Appendix — Stump v. Sparkman

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FILED

| Nov 161977

MICHAEL RODAK, JR., CLERI

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1977.

No. 76-1750

HAROLD D. STUMP, JOHN HINES, M.D., HARRY M.

COVELL, M.D., AND WARREN G. SUNDAY,

Petitioners,

vs.

LINDA KAY SPARKMAN and LEO SPARKMAN,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT.

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1977.

No. 76-1750

HAROLD D. STUMP, JOHN HINES, M.D., HARRY M.

COVELL, M.D., AND WARREN G. SUNDAY,

Petitioners,

vs.

LINDA KAY SPARKMAN anpbD LEO SPARKMAN,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT.

INDEX TO APPENDIX.

PAGE

SR TEM « c culie-os sa ceasaateabiebecevvakaccers Al

GID 6 6.6 vat niece ccawed cbvtaccdsccveseceuss A8

Defendants’ Answers and Motions to Dismiss........... Al8

Petition to Have Tubal Ligation Performed on Minor and

Indemnity Agreement ........cccccccccccccccors A25

Date NR

Proceedings

11/26/75 1

12/ 2/75 2

12/ 3/75

Oo Pan HUA FS W

12/ 4/75 10

12/ 5/75 11

12/ 5/75 12

Complaint filed. Summons issued and mailed

to Marshal. ww

William F. McNagny enters appearance for

defs. Warren G. Sunday, John H. Hines, M.D.,

John C. Harvey, M.D. and Harry M. Covell,

M.D. lm

Marshal makes returns on the following

summons:

L. C. Baker, served 12/1/75, $10.44.

Ora E. McFarlin, served 12/1/75, $3.00.

Warren G. Sunday, served 12/1/75, $3.00.

Harold S. Stump, served 12/1/75, $3.00.

John H. Hines, M.D., served 12/1/75, $3.00.

John C. Harvey, M.D., served 12/1/75, $3.00.

Harry M. Covell, M.D., served 12/1/75,

$3.00. ww

Carl J. Suedhoff, Jr. enters appearance as at-

torney of record for defendant DeKalb Mem-

orial Hospital, Inc. ww

Motion for Enlargement of Time Within Which

to File Responsive Pleading filed by Carl J.

Suedhoff, Jr. counsel for DeKalb Memorial

Hospital. ww

Order Entered. (SE) Eschbach, Judge. Pur-

suant to the motion of DeKalb Memorial Hos-

12/ 5/75

12/12/75

12/18/75

12/19/75

12/22/75

pital filed this date, time is enlarged to and

including the 16th day of January, 1976 with-

in which to file responsive pleading to plaintiffs’

complaint. Copies to Richard H. Finley, Wil-

liam F. McNagny, Carl J. Suedhoff, Harold

D. Stump, Ora E. McFarlin 12/5/75. ww

Exhibit titled “Petition to Have Tubal Litiga-

tion Performed on Minor and Indemnity Agree-

ment” filed. slm/ww

H. Charles Winans enters appearance as coun-

sel for defendant Ora E. McFarlin. es

Phil M. McNagny, Jr. enters his appearance for

Def. Harold D. Stump. Cert of Serv. ww

Answer of Def. Harold D. Stump and Motions

to Dismiss filed. Cert of Serv. ww

Carl J. Suedhoff, Jr. enters written appearance

as counsel for defendant John C. Harvey,

M.D. ww

Motion for Enlargement of Time within

Which to File Responsive filed by def. John

C. Harvey, M.D. by counsel. Cert of Serv. ww

Order Entered. (SE) Eschbach, Judge. De-

fendant John C. Harvey, M.D., shall have to

and including the 16th day of January, 1976

in which to file responsive pleading to plain-

tiffs complaint. Copies to: H. Charles Winans,

Carl J. Suedhoff, Jr., William F. McNagny,

Phil M. McNagny, Jr., Richard A. Finley.

12/19/75. ww

Answer of Defendants, Warren G. Sunday,

John H. Hines, M.D. and Harry M. Covell,

M.D. filed. Cert of Serv. ww

12/23/75 21

1/ 5/76 22

1/ 5/76 23

1/13/76 24

1/14/76 25

1/14/76 26

1/16/76 27

Answer of Ora E. McFarlin filed. Cert. of

Serv. ww

Motion for Extension of Time for Filing An-

swer Brief filed by plaintiffs. Cert. of Serv. ww

Order Granting Extension of Time entered.

(SE) Eschbach, Judge. The time is extended

to and including the 16th day of January,

1976 in which plaintiffs have to answer the

motions to dismiss heretofore filed by defend-

ant, Harold D. Stump. Copies to: H. Charles

Winans, Carl J. Suedhoff, Jr., William F.

McNagny, Phil M. McNagny, Jr., Richard

H. Finley 1/5/76. ww

Motion to Dismiss filed by defs. Hines, Covell,

Sunday by counsel. Cert of Serv. ww

Motion for Enlargement of Time Within Which

to File Responsive Pleading filed by defend-

ants Harvey and DeKalb Memorial Hospital.

Cert of Serv. ww

Order Entered. (SE) Eschbach, Judge. De-

fendants Harvey and Dekalb Memorial Hos-

pital have to and including the 14th day of

February, 1976 within which to file re-

sponsive pleading to plaintiff's complaint.

Copies to: Richard H. Finley, Phil M. Mc-

Nagny, Jr., William F. McNagny, Carl J.

Suedhoff, Jr., H. Charles Winans 1/14/76.

Plaintiffs’ Reply Brief to the Memorandum

Filed on Behalf of Harold D. Stump in Sup-

port of His Motion to Dismiss filed. Cert. of

Serv. ww

1/27/76

2/17/76

3/ 2/76

Correction to Plaintiffs’ Reply Brief to the

Memorandum Filed on Behalf of Harold D.

Stump in Support of His Motion to Dismiss

filed. Cert. of Serv. ww

Motion for Extension of Time for Filing An-

swer Brie® filed by counsel for plaintiff. Cert.

of Serv. ww

Order Granting Extension of Time entered.

(©) Eschbach, Judge. The Court now ex-

t» © the time in which plaintiffs may file their

answer brief to and including 2/16/76. Copies

to Richard H. Finley, Phil M. McNagny, Jr.,

William F. McNagny, Carl J. Suedhoff, Jr.,

H. Charles Winans 1/27/76. ww

Plaintiffs’ Reply Brief to Defendants John H.

Hines, M.D., Harry M. Covell, M.D., and

Warren G. Sunday’s Memorandum in Support

of Their Motion to Dismiss filed. Cert. of

Serve. www

Motion to Dismiss filed by Carl J. Suedhoff,

Jr., counsel for defendants John C. Harvey,

M.D., and DeKalb Memorial Hospital. Cert.

of Serv. es

Motion for Oral Argument Concerning Pend-

ing Motions to Dismiss Filed by Various

Defendants, filed by Carl J. Suedhoff, Jr.,

counsel for the defendants John C. Harvey,

M.D., and DeKalb Memorial Hospital. es

Motion for Extension of Time for Filing

Answer Brief filed by Plaintiffs. Cert. of Serv.

Order entered. (SE) Eschbach, Judge. Plain-

tiffs’ Motion for Extension of Time is granted

3/29/76 36

5/13/76 37

5/14/76 38

6/10/76 39

and extends the time in which Plaintiffs may

file their answer brief to and including the

29th day of March, 1976. Copies to Richard

H. Finley, William F. McNagny, Carl J.

Suedhoff, Jr., H. Charles Winans, Phil M.

McNagny, Jr. 3/2/76. es

Plaintiffs’ Reply Brief to the Memoranda of

Defendants, John C. Harvey, M.D. and Dekalb

Memorial Hospital, Inc., filed in Support of

Their Motion to Dismiss filed. Cert. of Serv.

slm

Memorandum of Decision and Order Entered.

(SE) Eschbach, Judge. Pursuant to the vari-

ous Rule 12(b) motions seeking dismissal for

want of jurisdiction and for failure to state a

claim upon which relief can be granted, de-

fendants’ motions to dismiss are granted,

and plaintiffs’ first and fourth causes of action

are hereby dismissed for failure to state a

claim upon which relief can be granted; and

the remaining claims are dismissed for lack

of jurisdiction over the subject matter. Copies

to: H. Charles Winans, Carl J. Suedhoff, Jr.,

William F. McNagny, Phil M. McNagny, Jr.,

Richard H. Finley 5/14/76. ww

Clerk’s Entry of Judgment filed. Francis T.

Grandys, Cierk by Wanda Webster, Deputy.

Copies to: Richard H. Finley, William F, Mc-

Nagny, Carl J. Suedhoff, Jr., H. Charles

Winans, Phil M. McNagny, Jr. 5/14/76. ww

Notice of Appeal filed by Linda Kay Spark-

man and Leo Sparkman, plaintiffs. Cert. of

Serv. es

6/10/76

6/21/76

7/ 7/76

7/18/77

8/ 7/77

8/ 8/77

8/ 9/77

Appeal Bond in the sum of $250.00 in cash

as security for costs on appeal to the Court of

Appeals for the Seventh Circuit, filed. es

Clerk’s Certification of Notice of Appeal filed.

Copies to Richard H. Finley, William F. Mc-

Nagny, Carl J. Suedhoff, Jr., H. Charles

Winans, Phil M. McNagny, Jr. 6/10/76. es

George E. Fruechtenicht enters appearance as

counsel for the defendant Harold D. Stump. es

File sent to U. S. Court of Appeals, Seventh

Circuit. es

Certified copy of the judgment and copy of

the opinion of the Court’ received from U. S.

- Court of Appeals. Taxed in favor of Linda

Kay Sparkman and Leo Sparkman, plaintiff-

appellants, total of $295.08. Judgment of

District Court is REVERSED, with costs and

REMANDED. Record to be returned at a

later date. es

Order for pre-trial conference entered. (SE)

Eschbach, Judge. Pre-trial conference is set

for Friday, October 7, 1977 at 1:00 p.m.

Copy to Richard H. Finley, George E.

Fruechtenicht, William F. McNagney, Carl J.

Suedhoff, Jr., H. Charles Winans 7/7/77. ww

Petition for Continuance of Pre-Trial Con-

ference filed. kh/slm

Pursuant to petition filed 8-8-77, the pre-trial

conference of this cause now scheduled for

10-7-77 is continued without date. Provided,

however, that counsel for the pltf herein shall

file a written status report with this. court

10/19/77 48

promptly upon notification of the ruling of

the Supreme Court of the U. S. on the petition

for writ of certiorari filed on behalf of the

defs herein. (SE) Eschbach, Judge. Copy to

Richard Finley, Wm. F. McNagny, Carl J.

Suedhoff, Charles Winans, Phil M. McNagny,

Jr. and Geo. E. Fruechtenicht 8-9-77. kh/slm

One volume of record received from the U. S.

Court of Appeals for the Seventh Circuit.

Certified copies of the docket sheets and orig-

inal record mailed to the U. S. Supreme Court,

Washington, D. C. this date. kh

UNITED STATES DISTRICT COURT

Northern District of Indiana

Fort Wayne Division

LINDA KAy SPARKMAN and 7

LEo SPARKMAN,

Plaintiffs,

vs.

Ora E, MCFARLIN, WARREN G. SUN-

DAY, HAROLD D. Stump, individu- ‘ Civil No. F 75-129

ally and as Judge of the Circuit COMPLAINT

Court of DeKalb County, Indiana,

JOHN H. HINES, M. D., JOHN C.

HARVEY, M. D., HARRY M. COVELL,

M. D., and DEKALB MEMORIAL

HosPITAL, INC., a corporation,

Defendants.

PRELIMINARY STATEMENT

This is an action at law to redress the deprivation of rights,

privileges and immunities secured to the Plaintiff, Linda Kay

Sparkman, by the First, Fourth, Fifth, Eighth, Ninth and

Fourteenth Amendments to the Constitution of the United States,

and 42 U, S. C. §§ 1983 and 1985[3]. Linda Kay Sparkman

seeks damages because of the deprivation of her rights and the

physical, mental and emotional injuries she has sustained due to

the actions of the Defendants in performing an operation of

sterilization upon her which infringed upon her rights to privacy,

due process of law and equal protection of the laws under the

First, Fourth, Fifth, Eighth, Ninth and Fourteenth Amendments

to the Constitution of the United States. The action of Plaintiff,

Leo Sparkman, for damages derives from the action of Plaintiff,

Linda Kay Sparkman.

A9 .

In addition, Plaintiff, Linda Kay Sparkman, seeks to have

this Court declare unconstitutional on its face and as applied

those sections of the Acts of 1961, ch. 91, §1, p. 178; as

amended by the Acts of 1973, P. L. 97, § 7, p. 566, “Medical or

surgical treatment of incompetent—Consent.” [Burns Indiana

Statutes Annotated, Code Edition, 16-8-3-1], which seek to

make binding on a minor a consent given by a parent to

improper and unnecessary surgery. This statute is challenged on

the grounds that it conflicts with the First, Fourth, Fifth, Eighth,

Ninth and Fourteenth Amendments to the Constitution of the

United States. .

JURISDICTION

[1] The amount in controversy exceeds, exclusive of interest

and costs, the sum of Ten Thousand Dollars ($10,000.00).

Jurisdiction is conferred on this Court by 28 U. S. C. §§ 1331

and 1343, and 42 U.S. C. §§ 1983 and 1985. Declaratory relief

is sought pursuant to 28 U. S. C. §§ 2201 and 2202.

PARTIES

{2} Plaintiff, Linda Kay Sparkman, is a United States citizen

and a resident of Noble County, Indiana. She is nineteen (19)

years old, born January 24, 1956. She is married and resides

with her husband, Leo Sparkman, in Kendallville, Indiana. Prior

to marriage, her name was Linda Kay Spitler.

{3] Plaintiff, Leo Sparkman, is a United States citizen and

a resident of Noble County, Indiana. He is twenty (20) years

old, was married to Linda Kay Sparkman on August 18, 1973,

and is presently residing with his wife in Kendallville, Indiana.

[4] Defendant, Ora E. McFarlin, is a citizen of the United

States, a resident of Noble County, Indiana, and is over the age

of twenty-one (21) years. She is the natural mother of Plaintiff,

Linda Kay Sparkman, and on the 9th day of July, 1971, she

executed a “Petition to Have Tubal Ligation Performed on Minor

Al0

and Indemnity Agreement” requestion that a tubal ligation be

performed upon her daughter.

{5] Defendant, Warren G. Sunday, a practicing attorney, is

a citizen of the United States, a resident of DeKalb County,

Indiana, and is over the age of twenty-one (21) years. He drafted

the Petition signed by Ora E. McFarlin and he witnessed, as a

Notary Public, the execution of the Petition by Ora E. McFarlin.

{6] Defendant, Harold D. Stump, is Judge of the Circuit

Court of DeKalb, Indiana, is a citizen of the United States, a

resident of DeKalb County, Indiana, and is over the age of

twenty-one (21) years. On July 9, 1971, he signed the “Petition

to Have Tubal Ligation Performed on Minor and Indemnity

Agreement” approving of the Petition as executed and requested

by Ora E. McFarlin. He is sued individually and in his official

capacity.

STATEMENT OF CLAIM

[7] Defendant, John H. Hines, a medical doctor, is a citizen

of the United States, a resident of DeKalb County, Indiana, and

is over the age of twenty-one (21) years. On July 16, 1971, he

performed an operation of sterilization (a tubal ligation) upon

Plaintiff, Linda Kay Sparkman.

{8} Defendant, John C. Harvey, a medical doctor, is a

citizen of the United States, a resident of DeKalb County,

Indiana, and is over the age of twenty-one (21) years. He

assisted, as anesthesiologist, in the performance of the tubal

ligation on Plaintiff, Linda Kay Sparkman.

[9] Defendant, Harry M. Covell, a medical doctor, is a

citizen of the United States, a resident of DeKalb County,

Indiana, and is over the age of twenty-one (21) years. He

assisted in the performance of the tubal ligation on Plaintiff,

Linda Kay Sparkman.

{10} Defendant, DeKalb Memorial Hospital, Inc., is a corpo-

ration existing under the laws of the State of Indiana. ‘The hos-

All

pitai is located in DeKalb County, Indiana. Linda Kay Sparkman

was sterilized at the DeKalb Memorial Hospital, Inc.

STATEMENT OF CLAIM

[11] Plaintiff, Linda Kay Sparkman, was fifteen (15) years

old on June 20, 1971, when she was admitted into the Defend-

ant, DeKalb Memorial Hospital, Inc., in Auburn, Indiana, by

Defendant, Ora E. McFarlin, under the care of Defendant,

John H. Hines, M. D., for the treatment of appendicitis. She was

discharged from the hospital by Dr. Hines on June 22, 1971,

as improved.

{12} On July 9, 1971, Defendant, Ora E. McFarlin, Linda

Kay Sparkman’s mother, executed a document entitled “Petition

to Have Tubal Ligation Performed on Minor and Indemnity

Agreement,” a copy of which document is attached hereto, made

a part hereof, and marked “Exhibit A.” This document was

prepared by Defendant, Warren G. Sunday, and he witnessed

the execution of the document by Defendant, Ora E. McFarlin.

[13] On July 9, 1971, Defendant, Harold D. Stump, Judge

of the Circuit Court of DeKalb County, Indiana, apparently

without a hearing, without Plaintiff, Linda Kay Sparkman,

present, and without representation on her behalf, signed the

Petition authorizing, under color of state law, the sterilization

of Plaintiff, Linda Kay Sparkman, by Defendant, John H. Hines,

M. D., at Defendant, DeKalb Memorial Hospital, Inc.

[14] On July 15, 1971, Linda Kay Sparkman was entered

into Defendant, DeKalb Memorial Hospital, Inc., by her mother,

Defendant, Ora E. McFarlin, ostensibly for the purpose of hav-

ing her appendix removed.

[15] On July 16, 1971, Defendant, John H. Hines, M.D.,

with the knowledge, approval, acquiescence, aid and assistance

of Defendants, John C. Harvey, M.D., Harry M. Covell, M.D.

and DeKalb Memorial Hospital, Inc., without first informing

her, performed an operation of sterilization upon Plaintiff, Linda

Kay Sparkman.

Al2.

[16] At the time of the operation, Defendant, John H. Hines,

M.D., said he was performing the sterilization on Linda Kay

Sparkman in accordance with a Court’s feelings and as a service

to the community in preventing the mentally slow Linda Kay

Sparkman from having children who would be wards of the

state.

[17] On July 20, 1971, Plaintiff, Linda Kay Sparkman, was

released from Defendant, DeKalb Memorial Hospital, Inc., still

unaware that she had been sterilized.

[18] On August 18, 1973 Linda Kay Sparkman was married

and a few months thereafter she asked her mother, Defendant

Ora E. McFarlin, why she was not getting pregnant. Plaintiff,

Linda Kay Sparkman, was toid by her mother at that time that

she could not have children then because her Fallopian tubes

had been tied, but that her tubes would come untied on their

own accord.

[19] Plaintiff, Linda Kay Sparkman, did not immediately

tell her husband what she had been told by her mcther, for

fear he would divorce her, but during or around February, 1974,

Linda Kay Sparkman did tell her husband that she might have

had her tubes tied when her appendix was removed. Plaintiff,

Linda Kay Sparkman, and her husband, Leo Sparkman, imme-

diately went to see Defendant, John H. Hines, M.D., around

February, 1974, and they were told by him that he did not do

anything to Linda Kay Sparkman but remove her appendix.

[20] Linda Kay Sparkman and Leo Sparkman began having

domestic problems in the late spring of 1975, partially because

of their inability to have children. They consulted an attorney

for help, and in May, 1975, their attorney wrote a letter to

Defendant, John H. Hines, M.D., requesting information about

the nature of the operation performed on Linda Kay Sparkman

in July, 1971. On May 29, 1975, in a letter written by Dr. Hines

to Plaintiffs’ attorney, Dr. Hines for the first time informed

Plaintiffs that on July 16, 1971, a tubal ligation had been per-

formed on Linda Kay Sparkman which would permanently

Al3.

prevent her from becoming pregnant and permanently deprive

her of the natural rights of motherhood.

First CAUSE OF ACTION.

[21] Defendants have deprived Plaintiff, Linda Kay Spark-

man, of the rights, privileges and immunities secured to her by

the First, Fourth, Fifth, Eighth, Ninth and Fourteenth Amend-

ments to the Constitution of the United States under color of

statutes, ordinances, regulations, customs, usages and practices

of the State of Indiana, in that their acts complained of:

Then, the Court in applying this Court’s decision in Donald-

son held:

(A) Are an arbitrary exercise of state power in violation

of the due process clause of the Fourteenth Amend-

ment to the Constitution of the United States;

(B) Did not provide procedural safeguards for Linda Kay

Sparkman and thereby deprived her of her rights with-

out due process of law in violation of the Fourteenth

Amendment to the Constitution of the United States;

tion of Linda Kay Sparkman in violation of her rights

protected by the First, Fourth, Fifth, Eighth, Ninth

and Fourteenth Amendments to the Constitution of

the United States;

(D) Constituted an invasion of privacy and the right to

control her reproductive functions in violation of the

Ninth and Fourteenth Amendments to the Constitu--

tion of the United States;

(E) Inflicted cruel and unusual punishment on Linda Kay

Sparkman by sterilizing her without any rational justi-

fication in violation of the Eighth and Fourteenth

Amendments to the Constitution of the United States;

(F) Were used as a method of punishing Linda Kay Spark-

man for being allegedly mentally slow and allegedly

Al4.

difficult to handle in violation of the First, Fourth,

Fifth, Ninth and Fourteenth Amendments to the

Constitution of the United States;

(G) Were taken in violation of the intent and procedure

of state regulations relating to sterilization in viola-

tion of the Fifth and Fourteenth Amendments to the

Constitution of the United States.

[22] Plaintiff, Linda Kay Sparkman, has suffered damages

therefrom and has suffered and continues to suffer physically,

mentally and emotionally from the wrongful action of Defend-

ants, individually and jointly, all to her damage in the sum of

Five Hundred Thousand Dollars ($500,000.00); and Plaintiff,

Linda Kay Sparkman, is entitled to receive punitive damages in

the sum of Two Hundred Fifty Thousand Dollars ($250,000.00).

SECOND CAUSE OF ACTION.

[23] Plaintiff, Linda Kay Sparkman, repeats and realleges

each and every allegation contained in Paragraphs 1 through 20

inclusive as if fully set forth herein.

[24] Performance of a sterilization operation upon Linda

Kay Sparkman by Defendant, John H. Hines, M.D., with the

knowledge, approval, acquiescence, aid and assistance of each

of the other Defendants, individually and jointly, when said

operation was in no manner necessary for the protection of

Linda Kay Sparkman’s iicalth and safety was an exercise in

malpractice by Defendants, and each of them.

{25] That as a result of the malpractice of Defendants, indi-

vidually and jointly, Plaintiff, Linda Kay Sparkman, has suffered

damages and continues to suffer physically, mentally and emo-

tionally, all to her damage in the sum of Five Hundred Thousand

Dollars ($500,000.00); and Plaintiff, Linda Kay Sparkman, is

entitled to receive punitive damages in the sum of Two Hundred

Fifty Thousand Dollars ($250,000.00).

AlS.

THIRD CAUSE OF ACTION.

[26] Plaintiff, Linda Kay Sparkman, repeats and realleges

each and every allegation contained in Paragraphs 1 through 20

inclusive as if fully set forth herein.

[27] Performance of a sterilization operation upon Linda

Kay Sparkman by Defendant, John H. Hines, M.D., with the

knowledge, approval, acquiescence, aid and assistance of each

of the other Defendants, individually and jointly, when said

operation was not consented to by Linda Kay Sparkman, and

said operation was not necessary for the health or safety of Linda

Kay Sparkman, constituted an assault and battery of Plaintiff,

Linda Kay Sparkman, by Defendants, thereby injuring Plaintiff,

Linda Kay Sparkman.

[28] That as a result of the assault and battery on Plaintiff,

Linda Kay Sparkman, by Defendants, individually and jointly,

she has suffered damages and continues to suffer physically,

mentally and emotionally, all to her damages in the sum of Five

Hundred Thousand Dollars ($500,000.00).

FOURTH CAUSE OF ACTION.

[29] Plaintiff, Linda Kay Sparkman, repeats and realleges

each and every allegation contained in Paragraphs 1 through 20

inclusive as if fully set forth herein.

[30] The actions of Defendants, Ora E. McFarlin, Warren

G. Sunday, Harold D. Stump, John H. Hines, M.D., John C.

Harvey, M.D., Harry M. Covell, M.D. and DeKalb Memorial

Hospital, Inc., in concert and with the common goal and result

of sterilizing Linda Kay Sparkman, deprived said Linda Kay

Sparkman of her constitutional and statutory rights to privacy,

to the equal protection of the laws and not to be deprived of life

or property without the due process of law. The concerted action

was taken against Linda Kay Sparkman because of her sex, her

marital status and of her allegedly low mental ability, all in

violation of 42 U. S. C. § 1985(3).

Al6.

[31] Plaintiff, Linda Kay Sparkman has suffered damages

therefrom and has suffered and continues to suffer physically

and mentally from the wrongful action of Defendants, indi-

vidually and jointly, all to her damage in the sum of Five

Hundred Thousand Dollars ($500,000); and Plaintiff, Linda

Kay Sparkman, is entitled to receive punitive damages in the

sum of Two Hundred Fifty Thousand Dollars ($250,000.00).

FIFTH CAUSE OF ACTION.

(32] Plaintiff, Leo Sparkman, repeats and realleges each and

every allegation contained in Paragraphs 1 through 31 inclusive

as if fully set forth herein.

{33] That as a result of the wrongful act of Defendants,

individually and jointly, in performing the operation of steriliza-

tion upon Linda Kay Sparkman, she is no longer able to bear

children, as a direct consequence of which, Plaintiff, Leo Spark-

man, is now and will be unable in the future to father a child

or children of his marriage to Linda Kay Sparkman, and his

comfort and happiness in her companionship have been and will

in the future be impaired, all to Plaintiff, Leo Sparkman’s gen-

eral damage in the sum of Five Hundred Thousand Dollars

($500,000.00).

WHEREFORE, Plaintiffs pray that this Court:

(A) Grant Plaintiff, Linda Kay Sparkman, compensatory

damages in the sum of Two Million Dollars ($2,000,000.00)

(B) Grant Plaintiff, Linda Kay Sparkman, punitive damages

in the sum of Seven Hundred Fifty Thousand Dollars

($750,000.00).

in the sum of Five Hundred Thousand Dollars ($500,000.00).

(D) Declare unconstitutional on its face and as applied

those sections of the Acts of 1961, ch. 91, §1, p. 178; as

amended by the Acts of 1973, P. L. 97, § 7, p. 566, “Medical

or surgical treatment of incompetent—Consent.” [Burns Indiana

Al?

Statutes Annotated, Code Edition, 16-8-3-1], which seek to make

binding on a minor a consent given by a parent to improper and

unnecessary surgery.

(E) Order Defendants, and each of them, to pay and reim-

burse Plaintiffs for Court costs and reasonable attorney's fees.

(F) Grant Plaintiffs such other and further relief to which

they may be entitled.

FINLEY & FINLEY,

/s/ By RICHARD H. FINLEY,

Richard H. Finley,

124 East Rush Street,

Kendallville, IN 46755,

(219) 347-0600,

Attorneys for Plaintiffs.

Plaintiffs hereby make demand for a trial by jury of the action

within pursuant to Rule 38 of the Federal Rules of Civil

Procedure.

/s/ RICHARD H. FINLEy,

Richard H. Finley.

Al8

UNITED STATES DiIsTRICT COURT.

* * [Caption Omitted in Printing) * *

ANSWER AND MOTIONS TO DISMISS

Comes now the defendant, Harold D. Stump, individually and

as Judge of the Circuit Court of DeKalb County, Indiana, and

for answer to plaintiffs’ complaint alleges and says that:

First Defense.

The complaint fails to state a claim against this defendant

either individually or as Judge of DeKalb Circuit Court, DeKalb

County, Indiana, upon which relief can be granted.

Second Defense.

1. Defendant Harold D. Stump denies the allegations con-

tained in paragraphs 1, 21, 22, 24, 25, 27, 28, 30, 31, and 33

of the complaint.

2. 2. Defendant Harold D. Stump admits the allegations

contained in paragraphs 2, 4, 5, and 12 of the complaint.

3. Defendant Harold D. Stump admits the allegations in

paragraphs 6 and 13 that he is Judge of the Circuit Court of

DeKalb County, Indiana, a citizen of the United States and a

resident of DeKalb County, Indiana, and over 21 years of age,

and denies the remaining allegations of paragraphs 6 and 13.

4. Defendant Harold D. Stump is without knowledge or

information sufficient to form a belief as to the truth of the alle-

gations in paragraphs 3, 7, 8, 9, 10, 11, 14, 15, 16, 17, 18, 19,

and 20 of the complaint.

5. Defendant Harold D. Stump in answer to paragraphs 23,

26, 29, and 32, re-alleges as is fully set forth herein his allega-

tions to paragraphs 1 through 20 of the complaint.

Third Defense.

Pursuant to IC 34-4-16.5-3, this defendant would not be

liable by reason of the fact that at all times mentioned in plain-

Al9

tiffs’ complaint this defendant was the duly appointed and acting

judge of the DeKalb Circuit Court and was performing a dis-

cretionary function, i.e., enforcement of a law, and acting under

authority of a statute.

Fourth Defense.

At the time the alleged wrongful acts set out in plaintiffs’

complaint occurred, the plaintiff, Leo Sparkman, was not mar-

ried to the plaintiff, Linda Kay Sparkman, and therefore no right

to bring an action for loss of consortium would lie in the plain-

tiff Leo Sparkman.

Fifth Defense.

The plaintiffs have no action against the defendant, Harold

D. Stump, as an individual, by reason of the fact that as an

individual this defendant would not be acting under color of law.

Sixth Defense.

The mother of the plaintiff, Linda Kay Sparkman, acting by

and for said plaintiff, petitioned for and consented to the alleged

operation of tubal ligation performed on the plaintiff, Linda

Kay Sparkman. The consent to the surgical treatment was given

by the mother of the plaintiff, Linda Kay Sparkman, pursuant

to IC 16-8-3-1, and pursuant to said act the consent was bind-

ing on the plaintiff, Linda Kay Sparkman.

Seventh Defense.

The right of action set forth in the complaint did not accrue

within two years next before the commencement of ‘his action.

Motions to Dismiss.

The defendant Harold D. Stump, individually and as Judge

of the Circuit Court of DeKalb County, Indiana, moves the

Court as follows:

A20

1. To dismiss the action as to the plaintiff, Leo Sparkman,

because the complaint shows on its face that said plaintiff has

no cause of action against this defendant upon which relief can

be granted.

2. To dismiss this action against this defendant as an indi-

vidual because unless this defendant was acting under color of

law the Court would have no jurisdiction of this defendant as

an individual under and pursuant to 42 U. S. C. § 1983 and

§ 1985.

Memorandum.

This defendant would concede that a husband has an inde-

pendent right of action for a tortious wrong done to his wife.

Burk v. Anderson et al., 232 Ind. 77, 109 N. E. 2d 407 (1952).

Even so, the right of action for consortium is founded on the

marital relationship which must exist at the time the alleged tort

is said to have occurred. 41 Am Jur 2d § 447, Husband and

Wife, note 8. This well-recognized rule is perhaps best summed

up in the oft quoted statement that you cannot marry a lawsuit.

It would appear from the pleadings that the present cause of

action is predicated on the Civil Rights Act which requires as

an element of the action that the defendant be acting under color

of law at the time the alleged wrong took place. It is respectfully

submitted that for that reason the action must fail against the

defendant, Harold D. Stump, as an individual.

GaTEs, GATES & MCNAGNY

By /s/ PHIL M. MCNAGny, JR.

Phil M. McNagny, Jr.

The Farmers Loan & Trust Co. Bldg.

Columbia City, IN 46725

Telephone: (219) 244-5175

Attorneys for Defendant,

Harold D. Stump

A21

UNITED STATES District CouRT

* * (Caption Omitted in Printing) * *

MOTION TO DISMISS

Comes now defendants, John H. Hines, M.D., Harry M.

Covell, M.D., and Warren G. Sunday, by their attorneys Barrett,

Barrett & McNagny and move the Court as follows:

1. For an order dismissing this action against these defend-

ants for the reason that the Court lacks subject matter jurisdic-

tion in the above captioned case pursuant to Rule 12(b) (1)

of the Federal Rules of Civil Procedure or, in the alternative;

2. For an order dismissing this action against these defend-

ants for the reason that the plaintiff has failed to state a claim

upon which relief can be granted pursuant to Rule 12(b) (6) of

the Federal Rules of Civil Procedure.

MEMORANDUM

(Deleted )

BARRETT, BARRETT & MCNAGNY

By: WILLIAM F. MCNAGNY

A22

UNITED STATES DisTRICT CouRT

* * (Caption Omitted in Printing] * *

ANSWER OF ORA E. McFARLIN

Comes now Ora E. McFarlin, counsel H. Charles Winans

and for answer to plaintiffs Complaint alleges and says:

1. General Denial

For answer to plaintiffs complaint says:

(1.) That the statements made in plaintiffs complaint “pre-

liminary statement” are untrue and inaccurate and that this

defendant denies the truth or accuracy of the statements made

therein; and further that this defendant denies the correctness

of the conclusions of fact and law stated therein; and further

that this defendant denies that this defendant has any liability

to the plaintiffs individually or separately for any act or omis-

sion whatsoever; and further that this defendant denies that

she has caused any infringement of constitutional right or

privilege of either of the plaintiffs, jointly or severally; and

further that the attempted application of the alleged constitu-

tional rights of the plaintiffs to the factual situation described is

erroneous, improper and not within the purview of the United

States Constitution or any judicial application thereof; and finally

this defendant denies that the plaintiffs or either of them have

by their complaint, the facts alleged therein, or the parties

named and served created a proper legal issue of constitutionality

of any statute of the State of Indiana.

Il. Specific Denial

Defendant Ora E. McFarlin denies specifically or is without

knowledge as to the accuracy of, each and every material allega-

tion of plaintiffs complaint in numbered paragraphs (1); (3);

A23

and (13) in so far as same alleges that Linda Kay Sparkman

was without representation, or that the judge acted only under

color of law; (14); (17); (18); (19); (20); (21); (22); (23);

(24); (25); (26); (27); (28); (29); (30); (31); (32); (33);

the defendant further denies that the plaintiffs or either of them

are entitled to any damages against this defendant compensatory

or punitive.

Ill. Admissions

Defendant Ora E. McFarlin admits specifically the allegations

in plaintiffs complaint in paragraphs numbered (2); (4); (11);

and (12).

IV. Not Applicable to This Defendant

Defendant Ora E. McFarlin denies that there is any applica-

tion whatsoever of the allegations in the following numbered

paragraphs to this defendant, to wit: (5); (6); (7); (8); (9);

(10); (15); (16).

WHEREFORE the defendant Ora E. McFarlin prays the

court to find against the plaintiffs jointly and severally and

adjudge that they take nothing by their complaint and that a

judgment be entered in favor of the defendant Ora E. McFarlin

for the costs of this action.

/s/ H. CHARLES WINANS

H. Charles Winans

Attorney for Defendant

Ora E. McFarlin

A24

UNITED STATES DISTRICT COURT

* * (Caption Omitted in Printing) * *

MOTION TO DISMISS

Come now the defendants, John C. Harvey, M.D., and

DeKalb Memorial Hospital, Inc., by their attorney, Carl J.

Suedhoff, Jr., and move the Court as follows:

1. For an order dismissing this action against these defend-

ants for the reason that the Court lacks subject matter jurisdic-

tion in the above captioned case pursuant to Rule 12(b)(1) of

the Federal Rules of Civil Procedure or, in the alternative;

2. For an order dismissing this action against these defend-

ants for the reason that the plaintiffs ha$ failed to state a claim

upon which relief can be granted pursuant to Rule 12(b) (6)

of the Federal Rules of Civil Procedure.

Respectfully submitted,

HuNT, SUEDHOFF, BORROR,

EILBACHER & LEE

By: /s/ CARL J. SUEDHOFF, JR.

Carl J. Suedhoff, Jr.

6th Floor, Lincoln Bank Tower

Fort Wayne, Indiana 46802

Telephone: 219 423-1311

Attorney for Defendants, John

C. Harvey, M.D. and De-

Kalb Memorial Hospital,

Inc.

A25

STATE OF INDIANA ;

COUNTY OF DEKALB -

PETITION TO HAVE TUBAL LIGATION PERFORMED

ON MINOR AND INDEMNITY AGREEMENT

Ora Spitler McFarland, being duly sworn upon her oath states

that she is the natural mother of and has custody of her daughter,

Linda Spitler, age fifteen (15) being born January 24, 1956 and

said daughter resides with her at 108 Iwo Street, Auburn,

DeKalb County, Indiana.

Affiant states that her daughter’s mentality is such that she is

considered to be somewhat retarded although she is attending or

has attended the public schools in DeKalb Central School System

and has been passed along with other children in her age level

even though she does not have what is considered normal mental

capabilities and intelligence. Further, that said affiant has had

problems in the home of said child as a result of said daughter

leaving the home on several occasions to associate with older

youth or young men and as a matter of fact having stayed

overnight with said youth or men and about which incidents said

affiant did not become aware of until after such incidents

occurred. As a result of this behavior and the mental capabilities

of said daughter, affiant believes that it is to the best interest of

said child that a Tubal Ligation be performed on said minor

daughter to prevent unfortunate circumstances to occur and since

it is impossible for the affiant as mother of said minor child to

maintain and control a continuous observation of the activities

of said daughter each and every day.

Said affiant does hereby in consideration of the Court of the

DeKalb Circuit Court approving the Tubal Ligation being

performed upon her minor daughter does hereby covsnant and

agree to indemnify and keep indemnified and hold Dr. John

Hines, Auburn, Indiana, who said affiant is requesting perform

said operation and the DeKalb Memorial Hospital, Auburn,

A26

Indiana, whereas said operation will be performed, harmless

from and against all or any matters or causes of action that

could or might arise as a result of the performing of said

Tubal Ligation.

IN WITNESS WHEREOF, said affiant, Ora Spitler McFarlin, has

hereunto subscribed her name this 9th day of July, 1971.

/s/ Ora SPITLER MCFARLIN

Ora Spitler McFarlin

Petitioner

Subscribed and sworn to before me this 9th day of July, 1971.

/8/ WARREN G. SUNDAY

Warren G. Sunday

Notary Public

My commission expires January 4, 1975.

I, Harold D. Stump, Judge of the DeKalb Circuit Court, do

hereby approve the above Petition by affidavit form on behalf

of Ora Spitler McFarlin, to have Tubal Ligation performed upon

her minor daughter, Linda Spitler, subject to said Ora Spitler

McFarlin covenanting and agreeing to indemnify and keep in-

demnified Dr. John Hines and the DeKalb Memorial Hospital

from any matters or causes of action arising therefrom.

/s/ HAROLp D. StuMP

Judge, DeKalb Circuit

Court

Dated July 9, 1971

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.