Guertin v. State of Michigan, 051619 FED6, 17-1699

Docket Nº:17-1699, 17-1745
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; Liane Shekter-Smith, Daniel Wyant, Stephen Busch, Michael Prysby, and Bradley Wurfel, Defendants-Appellants.
Attorney:Frederick A. Berg, Jr., Sheldon H. Klein, BUTZEL LONG, P.C., 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...
Judge Panel:Before: McKEAGUE, GRIFFIN, and WHITE, Circuit Judges. GIBBONS, J. (pg. 3), delivered a separate concurring opinion in which STRANCH, J., joined. SUTTON, J. (pp. 4-10), delivered a separate concurring opinion in which BUSH, J., joined. KETHLEDGE, J. (pp. 11-13), delivered a separate dissenting opi...
Case Date:May 16, 2019
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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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; Liane Shekter-Smith, Daniel Wyant, Stephen Busch, Michael Prysby, and Bradley Wurfel, Defendants-Appellants.

Nos. 17-1699, 17-1745

United States Court of Appeals, Sixth Circuit

May 16, 2019

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.

ON PETITION FOR REHEARING EN BANC:

Frederick A. Berg, Jr., Sheldon H. Klein, BUTZEL LONG, P.C., 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, Michigan, 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, CLARK HILL PLC, Lansing, Michigan, for Appellants in 17-1745.

ON RESPONSE:

Steven Hart, HART, MCLAUGHLIN & ELDRIDGE, LLC, Chicago, Illinois, John Sawin, SAWIN LAW FIRM, LTD., Chicago, Illinois, Paul T. Geske, MCGUIRE LAW, P.C., Chicago, Illinois, for Appellees.

ON BRIEF:

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

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

GIBBONS, J. (pg. 3), delivered a separate concurring opinion in which STRANCH, J., joined. SUTTON, J. (pp. 4-10), delivered a separate concurring opinion in which BUSH, J., joined. KETHLEDGE, J. (pp. 11-13), delivered a separate dissenting opinion in which THAPAR, LARSEN, NALBANDIAN, and MURPHY, JJ., joined.

ORDER

The court received petitions for rehearing en banc. The original panel has reviewed the petitions for rehearing and concludes that the issues raised in the petitions were fully considered upon the original submission and decision. The petitions then were circulated to the full court.1Less than a majority of the judges voted in favor of rehearing en banc.

Therefore, the petitions are denied.

CONCURRENCE

GIBBONS, Circuit Judge, concurring in the denial of rehearing en banc. I write separately to note that at this stage in the proceeding, it is better to find out what facts will eventually be before the district court, rather than to prematurely attempt to determine what law would apply to those hypothetical facts. In reading the 89-page complaint, this court could find many iterations of possible allegations. As Judge Sutton notes, some of those possible allegations would not permit finding a constitutional violation. Still, others would permit such a finding.

When considering a 12(b)(6) motion to dismiss, it is not our job to find the facts. Our job is, and only is, to determine whether any possible allegation plausibly states a claim under which relief can be granted. To decide any other issue would be judicial overreach. To discuss anything further would be an advisory opinion. Both the majority and dissent rushed to articulate a standard before the facts had been fully discovered.

The plaintiffs, with whom every opinion expresses sympathy, are entitled to the full benefit of the rule's broad standard. That means that, so long as they have pled plausible allegations that would constitute a constitutional violation, they are entitled to discovery. The 12(b)(6) standard "does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal [conduct]." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). We must "let district courts do what district courts do best-make factual findings-and steel ourselves to respect what they find." Taglieri v. Monasky, 907 F.3d 404, 408 (6th Cir. 2018) (en banc).

CONCURRENCE

SUTTON, Circuit Judge, concurring in the denial of rehearing en banc. If bad facts run the risk of making bad law, terrible facts run the risk of disfiguring law and silencing it altogether. In their complaint, the plaintiffs in this traumatic case plant the seeds of two potential stories. One speaks of local officials who bungled their response to a water crisis and in the process inadvertently polluted the water supply for the people of Flint, Michigan. The other speaks of local officials who intentionally poisoned Flint's water supply. In each telling, the claimants invoke the Due Process Clause of the Fourteenth Amendment. In each telling, the claimants invoke the most far-reaching and the least guide-posted permutation of that guarantee: substantive due process. And in each telling, the claimants seek hundreds of millions of dollars in retroactive money damages for the alleged constitutional violations.

Each story leads to a different end.

Negligent, even grossly negligent, conduct by local officials does not generally violate citizens' substantive due process rights. Least of all would these actions clearly violate such rights, as there is very little that is clear about substantive due process. If that's what happened here, this litigation needs to end-promptly. It is a distraction to the key goal (fixing Flint's water supply), and it is unfair to the public servants to boot. Their mistakes may deserve public criticism, but they do not deserve the tag of violating clearly established constitutional rights and what comes with it: exposure to crippling monetary judgments.

But an intentional or reckless effort to poison Flint's water supply is another matter. If that's what happened, the case must proceed.

So which account is the right account? It's too early to say. At the pleading stage of a case, plaintiffs are entitled to make plausible allegations in their complaint and use the discovery process to ferret out support for their preferred account through depositions, emails, and documents. At this early stage of the case, we must give the benefit of the doubt to the plaintiffs' preferred theory of the case and allow the discovery process to determine whether plausible allegations in their complaint mature into fact-supported...

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