Sathyavaglswaran

Parents, whose deceased children’s corneas were removed by the Los Angeles County Coroner’s office without notice or consent, brought this 42 U.S.C. § 1983 action alleging a taking of their property without due process of law. The complaint was dismissed by the district court for a failure to state a claim upon which relief could be granted. We must decide whether the longstanding recognition in the law of California, paralleled by our national common law, that next of kin have the exclusive right to possess the bodies of their deceased family members creates a property interest, the deprivation of which must be accorded due process of law under the Fourteenth Amendment of the United States Constitution. We hold that it does. The parents were not required to exhaust post deprivation procedures prior to bringing this suit. Thus, we hold that they properly stated a claim under § 1988.

I. FACTUAL AND PROCEDURAL BACKGROUND

In reviewing the district court’s dismissal of the complaint under Rule 12(b)(6), “we must ‘take as true all allegations of material fact stated in the complaint and construe them in the light most favorable to the nonmoving party.’ ” Schneider v. California Dep’t…

Dissenting:

I dissent because I do not believe that the asthenic legal interest in a decedent’s body, which California confers upon relatives and others, should be treated as a puissant giant for federal constitutional purposes.

To begin with, it has always been true in California that absent a statute “there is no property in a dead body.” Enos v. Snyder, 131 Cal. 68, 69 , 68 P. 170, 171 (1900). For that reason, no action for conversion will lie against someone who is said to have damaged or taken a part of the body. See Gray v. S. Pac. Co., 21 Cal.App.2d 240, 246 , 68 P.2d 1011, 1015 (1937). To the extent that any right exists, it is, in general, merely a right to possession. Id. That right exists solely “for the limited purpose of determining who shall have its custody for burial.” Sinai Temple v. Kaplan, 54 Cal.App.3d 1103, 1110 , 127 Cal.Rptr. 80, 85 (1976).

Of course, any civilized state desires that the bodies of its deceased members be disposed of in an appropriate way, on grounds of decency, consideration for others, and pragmatism. And it should be done with reasonable haste and without undue acrimony.

California’s statutory scheme reflects all of that. It decidedly…