Harner v. Adams County Board of County Commissioners et al
Filing
14
ORDER OF DISMISSAL re: 7 : Defendant is entitled to qualified immunity from liability, this civil action is dismissed, by Judge Richard P. Matsch on 6/20/2013. (rpmcd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00404-RPM
CAROLYN K. HARNER,
Plaintiff,
v.
JAMES HIBBARD,
Defendant.
____________________________________________________________________________
ORDER OF DISMISSAL
____________________________________________________________________________
The claim against the defendant James Hibbard is that when he was the County
Coroner for Adams County, Colorado, he intentionally caused the destruction of a section of the
aorta of the body of Michael Harner, taken during an autopsy, showing a perforation and
constituting crucial evidence in a wrongful death action claiming negligence in conducting a
cardiac catheterization. The trial resulted in a defendant’s verdict. The plaintiff contends that
Hibbard should be liable in damages under 42 U.S.C. § 1983 because he violated the
constitutional right of access to the court because the specimen would have enabled Ms.
Harner to prove that perforation of the aorta was the cause of her husband’s death.
The defendant moved to dismiss, asserting qualified immunity because there is no
clearly established law of which a reasonable coroner would be aware that his conduct violated
the United States Constitution. The plaintiff cites to an unpublished opinion of the Tenth Circuit
Court of Appeals, Donohue v. Hoey, 109 Fed. Appx. 340, 357 (10th Cir. 2004). In the court’s
discussion of a constitutional right of access to the courts, Wilson v. Meeks, 52 F.3d 1547 (10th
Cir. 1995) was considered instructive. In that opinion, the court reversed an order denying
qualified immunity, the court accepted the limitation on liability for denial of access to the courts
in Foster v. City of Lake Jackson, 28 F.3d, 425, 430 (5th Cir. 1994) that the protection is for the
opportunity to initiate legal action.
The plaintiff has failed to present established legal authority to support a claim that a
coroner’s intentional destruction of tissue taken during an autopsy that he knew would be critical
to a wrongful death action is a violation of the United States Constitution.
Accordingly, it is
ORDERED, that because the defendant is entitled to qualified immunity from liability, this
civil action is dismissed.
DATED: June 20th, 2013
BY THE COURT:
s/Richard P. Matsch
_________________________________
Richard P. Matsch, Senior District Judge
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