Unpublished Disposition, 863 F.2d 886 (9th Cir. 1986)

MEMORANDUM^** 

Appellant Warren A. Taylor appeals pro se the district court's orders of summary judgment against him. Taylor alleges that appellees denied him his constitutional right to name his daughter with his surname in violation of 42 U.S.C. § 1983. We affirm.

* On November 18, 1981, a daughter was born to Mrs. Renata Bateman at Maricopa County General Hospital (the "hospital") in Phoenix, Arizona. Mrs. Bateman was married to Rollie Bateman, Jr. On November 19, 1981, Taylor came to the hospital, claiming to be the natural father of the infant. According to his complaint, an unidentified nurse asked him if he wanted to name the child. He informed her that he wished to name the child "Michelle May Taylor," as agreed between him and Mrs. Bateman. A few minutes later, Taylor was arrested for violation of a work release furlough from prison.

Hospital staff prepared a birth certificate stating the child's name as "Michelle May Bateman." The certificate lists Rollie Bateman, Jr. as the father. Mrs. Bateman certified that the information on the certificate was correct.

On January 8, 1986, Taylor filed a complaint in the district court alleging that his constitutional right to name his child had been infringed in violation of 42 U.S.C. § 1983. The named defendants were the hospital; Dolores Amavisca and Mary House of the hospital records department; Candace Lew, M.D. (the delivering obstetrician) [hereinafter collectively "Maricopa appellees"]; the Arizona Department of Health Services; Lloyd L. Novick, M.D., Director of the Arizona Department of Health Services and State Registrar of Vital Statistics; and Arizona Assistant Registrar Alfonso Bravo [hereinafter collectively "state appellees"].

Taylor requested a declaration that the appellees had violated his civil rights, an order requiring that Michelle's surname be changed on her birth certificate from "Bateman" to "Taylor," and general injunctive relief against Arizona's birth registration statute. He claimed that the statute, Ariz.Rev.Stat.Ann. Sec. 36-322 (1986), was unconstitutional on its face and as applied by the Maricopa appellees.

Both groups of appellees moved for summary judgment. On June 6, 1986, the district court granted the Maricopa appellees' motion for summary judgment, on the grounds that they were improper parties. The court stated that because state law governed birth certificates, the Maricopa appellees were powerless generally to determine what names should be placed on the certificates, or specifically to change Michelle's certificate six years after its filing with state authorities.

On July 21, 1986, the district court granted summary judgment in favor of the Arizona Department of Health Services on the ground that the eleventh amendment prohibited an action against a state agency, and sovereign immunity had not been waived for section 1983 claims. See Almond Hill School v. U.S. Dep't of Agriculture, 768 F.2d 1030, 1033-34 (9th Cir. 1985); Windward Partners v. Ariyoshi, 693 F.2d 928, 929 (9th Cir. 1982), cert. denied, 461 U.S. 906 (1983). The two individual state officer appellees, Novick and Bravo, were granted summary judgment because they had not personally refused to enter the surname Taylor on Michelle's birth certificate, and respondeat superior does not apply to 42 U.S.C. § 1983 claims absent an "affirmative link" between the supervisor and the misconduct, which was not the case here. Rizzo v. Goode, 423 U.S. 362, 370-71 (1976). The court noted in addition that Taylor's paternity had not been established by court order. A man attempting to require that a birth certificate show him to be the father of a child born to a woman married to another man can obtain such relief under Arizona law only by producing such proof. Ariz.Rev.Stat.Ann. Sec. 36-322(E).

Taylor appeals the orders of summary judgment.¹  We have jurisdiction over this timely appeal of final dispositions. 28 U.S.C. § 1291; Fed. R. App. P. 4(a) (1). We review orders of summary judgment de novo. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986).

The district court granted summary judgment in favor of the Maricopa County appellees because the requested relief was not within their power. This disposition was correct. Michelle's birth certificate was filed with the state registrar in 1981, and Arizona law makes no provision for hospital officials to be able to correct a birth certificate they have prepared and filed. See Ariz.Rev.Stat.Ann. Sec. 36-326.

Taylor alleges that this disposition was erroneous because of his further demand for general injunctive relief against the hospital's alleged misapplication of Arizona's statute regarding birth certificates. Even if we assume for the purpose of summary judgment that the hospital did place the name Bateman on the certificate contrary to the wishes of Taylor and Mrs. Bateman, Taylor offers no evidence of a continuing pattern or practice of constitutional violation, or the likelihood of its repetition against himself, sufficient to raise this claim. See Los Angeles v. Lyons, 461 U.S. 95, 101-09 (1983). Since granting the request for declaratory relief by itself would have no practical effect on the parties, that claim cannot serve to make the Maricopa appellees proper parties under the case or controversy requirement of Article III. See Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 38 (1976) (plaintiff must demonstrate that injury would likely be redressed by a favorable decision).

The district court granted summary judgment in favor of the state appellees Novick and Bravo because there was no affirmative link between them and the alleged deprivation of rights sufficient to overcome the usual rule against respondeat superior liability under 42 U.S.C. § 1983. See Rizzo, 423 U.S. at 370-71; Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 680 (9th Cir. 1984).

The statute at issue is facially neutral; it does not require any particular surname to be placed upon an infant's birth certificate. Ariz.Rev.Stat.Ann. Sec. 36-322. Rather, the naming of the child is left to the parents' discretion; either parent may sign the birth certificate and thus attest to its accuracy. Id. The record is clear that state appellees played no role in rejecting the surname "Taylor," that they have received no request for a name change, and that they exercise no policy denying parents the right to surnames of their choice. Summary judgment was proper.

We affirm the district court's judgments without reaching the interesting questions of whether the constitutional right asserted by Taylor is indeed a fundamental privacy right protected by the fourteenth amendment and whether, if so, Taylor has standing to raise the claim.

AFFIRMED.