Guertin v. State, Nos. 17-1698/1699/1745/1752/1769

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: GRIFFIN, Circuit Judge.
• Citation: 912 F.3d 907
• Parties: 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.
• Docket Number: Nos. 17-1698/1699/1745/1752/1769
• Decision Date: 04 January 2019

912 F.3d 907

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. 17-1698/1699/1745/1752/1769

United States Court of Appeals, Sixth Circuit.

Argued: June 6, 2018
Decided and Filed: January 4, 2019

GRIFFIN, Circuit Judge.

912 F.3d 915

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municipal water supply from the Detroit Water and Sewerage Department (DWSD) to the Flint River to be processed by an outdated and previously mothballed water treatment plant.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

912 F.3d 916

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 Atl. Corp. v. Twombly , 550 U.S. 544, 556–58, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

IV.

Qualified immunity shields public officials "from undue interference with their duties and from potentially disabling threats of liability." Harlow v. Fitzgerald , 457 U.S. 800, 806, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). It is not a "mere defense to liability"; the doctrine provides "immunity from suit ." Mitchell v. Forsyth , 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). This immunity "gives government officials breathing room to make reasonable but mistaken judgments about open legal questions," "protect[ing] all but the plainly incompetent or those who knowingly violate the law."

912 F.3d 917

Ashcroft v. al-Kidd , 563 U.S. 731, 743, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (internal quotation marks omitted). A plaintiff bears the burden of showing that a defendant is not entitled to qualified immunity. Bletz v. Gribble , 641 F.3d 743, 750 (6th Cir. 2011). To do so, a plaintiff must show "(1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct." al-Kidd , 563 U.S. at 735, 131 S.Ct. 2074 (internal quotation marks omitted). The district court concluded plaintiffs met this standard, and we review that decision de novo. Sutton v. Metro. Gov’t of Nashville & Davidson Cty ., 700 F.3d 865, 871 (6th Cir. 2012).

The assertion of qualified immunity at the motion-to-dismiss stage pulls a court in two, competing directions. On the one hand, the Supreme Court has repeatedly "stressed the importance of resolving immunity questions at the earliest possible stage in litigation." Pearson v. Callahan , 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (internal quotation marks omitted). But on the other, "[w]hen qualified immunity is asserted at the pleading stage," as defendants did here, "the precise factual basis for the plaintiff’s claim or claims may be hard to identify." Id. at 238–39, 129 S.Ct. 808 (citation omitted). We have thus cautioned that "it is generally inappropriate for a district court to grant a 12(b)(6) motion to dismiss on the basis of qualified immunity. Although ... entitlement to qualified immunity is a threshold question to be resolved at the earliest possible point, that point is usually summary judgment and not dismissal under Rule 12." Wesley v. Campbell , 779 F.3d 421, 433–34 (6th Cir. 2015) (internal citations, quotation marks, and brackets omitted). The reasoning for our general preference is straightforward: "Absent any factual development beyond the allegations in a complaint, a court cannot fairly tell whether a case is ‘obvious’ or ‘squarely governed’ by precedent, which prevents us from determining whether the facts of this case parallel a prior decision or not" for purposes of determining whether a right is clearly established. Evans-Marshall v. Bd. of Educ. of Tipp City Exempted Vill. Sch. Dist. , 428 F.3d 223, 235 (6th Cir. 2005) (Sutton, J., concurring) (brackets omitted).

V.

The Fourteenth Amendment provides that "[n]o State shall ... deprive any person of life, liberty, or property, without due process of law." U.S. CONST . amend. XIV, § 1. Flowing directly from the protections enshrined in the Magna Carta, see, e.g. , Lewellen v. Metro. Gov’t of Nashville & Davidson Cty. , 34 F.3d 345, 348 (6th Cir. 1994), the Due Process Clause...