* The Honorable Michael R. Barrett, United States Di strict Judge for the Southern District of Ohio, sitting by designation. RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 09a0258p.06 

### UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

_________________

KAREN WAESCHLE , Plaintiff-Appellee,

v. L JUBISA J. D RAGOVIC , Defendant-Appellant. X - - - -> , - - - N No. 08-2228

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 08-10393—Victoria A. Roberts, District Judge. Argued: June 16, 2009 Decided and Filed: July 22, 2009 Before: GILMAN and McKEAGUE, Circuit Judges; BARRETT, District Judge. *

_________________ COUNSEL ARGUED: William H. Horton, GIARMARCO, MULLINS & HORTON, P.C., Troy, Michigan, for Appellant. Patrick J. Perotti, DWORKEN BERNSTEIN CO., LPA, Painesville, Ohio, for Appellee. StevenM. Jentzen, STEVEN M. JENTZEN, P.C., Ypsilanti, Michigan, for Amici Curiae. ON BRIEF: William H. Horton, Elizabeth A. Favaro, GIARMARCO, MULLINS & HORT ON, P.C., Troy, Michigan, Keith J. Lerminiaux, OAKLAND COUNTY CORPORATI ON COUNSEL, Pontiac, Michigan, for Appellant. Patrick J. Perotti, DW ORKEN BERNSTEIN CO., LPA, Painesville, Ohio, John Henry Metz, LAW OFFICE, Cincinnati, Ohio, for Appellee. Steven M. Jentzen, STEVEN M. JENTZEN, P.C., Ypsilan ti, Michigan, B. Eric Restuccia, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, Daniel A. Ophoff, KENT COUNTY ADMINISTRATORS OFFICE, Grand Rapids, Michigan, Joanne G. Swanson, KERR, RUSSELL AND WEBER, PLC, Detroit, Michigan, for Amici Curiae.

1No. 08-2228 Waeschle v. Dragovic Page 2

_________________ OPINION

_________________ RONALD LEE GILMAN, Circuit Judge. Afte r Karen Waeschle’s mother died, an autopsy was performed to determine the cau se of death. When the mother’s remains were returned to Waeschle for cremation, sh e was not informed that the brain had been removed during the autopsy and was still being studied by the Medical Examiner. Waeschle sued Ljubisa J. Dragovic, the Oakland County Medical Examiner (Dragovic or the Medical Examiner), after discovering that her mother’s brain had been incinerated as medical waste once the autopsy was completed. The Medical Examiner, Waeschle maintains, violated the Due Process Clauseof the Fourteenth Amendment by depriving her of the right to dispose of her mother’s brain. Dragovic filed for summary judgment, a sserting a qualified-immunity defense, which the district court denied. For the reasons set forth below, we REVERSE the judgment of the district court and REMAND the case with instructions to GRANT Dragovic’s motion for summary judgment.

I. BACKGROUND A. Factual background Karen Waeschle’s 88-year old mother, Kath erine R. Weins, was a resident of a nursing home in West Bloomfield, Michigan. In August 2006, she fell and hit her head. Weins was taken to a hospital, where she diedtwo weeks later. Waeschle suspected that abuse or neglect caused the fall. To investigate, the West Bloomfield Township Police Department requested that an autopsy beperformed on Weins’s body. Waeschle did not challenge the request. Dr. Ruben Ortiz-Reyes was the Deputy Oakland County Medical Examiner who conducted the autopsy. This required Dr. Or tiz-Reyes to remove and examine various organs, including Weins’s brain, for clues regarding the cause of her death. To examineNo. 08-2228 Waeschle v. Dragovic Page 3

a brain, it must be soaked in a formalde hyde-like solution until it becomes stiff enough to dissect. The soaking process normally take s 10 to 14 days. With the exception of the brain, the other organs that Dr. Ortiz-Reyes examined were placed back into the body. When Weins’s body (minus the brain) was made available to Waschle, the latter cremated the remains. Waeschle dispos ed of her mother’s body without knowing that the brain was not included. The Medical Examiner failed to notify Waeschle that her mother’s body was being returned without the brain or that the Medical Examiner planned to incinerate it once the examination of that organ was completed. Several months later, after disposing of her mother’s body, Waeschle met with the Deputy Medical Examiner and was provided a copy of the autopsy report. At that time, Waeschle learned that her mother’s brain had been incinerated as medical waste without her consent. This litigation followed. B. Procedural background As amended, Waeschle’s complaint alleged that the Medical Examiner violated Waeschle’s Fourteenth Amendment right to due process by not returning her mother’s brain for disposal after the autopsy of that organ was completed. Waeschle also claimed that Dragovic negligently and intentionally inflicted emotional distress on her in violation of state law. In June 2008, the Medical Examiner filed a motion for summary judgment on the due process claim based upon the defense of qualified immunity. He also filed a motion to dismiss the state-law cau ses of action. In the alternative, Dragovic urged the district court to certify the state-law issues to the Michigan Supreme Court.

The district court dismissed the state-la w claims. As for the due process claim, the court found that Waeschle had establishe d that (1) she had a quasi-property interest in her mother’s brain that was protected under the United States Constitution, and (2) the Medical Examiner deprived her of that interest while acting under color of state law. The court also found that Dragovic was not entitled to qualified immunity because the quasi-property interest was “clearly established” and because the Medical ExaminerNo. 08-2228 Waeschle v. Dragovic Page 4

“reasonably should have known” that he was violating Waeschle’s Fourteenth Amendment right.

II. ANALYSIS

A. Standard of review This appeal involves the denial of a qualified-immunity claim, which was set forth in Dragovic’s motion for summary judgmen t. “We review a district court’s denial of qualified immunity de novo.” Blake v. Wright , 179 F.3d 1003, 1007 (6th Cir. 1999). Summary judgment is proper where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In considering a motion for summary judgment, the district court must construe all reasonable inferences in fa vor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986). The central issue is “whether the evidence presents a sufficient disagreement torequire submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). B. Section 1983 and the qualified-immunity framework Section 1983 serves as a vehicle to obtain damages caused by persons acting under color of state law whose conduct violat es the U.S. Constitution or federal laws. McQueen v. Beecher Comty. Schs. , 433 F.3d 460, 463 (6th Cir. 2006). “A law enforcement officer’s key defense to a § 1983 action is encapsulated in the concept of qualified immunity.” Drogosch v. Metcalf , 557 F.3d 372, 377 (6th Cir. 2009). “The doctrine of qualified immunity protects govern ment officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan , 129 S. Ct. 808, 815 (2009) (citation and internal quotation marks omitted). Until recently, federal courts were required to conduct the qualified-immunity analysis using the two-step sequential inquiry set forth in Saucier v. Katz , 533 U.S. 194 (2001). The first step required courts to dete rmine “whether the facts that a plaintiff hasNo. 08-2228 Waeschle v. Dragovic Page 5

alleged . . . or shown . . . make out a violation of a constitutional right.” Pearson , 129 S. Ct. at 816 (citations omitted). And if the plaintiff has satisfied this first step, the court must decide whether the right at issue was “clearly established” at the time of defendant’s alleged misconduct. Qualified immunity is applicable unless the official’s conduct violated a clearly established constitutional right. Id . (citation omitted).

In Pearson , however, the Supreme Court held that the sequential Saucier protocol was no longer mandatory. Id. at 818. The Court reasoned that [t]he procedure sometimes results in a substantial expenditure of scarce judicial resources on difficult questions that have no effect on the outcome of the case. There are cases in which it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right. Id

. Our qualified-immunity analysis that follows does not resolve the merits of Waeschle’s constitutional claim. Doing so is unnecessary because, as will be shown, Waeschle’s purported constitutional right is not clearly established. C. Clearly established constitutional rights The “clearly established” prong of the two-step Saucier analysis is particularly important for the present case. This court has clarified that [f]or a right to be “clearly established,” the contours of the right must be sufficiently clear that a reasonable official would understand that his or her conduct violates that right. Th e unlawfulness of the official or employee’s conduct must be apparent in light of pre-existing law. Durham v. Nu’Man , 97 F.3d 862, 866 (6th Cir. 1996). “A right is not considered clearly established unless it has been authoritatively decided by the United States Supreme Court, the Court of Appeals, or the highest court of the state in which the alleged constitutional violation occurred.” Id

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Waeschle complains that Dragovic violated her right to dispose of her mother’s brain when he did not give her the opportun ity to recover it for the purpose of burial or cremation. But whether Waeschle has this ri ght under state law is far from clear. Before explaining why, we will set forth the framew ork governing the analysis of procedural due process claims to provide further context for the claim at stake in this appeal. 1. Due process framework The Due Process Clause of the Fourteenth Amendment provides that no State shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. “In order to establis h a procedural due process claim, a plaintiff must show that (1) he had a life, liberty, or property interest protected by the Due Process Clause; (2) he was deprived of this protected interest; and (3) the state did not afford him adequate procedural rights prior to depriving him of the property interest.” Women’s Med. Prof’l Corp. v. Baird , 438 F.3d 595, 611 (6th Cir. 2007) (citation omitted). This appeal concerns the question of whether Waeschle has a constitutionally protected property interest under the first el ement listed above. “Property interests are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Id. (quoting Bd. of Regents v. Roth , 408 U.S. 564, 577 (1972) (internal quotation marks omitted)). Although property rights are principally created by state law, “whether a substantive interest created by the state rise s to the level of a constitutionally protected property interest is a question of federal constitutional law.” Whaley v. County of Tuscola , 58 F.3d 1111, 1114 (6th Cir. 1995). “Property interests protected by the due process clause must be more than abstract desires or attractions to a benefit. The due process clause only protects those interests to which one has a legitimate claim of entitlement.” Brotherton v. City of Cleveland , 923 F.2d 477, 480 (6th Cir. 1991) (citations and internal quotation marks omitted). In the next subsection, we address theNo. 08-2228 Waeschle v. Dragovic Page 7

issue of whether Dragovic deprived Waesch le of a clearly established, constitutionally protected property right to her mothe r’s brain without due process of law. 2. White’s claimed property right is not clearly established Waeschle cites two cases from this court in support of her claim that she has a clearly established property right to her mother’s brain: Brotherton v. Cleveland , 923 F.2d 477 (6th Cir. 1991), and Whaley v. County of Tuscola, 58 F.3d 1111, 1117 (6th Cir. 1995). Each of these cases involves the removal of corneas from dead bodies without the authorization of the decedent’s ne xt of kin. Because the court in Whaley considered itself bound by Brotherton , we will discuss the cases in chronological order.

In Brotherton , the plaintiff’s husband was discove red in his car without a pulse. He was taken to a hospital in Cincinnati, Ohio, where he was declared dead on arrival. The plaintiff declined to donate her husband’s organs. Because the death might have been a suicide, the hospital transferred the body to the county coroner’s office for an autopsy. After the autopsy was completed, the coroner permitted the removal of the decedent’s corneas for storage in an eye bank. The hospital had failed to inform the coroner that the plaintiff did not want her husband’s body parts removed for donation. Nor did the coroner ask whether there were any such objections before allowing the removal of the corneas. In fact, an Ohio statute “permitted a coroner to remove the corneas of autopsy subjects without consen t, provided that the coroner has no knowledge of an objection by the decedent, the decedent’s spouse, or, if there is no spouse, the next of kin, the guardian, or the person authorized to dispose of the body.” Brotherton , 923 F.2d at 478 (citing Ohio Rev. Code § 2108.60). The plaintiff in Brotherton sued the county coroner under 42 U.S.C. § 1983, alleging that she was deprived of her prope rty rights in violation of the Due Process Clause because her husband’s corneas had been removed without her consent. Id . at 478-79. Although the district court dismissed the complaint for failing to state a claim, this court reversed, holding that “the aggreg ate of rights granted by the state of Ohio to [the plaintiff] rises to the level of a legitimate claim of entitlement in [the decedent’s]No. 08-2228 Waeschle v. Dragovic Page 8

body, including his corneas, protected by the due process clause of the fourteenth amendment.” Id. at 482 (internal quotation marks omitted). In reaching this conclusion, the Brotherton court impliedly conceded that the widow’s rights to her husband’s dead body were quite limited. The court acknowledged, for example, that Ohio courts had expressly declined to recognize that the next of kin have vested property rights in the bodies of their deceased relatives. Id . at 480 (citing Carney v. Knollwood Cemetery Ass’n , 514 N.E.2d 430, 434-35 (Ohio Ct. App. 1986)). On the other hand, the court noted that “property” is traditionally conceptualized as a bundle of rights, including “the rights to posse ss, to use, to exclude, to profit, and to dispose.” Id. at 481. Moreover, there was little doubt that Ohio law afforded the next of kin at least some of these rights with respect to their relative’s body. See id.

The court in Brotherton emphasized that the plaintiff had the right under Ohio law to possess her husband’s body for the limite d purpose of conducting a burial or other lawful disposition. Id . at 482. Another right of the next of kin is to make an anatomical gift of their relatives’ organs. See id. at 478 (“The hospital asked [the plaintiff] to consider making an anatomical gift; she declined . . . .”). Brotherton concluded that these limited rights, even though they were not labeled property rights by the Ohio courts, formed the basis of a constitutionally protected property interest in the decedent’s body, including the corneas. Id. Whaley involved similar facts. Two Michigan counties hired a pathologist to conduct autopsies on a contractual basis. The counties entered into an agreement pursuant to which the pathologist’s assistant was allowed to remove a decedent’s corneas without the consent of the next of kin. In return, the pathologist’s assistant, who stood to profit from selling the corneas, agreed to bear “all the counties’ expenses in performing the autopsies whenever corneas were removed, and half those expenses when they were not.” Whaley , 58 F.3d at 1113. Once this cornea-removal practice was disc overed, a class of plaintiffs sued the counties, alleging that “they were deprivedof their Fourteenth Amendment right to procedural due process when the alleged state actors removed the decedents’ eyeballsNo. 08-2228 Waeschle v. Dragovic Page 9

or corneas.” Id. The district court dismissed their complaint after concluding that Michigan law did not create rights that qua lified as constitutionally protected property interests under the Due Process Clause. Id.

Just as in Brotherton , however, this court reversed the district court’s judgment, holding that “the next-of-kin [have] a legitim ate claim of entitlement and thus a property interest in a dead relative’s body, including the eyes.” Id. at 1117. The court reasoned that it was bound by Brotherton because Michigan law contained “the same basic rights in a deceased person’s body as Ohio.” Id. at 1114. One such right is that of the next of kin “to possess the body for burial and prevent its mutilation.” Id . This right was inferred from several Michigan Supreme C ourt cases recognizing a cause of action for the unlawful mutilation of a corpse. See id. (citing, for example, Deeg v. City of Detroit , 76 N.W.2d 16, 19 (Mich. 1956) (“It seems to be settled by the great weight of authority that the unlawful and intentional mutilation of a dead body gives rise to a cause of action on behalf of the person or persons entitled to the possession, control, and burial of such body.”)) The next of kin also have the right to choose whether to make “a gift of all or part of the decedent’s body, at least when there is no contrary intent evidenced by the decedent.” Whaley , 58 F.3d at 1116. In sum, the court concluded that the next of kin have the right to dispose of the body in limited circumstances, possess the body for burial, and prevent its mutilation. Applying Brotherton , we therefore hold that Michigan provides the next of kin with a constitutionally protectedproperty interest in the dead body of a relative. Id

. Waeschle contends that the same basic reasoning found in Brotherton and Whaley controls this appeal. Her argument is, in essence, that her mother’s brain is no less constitutionally protected than are eyes or corneas. She also contends that the cornea cases serve to satisfy the second prong of Saucier ’s qualified-immunity analysis because they allegedly demonstrate that the right to her mother’s brain was clearly established.No. 08-2228 Waeschle v. Dragovic Page 10

Brotherton and Whaley , however, are distinguishable from the present case. The key difference is that the brain of Waeschle’s mother was removed and retained for study by the Medical Examiner in furtherance of a lawful criminal investigation. By contrast, the removal of corneas in Brotherton and Whaley served no investigative function whatsoever. The distinction is im portant because Waeschle might have no right under Michigan law to possess, control, or dispose of her mother’s brain once it is removed for legitimate forensic study. A pair of cases decided in the SouthernDistrict of Ohio on this very issue illustrate the conflicting viewpoints. The first case, Hainey v. Parrott , No. 1:02-CV-733, 2005 WL 2397704, at *4-5 (S.D. Ohio Sept. 28, 2005), supports Waeschle’s position. In Hainey , the plaintiffs brought a class-action lawsuit after learning, as Waeschle did, that they had buried their loved ones’ bodies without the brains because the latter had been removed during autopsy and retained for further study. The Ohio coroner moved for, and the district court denied, summaryjudgment on the basis of qualified immunity. According to the district court in Hainey , the plaintiffs had a legitimate claim of entitlement to the decedents’ brains in light of Brotherton

. Brotherton ’s holding, the court continued, broadly included “the right to take possession of what remains of the deceased’s body following the completion of the autopsy.” Hainey , 2005 WL 2397704, at *6. The court further concluded that “Brotherton very broadly and very clearly held that family members have a property inte rest in their decedent’s body parts which is protected by the due process clause of the Fourteenth Amendment.” Id. at *8. This purportedly clear ruling, furthermore, rendered the coroner ineligible for qualified immunity because “a reasonable coroner in th is judicial circuit would have known that disposing of body parts without notice to the decedent’s next of kin would have violated that right.” Id. Hainey therefore supports Waeschle’s claim. But subsequent caselaw in Ohio reaches the opposite conclusion. The same district court, in Albrecht v. Treon , No. 1:06- cv-274, 2007 WL 777864, at *1 (S.D. Ohio March 12, 2007) ( Albrecht I ), considered a virtually identical fact pattern as the one addressed in Hainey . A lawsuit was filedNo. 08-2228 Waeschle v. Dragovic Page 11

against the coroner of Clermont County, Ohio after the plaintiffs discovered that the coroner “had removed their son’s brain for fo rensic examination and retained it after the autopsy.” Albrecht I, 2007 WL 777864, at *1. In response, the coroner argued that the court in Hainey had misinterpreted applicable Ohio law. Id. The coroner requested that the district court certify the following question to the Ohio Supreme Court:

Whether the next of kin of a deced ent, upon whom an autopsy has been performed, have a property right under Ohio law in the decedent’s tissues, organs, blood or other body parts that have been removed and retained by the coroner for forensic examination and testing. Id . at *2. Acknowledging that Ohio law affords the ne xt of kin a custodial right in the body of the decedent, the district court neve rtheless concluded that the right does not “automatically confer to the next of kin a protected right in ‘body parts’ of a decedent removed and retained by the coroner for forensic examination and testing.” Id. at *5. The court emphasized that an Ohio statute app eared to severely restrict the rights of the next of kin to body parts or tissues coll ected during the course of an autopsy. Id. (citing Ohio Rev. Code § 313.123(B)(1) (2006) , which provides that “retained tissues, organs, blood, other bodily fluids, gases, or any other specimens from an autopsy are medical waste and shall be disposed of in accordance with applicable federal and state laws”). Indeed, there was only one exception to th is medical-waste disposal requirement, triggered by religious considerations. Id. (citing Ohio Rev. Code § 313.123(B)(2), which states that the coroner must return specimens to the person who has the right to the disposition of the body if “the coroner has reason to believe that the autopsy is contrary to the deceased person’s religious beliefs.”). Despite this statute’s provision stating that autopsy specimens are to be treated as medical waste, the district court granted the coroner’s request to certify th e issue to the Ohio Supreme Court after concluding that none of the existing Ohio authorities resolved the precise issue of whether the next of kin had a right to dispose of body parts that had been collected during an autopsy. Albrecht I, 2007 WL 777864, at *5–6.No. 08-2228 Waeschle v. Dragovic Page 12

The Ohio Supreme Court accepted the certified question for review and repudiated the plaintiffs’ position, holding that “the next of kin of a decedent upon whom an autopsy has been performed do not have a protected right under Ohio law in the decedent’s tissues, organs, blood, or other body parts that have been removed and retained by the coroner for forensic examination and testing .” Albrecht v. Treon , 889 N.E.2d 120, 122 (Ohio 2008) ( Albrecht II ) (emphasis added). In reaching this conclusion, the court distinguished Brotherton , reasoning that “ Brotherton ’s specific holding regarding removal of corneas for purposes unrelated to the autopsy is not relevant in this case.” Id . at 124. The corneas in Brotherton were extracted pursuant to an Ohio statute that permitted their removal even when doing so was not necessary to conduct a forensic examination. 923 F.2d at 478-79. Different interests are at stake, according to the Ohio Supreme Court, when tissue is taken for lawful investigative purposes: [A] deceased’s next of kin had no protected right in autopsy specimens pursuant to Ohio statutes . The Ohio Revised Code authorizes coroners to perform an autopsy when the cor oner believes an autopsy is necessary. A coroner’s forensic examination is a classic function of the police power of the state. Many times, aut opsy specimens and the results of the forensic examination are essential evidence in the prosecution of a crime. Sometimes, autopsy specimens must be preserved for long periods of time. Albrecht II, 889 N.E.2d at 126-27 (citation omitted) (emphasis added). Furthermore, the Ohio Supreme Court noted that its conclusion did not depend on the existence of the 2006 statute that designated autopsy specimens as medical waste. Id. at 126 (holding that “[e]ven before [Ohio Rev. Code § 313.123(B)] was enacted, a deceased’s next of kin had no protected right in autopsy specimens pursuant to Ohio statutes”). Albrecht II clearly raises a question as to the scope of the quasi-property right at issue in both Brotherton and Whaleywhere forensic specimens are collected in the course of criminal investigations (as in the present case). Waeschle’s property rights, of course , are not defined by Ohio law. But Whaley observed that Michigan law contained “the same basic rights in a deceased person’sNo. 08-2228 Waeschle v. Dragovic Page 13

body as Ohio.” Whaley , 58 F.3d at 1115. The Ohio Supreme Court’s decision in Albrecht II is therefore relevant in assessing whethe r the same right is clearly established under Michigan law. And the Court’s decision in Albrecht II, which explicitly denied that the next of kin have a right to body parts collected for forensic examination, suggests that such a right would probably not be recognized under existing Michigan law. But our analysis is not based exclusiv ely on the analogy to cases construing Ohio law. Instead, our independent review of Mi chigan law fails to establish an unequivocal post-autopsy right to specimens taken for the purpose of a lawful criminal investigation. One of the cases from the Michigan Supr eme Court cited by Waeschle recognizes a cause of action for the unlawful and intentional mutilation of dead bodies. Deeg v. City of Detroit , 76 N.W.2d 16, 19 (Mich. 1956) (“It seem s to be settled by the great weight of authority that the unlawful and intentional mutilation of a dead body gives rise to a cause of action on behalf of the person or persons entitled to the possession, control, and burial of such body.”). Another recognizes the next of kin’s right to control a relative’s body for the limited purpose of securing a burial. Doxtator v. Chicago & W.M. Ry. Co. , 79 N.W. 922, 922 (Mich. 1899) (recognizing th at, although there was “no property in a dead body [at common law], . . . the one w hose duty it is to car e for the body of the deceased is entitled to possessi on of the body, as it is when death comes, and that it is an actionable wrong for another to interfere with that right by withholding the body or mutilating it in any way”). But these cases, as well as others cited by Waeschle, fail to address the question of body parts retained for forensic examination. See Keyes v. Konkel ,78 N.W. 649, 649 (Mich. 1899) (observing that various state c ourts have considered dead bodies to be “quasi property,” and recognizing a tort for in fringing on a next of ki n’s right to have an unmutilated deadbody delivered for burial); Dampier v. Grace Hosp. Corp. , 592 N.W.2d 809 (Mich. Ct. App. 1999) (addressing causes of action available against coroners who allowed the decomposition of a dead body in their possession); Tillman v. Detroit Receiving Hosp. , 360 N.W.2d 275, 277 (Mich. Ct. App. 1984) (“While thereNo. 08-2228 Waeschle v. Dragovic Page 14

is no property right in the next of kin to a dead body, . . . Michigan jurisprudence recognizes a common law cause of action on be half of the person or persons entitled to the possession, control, or burial of a dead body . . . .”). None of these cases consider the situation where body parts were removed and retained during an autopsy for study in the course of a properly authorized criminal investigation. Nor does Waeschle identify any Michigan statute that unambiguously sets forth a Medical Examiner’s duties regarding how heor she should dispose of particular body parts collected for the purposes of an au topsy. One statute authorizes Medical Examiners to retain, “as long as may be necessary, any portion of the body believed by the medical examiner to be necessary for the detection of any crime.” Mich. Comp. Laws § 52.205 (emphasis added). The same statute instructs Medical Examiners to “promptly deliver or return the bodyto relatives or representatives of the deceased.” Id (emphasis added)

. Another statute cited by Waeschle simply describes the right of the next of kin to make decisions regarding, for example, funeral arrangements. See id

. § 700.3206(1). Waeschle argues that the above provisions create the right to a prompt return of her mother’s brain after the Medical Examiner had completed the autopsy. But the statutory language does not specify whether each and every body part or specimen collected during the course of an autopsy mu st be returned to the next of kin on a piecemeal basis. Such a requirement might prove totally impracticable. In sum, Michigan law regarding the rights of the next of kin in their relative’s body parts removed for forensic examination duri ng an autopsy is at best equivocal. Not a single case instructed Dragovic to treat th e brain in any manner other than the way he did. Nor did any Michigan statute unambi guously instruct Dragovic on how to dispose of individual body parts retained for forensic examination as opposed to dealing with the body as a whole. Waeschle’s alleged constitutionally protected property right to her mother’s brain is therefore not clearly established becausethe underlying state-created property interest is not “sufficiently clear that a reasonable o fficial would understand that what he is doingNo. 08-2228 Waeschle v. Dragovic Page 15

violates that right.” See Drogosch v. Metcalf , 557 F.3d 372, 379 (6th Cir. 2009) (quoting Anderson v. Creighton , 483 U.S. 635, 640 (1987)). For that reason, Dragovic is entitled to summary judgment on the basis of qualified immunity. See Drogosch , 557 F.3d at 379. To avoid any misunderstanding, we wish to clarify the limits of this holding. There is nothing in the preceding analysis that is intended to suggest that Michigan law clearly establishes that the next of kin have no quasi-property interest in body parts collected during the course of an autopsy for forensic examination. Nor is the discussion meant to foreclose the possibility that, if Mich igan establishes such a right in the future, the interest would rise to the level of a constitutionally protected property right under the Fourteenth Amendment. In light of Pearson v. Callahan , 129 S. Ct. 808, 818 (2009), however, we are under no obligation to determine the existence or the scope of Waeschle’s right to her mother’s brain in the present case. We also wish to acknowledge that Waeschle’s shock in learning that her mother’s brain was incinerated as medical waste is understandable. And the possibility exists that Michigan might in the future deci de to recognize a right to recover organs that were originally retained as pa rt of a lawful criminal inve stigation. Such a right would also presumably have to distinguish betw een major body parts (to which individuals like Waeschle would have a right to possess for the purpose of burial or cremation) and insignificant tissue samples (to which no such right would attach). But Michigan law as presently developed does not clearly recognize that such a custodial right to body parts exists. And whether to recognize such a ri ght is a task that the Michigan legislature and courts are better equipped to handle than this court, which is why we are exercising our discretion under Pearson to not further explore the first prong of the qualifiedimmunity test as set forth in Saucier v. Katz , 533 U.S. 194 (2001).No. 08-2228 Waeschle v. Dragovic Page 16

D. Certification In addition to raising the qualified-immunity question, Dragovic argues that the district court erroneously declined to certify certain issues of state law to the Michigan Supreme Court. But this issue is mootbecause Dragovic is entitled to qualified immunity without such certification in light of our determination that Waeschle’s alleged right to her mother’s brain is not yet clearly established under Michigan law.

III. CONCLUSION For all of the reasons set forth above, we REVERSE the judgment of the district court and REMAND the case with instructions to GRANT Dragovic’s motion for summary judgment.