Kanuszewski v. Michigan Department of Health and Human Services, 061019 FED6, 18-1896

Docket Nº:18-1896
Opinion Judge:CLAY, Circuit Judge.
Party Name:Adam Kanuszewski, et al., Plaintiffs-Appellants, v. Michigan Department of Health and Human Services; Nick Lyon; Sandip Shah; Sarah Lyon-Callo; Mary Kleyn; Michigan Neonatal BioBank, Incorporated, aka Michigan Neonatal Biorepository; Antonio Yancey, Defendants-Appellees.
Attorney:Philip L. Ellison, OUTSIDE LEGAL COUNSEL PLC, Hemlock, Michigan, for Appellants. Thomas F. Cavalier, WAYNE STATE UNIVERSITY, Detroit, Michigan, for Appellee Antonio Yancey in his individual capacity. Jeremy C. Kennedy, PEAR SPERLING EGGAN & DANIELS, Ann Arbor, Michigan, for Appellees Neonatal Bio...
Judge Panel:Before: MERRITT, CLAY, and ROGERS, Circuit Judges. ROGERS, Circuit Judge, concurring.
Case Date:June 10, 2019
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Adam Kanuszewski, et al., Plaintiffs-Appellants,

v.

Michigan Department of Health and Human Services; Nick Lyon; Sandip Shah; Sarah Lyon-Callo; Mary Kleyn; Michigan Neonatal BioBank, Incorporated, aka Michigan Neonatal Biorepository; Antonio Yancey, Defendants-Appellees.

No. 18-1896

United States Court of Appeals, Sixth Circuit

June 10, 2019

Argued: March 13, 2019

Appeal from the United States District Court for the Eastern District of Michigan at Bay City. No. 1:18-cv-10472-Thomas L. Ludington, District Judge.

ARGUED:

Philip L. Ellison, OUTSIDE LEGAL COUNSEL PLC, Hemlock, Michigan, for Appellants.

Thomas F. Cavalier, WAYNE STATE UNIVERSITY, Detroit, Michigan, for Appellee Antonio Yancey in his individual capacity. Jeremy C. Kennedy, PEAR SPERLING EGGAN & DANIELS, Ann Arbor, Michigan, for Appellees Neonatal BioBank and Antonio Yancey in his capacity as Director of the Michigan Neonatal BioBank, Inc. Aaron Levin, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellees Michigan Department of Health and Human Services, Nick Lyon, Sandip Shad, Sarah Lyon-Callo, and Mary Kleyn.

ON BRIEF:

Philip L. Ellison, OUTSIDE LEGAL COUNSEL PLC, Hemlock, Michigan, for Appellants.

Thomas F. Cavalier, WAYNE STATE UNIVERSITY, Detroit, Michigan, for Appellee Antonio Yancey in his individual capacity. Jeremy C. Kennedy, Jerold Lax, PEAR SPERLING EGGAN & DANIELS, Ann Arbor, Michigan, for Appellees Neonatal BioBank and Antonio Yancey in his capacity as Director of the Michigan Neonatal BioBank, Inc. Aaron Levin, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellees Michigan Department of Health and Human Services, Nick Lyon, Sandip Shad, Sarah Lyon-Callo, and Mary Kleyn.

Before: MERRITT, CLAY, and ROGERS, Circuit Judges.

OPINION

CLAY, Circuit Judge.

Plaintiffs Adam and Ashley Kanuszewski, Shannon Laporte, and Lynnette Wiegand, individually and as parent-guardians to their minor children, appeal the district court's grant of a motion to dismiss Plaintiffs' claims filed by Defendants Michigan Department of Health and Human Services and its employees1 being sued in their official and individual capacities; and Michigan Neonatal Biobank, Incorporated, and its Director, Dr. Antonio Yancey, sued in his official and individual capacities. For the reasons set forth below, we AFFIRM IN PART and REVERSE IN PART the district court's judgment and REMAND for further proceedings consistent with this opinion.

BACKGROUND

Plaintiffs' alleged constitutional violations concern Michigan's Newborn Screening Program ("NSP"). The NSP, which Michigan has operated since the 1960s, involves Defendant Michigan Department of Health and Human Services and its agents collecting blood samples (sometimes referred to as "blood spots") with a filter paper collection device known as a Dried Blood Spot card from nearly every newborn baby in Michigan, to test for various diseases. On April 30, 2018, Plaintiffs filed their First Amended Complaint for Injunctive and Declaratory Relief with Possible Money Damages for Constitutional Violations. According to the Complaint, 2 the facts are as follows:

Plaintiffs Adam Kanuszewski and Ashley Kanuszewski have three minor children born over the last eleven years. Plaintiff Shannon Laporte has two minor children born over the last eleven years. Plaintiff Lynnette Wiegand has four minor children born over the last eight years. The Complaint alleges, with respect to the NSP, that blood is drawn from newborns without the consent or knowledge of the newborns' parents. Once collected, the blood samples are tested for over fifty maladies, disorders, or diseases. Defendants retain the samples after screening them for these diseases; the samples are transferred to Defendant Michigan Neonatal Biobank, a nonprofit corporation, under the custody and control of Defendant Dr. Antonio Yancey, where they are stored for future use by the state. Plaintiffs allege that Defendants lack parental consent to retain, transfer, store, or otherwise use the children's blood samples after they have been screened for diseases.3

Plaintiffs allege that despite Defendants' assurances that all blood samples are secure and not identifiable to the individuals from whom they were taken, some samples kept in storage at the Neonatal Biobank have been given up pursuant to state court orders and some samples either have been or are in the process of being sold to third-party businesses and researchers. Plaintiffs do not allege that the children's specific blood samples have been sold or given up pursuant to a court order.

Plaintiffs allege that Defendants violated their substantive due process rights by not allowing them to decide whether to accept or reject the medical procedure in question prior to the collection of their babies' blood. Plaintiffs allege that Defendants "deprived the Infants [of] their liberty interest in their guardians self-making informed personal and private medical procedure decisions without due process of law." (R. 26, Complaint, Page ID# 325.) Plaintiffs allege that collecting the blood samples constituted an unconstitutional search or seizure under the Fourth Amendment. Plaintiffs allege that the transfer of the samples to, and the samples' storage with, Defendant Neonatal Biobank constituted a further, ongoing seizure for which the Neonatal Biobank was "a state actor or . . . otherwise liable via civil conspiracy under 42 U.S.C. § 1983 despite being formed as a non-profit domestic corporation." (R. 26, Complaint, Page ID# 328, 329.)

Plaintiffs seek declaratory judgment declaring Defendants' conduct violative of the Fourth and Fourteenth Amendments. Plaintiffs seek many forms of prospective injunctive relief, including the following: to halt "the illegal processes and procedures"; to halt continued possession and retention of all blood samples taken, transferred, or stored without informed consent; and to command Defendants "to destroy all data collected or extracted regarding the Infants, and return to the Parents all blood samples and spots of the Infants" that were obtained without informed consent. (R. 26, Complaint, Page ID# 329-32.) Finally, Plaintiffs seek damages in connection with Defendants' alleged constitutional violations.

Defendants filed motions to dismiss Plaintiffs' claims. After briefing, the district court granted Defendants' motions to dismiss and dismissed Plaintiffs' Complaint with prejudice. Plaintiffs then filed this timely appeal.

DISCUSSION

Plaintiffs allege that Defendants, through their operation of and participation in the NSP, have violated and continue to violate their substantive due process rights because blood is drawn from the children and retained without parental consent. Plaintiffs also allege that Defendants have violated and continue to violate the Fourth Amendment rights of the children because drawing the children's blood constituted a search for which a warrant was required. Before we analyze whether Defendants have violated Plaintiffs' constitutional rights, we will address the question of Plaintiffs' standing to bring these claims.

I. Standing

Defendants argue that Plaintiffs lack standing to bring their claims.

This Court reviews de novo determinations of standing. Shearson v. Holder, 725 F.3d 588, 592 (6th Cir. 2013). Because standing doctrine comes from Article III's case-or-controversy requirement, it is jurisdictional and must be addressed as a threshold matter. Nikolao v. Lyon, 875 F.3d 310, 315 (6th Cir. 2017). Standing requires Plaintiffs to show 1) that they have suffered an injury-in-fact that was 2) caused by Defendants' conduct and that 3) this Court can likely redress the injury with a decision for Plaintiffs. Id. at 315-16. Plaintiffs, as the parties invoking federal jurisdiction, bear the burden of proving the three elements of standing. Shearson, 725 F.3d at 592. At the pleadings stage, a plaintiff "must 'clearly . . . allege facts demonstrating' each element." Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016) (quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)).

The questions of standing in this case concern the injury-in-fact requirement. To satisfy this requirement, Plaintiffs must allege that they "have suffered an injury in fact, which is 'concrete, particularized, and actual or imminent.'" Shearson, 725 F.3d at 592 (quoting Clapper v. Amnesty Int'l USA, 568 U.S. 398, 409 (2013)). The threat of future harm can satisfy this requirement as long as there is a "substantial risk" that the harm will occur. Clapper, 568 U.S. at 414 n.5 (quoting Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 153 (2010). By the same token, "'[a]llegations of possible future injury' are not sufficient." Id. at 409 (emphasis in original) (quoting Whitmore...

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