24, 83-87.) Though Lt.
Lisi has submitted materials from outside the pleadings to disprove these
allegations, dismissal of the complaint against him is appropriate based
upon the face of the amended complaint itself.
With regard to the claims of B. Helmer, Lt. Lisi must be dismissed.
Even assuming all of the facts in the favor of the plaintiff, a dead man
does not have any constitutional rights. See Estate of Connor v.
Ambrose, 990 F. Supp. 606, 618 (N.D.Ind. 1997) ("A person's civil rights
may only be violated while that person is alive. After death, one is no
longer a "person" within our constitutional and statutory framework and
has no rights of which he may be deprived."). As the allegations
concerning Lt. Lisi are limited to conduct occurring after the death of
B. Helmer, plaintiff's amended complaint does not allege a viable cause
of action against him. In addition, because the proposed Second Amended
Complaint alleges no additional facts to demonstrate Lt. Lisi's
involvement prior to the death of B. Helmer, it does not cure this fatal
defect as to Lt. Lisi. (See Proposed Sec. Am. Compl. ¶¶ 81-89.)
With regard to the apparent claims of Bruce Helmer's children against
Lt. Lisi (for the autopsy and mishandling of his corpse), such claims
must also be dismissed. There is no general right of "privacy" regarding
an autopsy that is protected by the United States Constitution. While
there are cases involving the common
law right of "sepulcher," none of
the rights so recognized are implicated on these facts. See Mansaw v.
Midwest Organ Bank, No. 97-0271-CV-W-6, 1998 WL 386327 (W.D.Mo. 1998)
(noting that the "property interest" in a deceased body is the right to
"possess the body for burial, the right to control the disposal of the
body and a right to maintain a claim for disturbance of the body."). To
the extent that the children would claim that their "property" was taken
without due process, there was no taking of property. The Helmers were
not deprived of their father's body, nor were they prevented from
disposing of it as they saw fit, nor was it disturbed from its resting
place. To the extent that the facts might possibly support a cause of
action by the Helmers, it appears that it would be under state law
— which provides tort remedies for negligently mishandling a
corpse. See Johnson v. State of New York, 37 N.Y.2d 378, 382 (1975). No
such cause of action is pleaded in the amended complaint or in the
proposed Second Amended Complaint. Accordingly, plaintiff's claims against
Lt. Lisi on behalf of the family of B. Helmer must also be dismissed.
With regard to plaintiff's motion to amend the amended complaint,
plaintiff does not, as ability to amend as of right. See Wright, Miller &
Kane, Federal Practice and Procedure: Civil 2d § 1481 (suggesting
that "the liberal amendment as of course policy of Rule 15(a) should not
be extended [to apply when a complaint has been previously amended to add
additional parties.] A rule permitting the revival of the right to amend
might become a mechanism for abuse by encouraging plaintiff to add
nominal parties to keep his right to amend alive and by providing a
potential source of harassment.") As noted above, the allegations in his
proposed Second Amended Complaint have been considered to determine
whether or not it is possible for him to allege a viable cause of action
against Lt. Lisi. Because, as noted above, plaintiff can allege no
constitutional claims against Lt. Lisi, his motion to amend the amended
complaint is denied.
Because the plaintiff, James Helmer, has failed to plead a viable cause
of action against Lt. Lisi, and because a further amendment to cure the
defects would be futile, it is hereby
1. Defendant Lt. Joseph Lisi's motion to dismiss the amended complaint is
2. Plaintiff's motion to amend the amended complaint is DENIED.
IT IS SO ORDERED.