912 F.3d 907 (6th Cir. 2019), 17-1698, Guertin v. State

Docket Nº:17-1698, 17-1699, 17-1745, 17-1752, 17-1769
Citation:912 F.3d 907
Opinion Judge:GRIFFIN, Circuit Judge.
Party Name:Shari GUERTIN, Individually and as Next Friend of Her Child, E.B., a Minor; Diogenes Muse-Cleveland, Plaintiffs-Appellees, v. STATE of Michigan, et al., Defendants, City of Flint, Michigan, Howard Croft, Darnell Earley, and Gerald Ambrose (17-1699); Liane Shekter-Smith, Daniel Wyant, Stephen Busch, Michael Prysby, and Bradley Wurfel (17-1745); ...
Attorney:Zachary C. Larsen, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellants in 17-1698. Frederick A. Berg, Jr., BUTZEL LONG, P.C., Detroit, Michigan, for Appellants in 17-1699. John J. Bursch, BURSCH LAW PLLC, Caledonia, Michigan, for Appellants in 17-1745. Michael S. Cafferty, ...
Judge Panel:Before: McKEAGUE, GRIFFIN, and WHITE, Circuit Judges. GRIFFIN, J., delivered the opinion of the court in which WHITE, J., joined, and McKEAGUE, J., joined in part. McKEAGUE, J. (pp. 941-63), delivered a separate opinion concurring in part and dissenting in part. McKEAGUE, Circuit Judge, concurrin...
Case Date:January 04, 2019
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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912 F.3d 907 (6th Cir. 2019)

Shari GUERTIN, Individually and as Next Friend of Her Child, E.B., a Minor; Diogenes Muse-Cleveland, Plaintiffs-Appellees,

v.

STATE of Michigan, et al., Defendants, City of Flint, Michigan, Howard Croft, Darnell Earley, and Gerald Ambrose (17-1699); Liane Shekter-Smith, Daniel Wyant, Stephen Busch, Michael Prysby, and Bradley Wurfel (17-1745); Nancy Peeler (17-1752); Robert Scott (17-1769); Eden Wells and Nick Lyon (17-1698), Defendants-Appellees.

Nos. 17-1698, 17-1699, 17-1745, 17-1752, 17-1769

United States Court of Appeals, Sixth Circuit

January 4, 2019

Argued: June 6, 2018

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Appeal from the United States District Court for the Eastern District of Michigan at Ann Arbor. No. 5:16-cv-12412— Judith E. Levy, District Judge.

ARGUED:

Zachary C. Larsen, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellants in 17-1698. Frederick A. Berg, Jr., BUTZEL LONG, P.C., Detroit, Michigan, for Appellants in 17-1699. John J. Bursch, BURSCH LAW PLLC, Caledonia, Michigan, for Appellants in 17-1745. Michael S. Cafferty, Detroit, Michigan, for Appellant in 17-1752. Kurt Krause, CHARTIER & NYAMFUKUDZA, P.L.C., East Lansing, Michigan, for Appellant in 17-1769. Paul T. Geske, MCGUIRE LAW, P.C., Chicago, Illinois, for Appellees.

Samuel R. Bagenstos, Ann Arbor, Michigan, for Amicus Curiae.

ON BRIEF:

Zachary C. Larsen, Richard S. Kuhl, Margaret A. Bettenhausen, Nathan A. Gambill, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellants in 17-1698. Frederick A. Berg, Jr., Sheldon H. Klein, BUTZEL LONG, P.C., Detroit, Michigan, Nikkiya T. Branch, PERKINS LAW GROUP, Detroit, Michigan, Alexander S. Rusek, WHITE LAW PLLC, Okemos, Michigan, William Y. Kim, CITY OF FLINT, Flint, Michigan, Barry A. Wolf, LAW OFFICE OF BARRY A. WOLF PLLC, Flint, Michigan, for Appellants in 17-1699. John J. Bursch, BURSCH LAW PLLC, Caledonia, Michigan, Philip A. Grashoff, Jr., KOTZ SANGSTER WYSOCKI P.C., Bloomfield Hills, Thaddeus E. Morgan, Michael H. Perry, FRASER TREBILCOCK, Lansing, Michigan, Charles E. Barbieri, Allison M. Collins, FOSTER, SWIFT, COLLINS & SMITH, P.C., Lansing, Michigan, Jay M. Berger, Michael J. Pattwell, Jordan S. Bolton, Christopher B. Clare, CLARK HILL PLC, Detroit, Michigan, for Appellants in 17-1745. Michael S. Cafferty, Detroit, Michigan, for Appellant in 17-1752. Mary Chartier, CHARTIER & NYAMFUKUDZA, P.L.C., East Lansing, Michigan, for Appellant in 17-1769. Paul T. Geske, MCGUIRE LAW, P.C., Chicago, Illinois, Steven Hart, HART, MCLAUGHLIN & ELDRIDGE, LLC, Chicago, Illinois, John Sawin, SAWIN LAW FIRM, LTD., Chicago, Illinois, for Appellees.

Samuel R. Bagenstos, Ann Arbor, Michigan, for Amicus Curiae. Richard S. Kuhl, Margaret A. Bettenhausen, Nathan A. Gambill, Zachary C. Larsen, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Amicus Curiae in 17-1699.

Before: McKEAGUE, GRIFFIN, and WHITE, Circuit Judges.

GRIFFIN, J., delivered the opinion of the court in which WHITE, J., joined, and McKEAGUE, J., joined in part. McKEAGUE, J. (pp. 941-63), delivered a separate opinion concurring in part and dissenting in part.

OPINION

GRIFFIN, Circuit Judge.

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This case arises out of the infamous government-created environmental disaster commonly known as the Flint Water Crisis. As a cost-saving measure until a new water authority was to become operational, public officials switched the City of Flint municipal water supply from the Detroit Water and Sewerage Department (DWSD) to the Flint River to be processed by an outdated and previously mothballed water treatment plant. With the approval of State of Michigan regulators and a professional engineering firm, on April 25, 2014, the City began dispensing drinking water to its customers without adding chemicals to counter the river water’s known corrosivity.

The harmful effects were as swift as they were severe. Within days, residents complained of foul smelling and tasting water. Within weeks, some residents’ hair began to fall out and their skin developed rashes. And within a year, there were positive tests for E. coli, a spike in deaths from Legionnaires’ disease, and reports of dangerously high blood-lead levels in Flint children. All of this resulted because the river water was 19 times more corrosive than the water pumped from Lake Huron by the DWSD, and because, without corrosion-control treatment, lead leached out of the lead-based service lines at alarming rates and found its way to the homes of Flint’s residents. The crisis was predictable, and preventable. See generally

Mason v. Lockwood, Andrews & Newnam, P.C., 842 F.3d 383, 387 (6th Cir. 2016).

I.

Plaintiffs Shari Guertin, her minor child E.B., and Diogenes Muse-Cleveland claim personal injuries and damages from drinking and bathing in the lead-contaminated water. Plaintiffs’ complaint asserted various claims against numerous state, city, and private-actor defendants. In response to motions to dismiss, the district court granted in part and denied in part the motions. In its written order, the court dismissed many of the original claims and original defendants. Plaintiffs have not filed a cross appeal. The defendants who were not dismissed now appeal and are collectively referred to as "defendants" throughout this opinion. The plaintiffs’ sole remaining claim is that defendants violated their right to bodily integrity as guaranteed by the Substantive Due Process Clause of the Fourteenth Amendment. They bring this claim pursuant to 42 U.S.C. § 1983, under which "an individual may bring a private cause of action against anyone who, under color of state law, deprives a person of rights, privileges, or immunities secured by the Constitution or conferred by federal statute." Wurzelbacher v. Jones-Kelley, 675 F.3d 580, 583 (6th Cir. 2012).

II.

On this appeal, we decide two substantial issues of public importance. First, viewing each defendant individually, did the district court err in denying defendants’ motions to dismiss based upon qualified immunity? Specifically, did plaintiffs plead a plausible Fourteenth Amendment

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Due Process violation of their right to bodily integrity and was such a constitutional right clearly established when the defendants acted? We join the United States District Court for the Eastern District of Michigan, In re Flint Water Cases, 329 F.Supp.3d 369 (E.D. Mich. 2018), vacated on other grounds (Nov. 9, 2018), and Guertin v. Michigan, 2017 WL 2418007 (E.D. Mich. June 4, 2017), the Michigan Court of Appeals, Mays v. Snyder, 323 Mich.App. 1, 916 N.W.2d 227 (2018), and the Michigan Court of Claims, Mays v. Snyder, No. 16-000017-MM (Mich. Ct.Cl. Oct. 26, 2016),1 in holding that plaintiffs have pled a plausible Due Process violation of bodily integrity regarding some of the defendants. For the reasons that follow, we affirm the district court’s order denying the motions to dismiss based upon qualified immunity regarding defendants Howard Croft, Darnell Earley, Gerald Ambrose, Liane Shekter-Smith,2 Stephen Busch, Michael Prysby, and Bradley Wurfel. However, we reverse the denial of the motions to dismiss regarding defendants Daniel Wyant, Nick Lyon, Eden Wells, Nancy Peeler, and Robert Scott because plaintiffs’ complaint alleges mere negligence, and not a constitutional violation against them.

The second issue is whether the City of Flint is entitled to Eleventh Amendment immunity from plaintiffs’ suit because the takeover by the State of Michigan of the City of Flint pursuant to Michigan’s "Emergency Manager" law transformed the City into an arm of the state. It is not, and we therefore affirm the district court’s same holding.

III.

We possess jurisdiction under 28 U.S.C. § 1291 and the "collateral-order doctrine," as defendants are appealing the denial of qualified and Eleventh Amendment immunity. Kaminski v. Coulter, 865 F.3d 339, 344 (6th Cir. 2017). The district court granted in part and denied in part defendants’ motions to dismiss plaintiffs’ complaint under Federal Rule of Civil Procedure 12(b)(6). Given this procedural posture, we construe the complaint in the light most favorable to plaintiffs, accept all well-pleaded factual allegations as true, and draw all reasonable inferences in plaintiffs’ favor. Crosby v. Univ. of Ky., 863 F.3d 545, 551-52 (6th Cir. 2017). But if we are to affirm, the factual allegations in plaintiffs’ complaint must plausibly allege a legally recognized constitutional claim. See generally Bell A. Corp. v. Twombly, 550 U.S. 544, 556-58, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

IV.

Qualified immunity shields public...

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