Anderson et al v. Wyant et al

BRIEF in support of MOTION to dismiss 74

W.D. Mich.December 23, 2016

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION EDWIN ANDERSON, et al., Plaintiffs, Case No. 1:16-cv-00874 v. Court of Claims Case No. 16-000127-MZ DANIEL WYANT, et al., Hon. Gordon J. Quist Defendants. Mag. Philip J. Green _____________________________________________________________________________/ BRIEF IN SUPPORT OF DANIEL WYANT’S MOTION TO DISMISS FIRST AMENDED COMPLAINT Case 1:16-cv-00874-GJQ-PJG ECF No. 75 filed 12/23/16 PageID.6880 Page 1 of 37 ii TABLE OF CONTENTS I. INTRODUCTION .....................................................................................................................1 II. BACKGROUND .......................................................................................................................1 A. The Organizational Structure of MDEQ........................................................................1 B. Plaintiffs’ Amended Complaint .....................................................................................2 III. STANDARD OF REVIEW .......................................................................................................3 IV. ARGUMENT.............................................................................................................................4 A. The Amended Complaint’s Improper Collective Pleading Violates Fed. R. Civ. P. 8 and Fails to State a Claim Against Mr. Wyant .......................................................4 B. The Claims are Precluded by the SDWA ......................................................................5 C. No Constitutional Right to Safe Drinking Water Exists................................................8 D. Mr. Wyant is Entitled to Absolute Immunity ................................................................9 E. Mr. Wyant is Entitled to Qualified Immunity..............................................................11 1. There is No Violation of a Constitutional Right..............................................12 2. The Alleged Right Was Not Clearly Established ............................................13 F. The § 1983 Claims Against Mr. Wyant Cannot be Based on Respondeat Superior or Supervisor Liability ..................................................................................14 G. Plaintiffs’ § 1983 Counts Fail to State a Claim Against Mr. Wyant ...........................16 1. The Amended Complaint Does Not Allege a Valid State-Created Danger Claim................................................................................................................16 a. The Plaintiffs’ State Created Danger Claim is not Based on an Affirmative Act by Mr. Wyant that Exposed Plaintiffs to a Violent Act by a Private Party .............................................................16 b. Plaintiffs Have Failed to Demonstrate that They Were Specifically at Risk, as Distinguished from a Risk that Affects the Public at Large ...............................................................................18 2. The Amended Complaint Does not State a Valid Bodily Integrity Claim ......18 H. Plaintiffs’ Claims Alleging That Mr. Wyant Made Inaccurate Statements are Barred by Absolute and Qualified Privilege................................................................20 Case 1:16-cv-00874-GJQ-PJG ECF No. 75 filed 12/23/16 PageID.6881 Page 2 of 37 iii 1. Mr. Wyant’s Communications are Protected by Absolute Privilege...............20 2. Mr. Wyant’s Communications are Protected by Qualified Privilege ..............22 V. CONCLUSION .......................................................................................................................24 Case 1:16-cv-00874-GJQ-PJG ECF No. 75 filed 12/23/16 PageID.6882 Page 3 of 37 iv STATEMENT OF QUESTIONS PRESENTED I. Should this Court dismiss the First Amended Complaint because its improper collective pleading violates Fed. R. Civ. P. 8 and fails to state a proper claim against Mr. Wyant? Defendant Daniel Wyant answers: Yes Plaintiffs answer: No II. Are Plaintiffs’ claims preempted by the federal Safe Drinking Water Act? Defendant Daniel Wyant answers: Yes Plaintiffs answer: No III. Are Plaintiffs’ claims barred because there is no protected, constitutional right to safe drinking water? Defendant Daniel Wyant answers: Yes Plaintiffs answer: No IV. Are Plaintiffs’ claims against Mr. Wyant barred by the doctrine of absolute immunity? Defendant Daniel Wyant answers: Yes Plaintiffs answer: No V. Are Plaintiffs’ claims against Mr. Wyant barred by the doctrine of qualified immunity? Defendant Daniel Wyant answers: Yes Plaintiffs answer: No VI. Are Plaintiffs’ claims barred because there is no respondeat superior or supervisory liability for Mr. Wyant? Defendant Daniel Wyant answers: Yes Plaintiffs answer: No VII. Does Plaintiffs’ First Amended Complaint fail to state a claim upon which relief can be granted against Mr. Wyant? Defendant Daniel Wyant answers: Yes Plaintiffs answer: No Case 1:16-cv-00874-GJQ-PJG ECF No. 75 filed 12/23/16 PageID.6883 Page 4 of 37 v VII. Are Mr. Wyant’s alleged statements protected by absolute and qualified privilege? Defendant Daniel Wyant answers: Yes Plaintiffs answer: No Case 1:16-cv-00874-GJQ-PJG ECF No. 75 filed 12/23/16 PageID.6884 Page 5 of 37 vi CONTROLLING AND MOST APPROPRIATE AUTHORITIES Rules Fed R. Civ. P. 8(a)(2) Fed. R. Civ. P. 12(b)(6) Statutes 42 U.S.C. § 1983 Cases Ashcroft v. Iqbal, 556 U.S. 662 (2009) [standard of review and group pleading] Terrance v. Northville Reg’l, 286 F.3d 834 (6th Cir. 2002) [group pleading] Boler v. Earley, 2016 U.S. Dist. LEXIS 51866 (E.D. Mich. 2016) [SDWA preemption] Mattoon v. City of Pittsfield, 980 F.2d 1 (1st Cir. 1992) [SDWA preemption] Coshow v. City of Escondido, 132 Cal. App. 4th 687 (2005) [no constitutional right to safe drinking water] Butz v. Economou, 438 U.S. 478 (1978) [absolute immunity] Klein v. Long, 275 F.3d 544 (6th Cir. 2001) [qualified immunity] Lillard v. Shelby County Bd. Of Educ., 76 F.3d 716 (6th Cir. 1996) [no respondeat superior liability] Jones v. Reynolds, 438 F.3d 685 (6th Cir. 2006) [state-created danger] Shehee v. Luttrell, 199 F.3d 295 (6th Cir. 1999) [bodily integrity] Kefgen v. Davidson, 241 Mich. App. 611 (2000) [absolute privilege] Gonyea v. Motor Parts Fed. Credit Union, 192 Mich. App. 74 (1991) [qualified privilege] Case 1:16-cv-00874-GJQ-PJG ECF No. 75 filed 12/23/16 PageID.6885 Page 6 of 37 vii INDEX OF AUTHORITIES Cases Anderson v. Creighton, 483 U.S. 635 (1987)...................................................................................................................... 13 Ashcroft v. Iqbal, 556 U.S. 662 (2009).................................................................................................................. 3, 15 Ayers v. Jackson, 189 N.J. Super. 561 (1983) ............................................................................................................. 9 B Street Commons, Inc. v. Bd. of County Comm'rs, 835 F.Supp. 1266 (D. Colo. 1993)................................................................................................ 10 Bacon v. Mich. Cent. RR Co., 66 Mich. 166 (1887) ..................................................................................................................... 22 Bah v. Mac's Convenience Stores, LLC, 37 N.E.3d 539 (Ind. Ct. App. 2015).............................................................................................. 23 Barr v. Matteo 360 U.S. 564 (1959)...................................................................................................................... 21 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).................................................................................................................... 3, 4 Bellamy v. Bradly, 729 F.2d. 416 (6th Cir. 1984) ....................................................................................................... 15 Boler v. Earley, 2016 U.S. Dist. LEXIS 51866 (E.D. Mich. 2016) ....................................................................... 5-7 Braley v. Pontiac, 906 F.2d 220 (6th Cir. 1990) ........................................................................................................ 20 Brown v. Indianapolis Housing Agency, 971 N.E.2d 181 (Ind. Ct. App. 2012)............................................................................................ 23 Buckley v. Fitzsimmons, 509 U.S. 259 (1993)...................................................................................................................... 10 Butz v. Economou, 438 U.S. 478 (1978).................................................................................................................. 9, 10 Case 1:16-cv-00874-GJQ-PJG ECF No. 75 filed 12/23/16 PageID.6886 Page 7 of 37 viii Callihan v. Sudimack 117 F.3d 1420 (6th Cir. 1997) ...................................................................................................... 20 Cartwright v. City of Marine City, 336 F.3d 487 (6th Cir. 2003) ................................................................................................... 16-17 Cassady v. Tackett, 938 F.2d 693 (6th Cir. 1991) ........................................................................................................ 20 Cheriee Gazette v. City of Pontiac, 41 F.3d 1061 (6th Cir. 1994) ........................................................................................................ 16 Choate's Air Conditioning & Heating, Inc. v. Light, Gas & Water Division of Memphis, 16 Fed. Appx. 323 (6th Cir. 2001)................................................................................................ 19 City of Rancho Palos Verdes v. Abrams, 544 U.S. 113 (2005).................................................................................................................... 5, 6 Cmtys. for Equity v. Michigan High Sch. Athletic Ass’n, 459 F.3d 676 (6th Cir. 2006) .......................................................................................................... 5 Collins v. City of Harker Heights, 503 U.S. 115 (1992)........................................................................................................................ 8 Concerned Citizens of Neb. v. U.S. NRC, 970 F.2d 421 (8th Cir. 1992) .......................................................................................................... 9 Cope v. Heltsley, 128 F.3d 452 (6th Cir. 1997) .................................................................................................. 13, 14 Couch v. Schultz, 193 Mich. App. 292 (1992)........................................................................................................... 20 Cruz-Erazo v. Rivera-Montanez, 212 F.3d 617 (1st Cir. 2000)......................................................................................................... 20 DeShaney v. Winnebago County Dep’t of Social Services, 489 U.S. 189 (1989)...................................................................................................................... 19 Ely v. Velde, 451 F.2d 1130 (4th Cir. 1971) ........................................................................................................ 9 Garvie v. Jackson, 845 F.2d 647 (6th Cir. 1988) ........................................................................................................ 11 Case 1:16-cv-00874-GJQ-PJG ECF No. 75 filed 12/23/16 PageID.6887 Page 8 of 37 ix Gasper v. La. Stadium & Exposition Dist., 418 F. Supp. 716 (E.D. La. 1976)................................................................................................... 9 Gonyea v. Motor Parts Fed. Credit Union, 192 Mich. App. 74 (1991)............................................................................................................. 22 Grace Church of Roaring Fork Valley v. Bd. of County Comm'rs, 742 F. Supp. 2d 1156 (D. Colo. 2010).......................................................................................... 10 Harlow v. Fitzgerald, 457 U.S. 800 (1982)...................................................................................................................... 11 Hays v. Jefferson County, 668 F.2d 869 (6th Cir. 1982) ........................................................................................................ 15 In re “Agent Orange” Product Liab. Litig., 475 F. Supp. 928 (E.D.N.Y. 1979) ................................................................................................. 9 In re Cincinnati Radiation Litig., 874 F. Supp. 796 (S.D. Ohio 1995) .............................................................................................. 14 Jackson v. Schultz, 429 F.3d 586 (6th Cir. 2005) ........................................................................................................ 17 Jones v. Reynolds, 438 F.3d 685 (6th Cir. 2006) .................................................................................................. 16, 18 Jones v. Union County, 296 F.3d 417 (6th Cir. 2002) ........................................................................................................ 17 Kallstrom v. City of Columbus, 136 F.3d 1055 (6th Cir. 1998) ...................................................................................................... 17 Kefgen v. Davidson, 241 Mich. App. 611 (2000)..................................................................................................... 20, 22 Klien v. Long, 275 F.3d 544 (6th Cir. 2001) ........................................................................................................ 11 Lakeshore Cmty. Hosp., Inc. v. Perry, 212 Mich. App. 396 (1995)........................................................................................................... 21 Light v. Haws, 472 F.3d 74 (3d Cir. 2007)............................................................................................................ 10 Case 1:16-cv-00874-GJQ-PJG ECF No. 75 filed 12/23/16 PageID.6888 Page 9 of 37 x Lillard v. Shelby County Bd. of Educ., 76 F.3d 716 (6th Cir. 1996) .................................................................................................... 15, 18 Maiden v. Rozwood, 461 Mich. 109 (1999) ................................................................................................................... 22 Mangan v. Brierre, 257 Fed. Appx. 525 (3d Cir. 2007)............................................................................................... 10 Mansfield Apartment Owners Ass'n v. City of Mansfield, 988 F.2d 1469 (6th Cir. 1993) ...................................................................................................... 20 Marcilis v. Twp. of Redford, 693 F.3d 589 (6th Cir. 2012) .......................................................................................................... 4 Mattoon v. City of Pittsfield, 980 F.2d 1 (1st Cir. 1992)............................................................................................................ 5-7 McConkie v. Nichols, 446 F.3d 258 (1st Cir. 2006)......................................................................................................... 20 McNall v. Frus, 336 Ill. App. 3d 904 (2002) .......................................................................................................... 22 Mertik v. Blalock, 983 F.2d 1353 (6th Cir. 1993) ................................................................................................ 18, 20 Meyer v. Hubbel, 117 Mich. App. 699 (1982)........................................................................................................... 21 Middlesex County Sewerage Auth. v. Nat’l Sea Clammers, 453 U.S. 1 (1981)........................................................................................................................ 5, 6 Midkiff v. Adams County Reg'l I Water Dist., 409 F.3d 758 (6th Cir. 2005) ........................................................................................................ 19 Missey v. Staunton, 2008 U.S. Dist. LEXIS 92546 (C.D. Ill. 2008)............................................................................... 7 Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978)...................................................................................................................... 15 Pearson v. Callahan, 555 U.S. 223 (2009)................................................................................................................ 11, 12 Case 1:16-cv-00874-GJQ-PJG ECF No. 75 filed 12/23/16 PageID.6889 Page 10 of 37 xi Pinkney v. Ohio Envtl. Prot. Agency, 375 F. Supp. 305 (N.D. Ohio 1974)................................................................................................ 9 Polk County v. Dodson, 454 U.S. 312 (1981)...................................................................................................................... 14 Pray v. City of Sandusky, 49 F.3d 1154 (6th Cir. 1995) ........................................................................................................ 13 Reed v. Knox County Dep't of Human Servs., 968 F. Supp. 1212 (S.D. Ohio 1997) ............................................................................................ 16 Rietcheck v. City of Arlington, 2006 WL 37843 (D. Ore. 2006)...................................................................................................... 7 Robertson v. Lucas, 753 F.3d 606 (6th Cir. 2014) ........................................................................................................ 11 Robertson v. Sichel, 127 U.S. 507 (1888)...................................................................................................................... 15 Rouse v. Caruso, 2011 U.S. Dist. LEXIS 25776 (E.D. Mich. 2011) ........................................................................ 15 Sargi v. Kent City Bd. Of Educ., 70 F.3d 907 (6th Cir. 1995) .......................................................................................................... 16 Saucier v. Katz, 533 U.S. 194 (2001)...................................................................................................................... 13 Schroder v. City of Fort Thomas, 412 F.3d 724 (6th Cir. 2005) ........................................................................................................ 17 Serino v. Dun & Bradstreet, Inc., 267 F. Supp. 396 (D.S.C. 1967).................................................................................................... 23 Sheets v. Mullins, 287 F.3d 581 (6th Cir. 2002) ........................................................................................................ 17 Shehee v. Luttrell, 199 F.3d 295 (6th Cir. 1999) ........................................................................................................ 19 Stewart v. Troutt, 73 Mich. App. 378 (1977)............................................................................................................. 21 Case 1:16-cv-00874-GJQ-PJG ECF No. 75 filed 12/23/16 PageID.6890 Page 11 of 37 xii Summers v. Leis, 368 F.3d 881 (6th Cir. 2004) ........................................................................................................ 15 Tanner v. Armco Steel Corp., 340 F. Supp. 532 (S.D. Tex. 1972) ................................................................................................. 9 Taylor v. Michigan Dep’t of Corrections, 69 F.3d 76 (6th Cir. 1995) ............................................................................................................ 15 Terrance v. Northville Reg’l Psychiatric Hosp., 286 F.3d 834 (6th Cir. 2002) .............................................................................................. 4, 12, 14 Thompson v. Sauk Vill., 2013 U.S. Dist. LEXIS 28085 (N.D. Ill. 2013) .............................................................................. 7 Trans Rail Am., Inc. v. Hubbard Twp., 478 Fed. Appx. 986 (6th Cir. 2012)................................................................................................ 4 Ungaretti & Harris, LLP v. ServiceMaster Co., 2010 U.S. Dist. LEXIS 53322 (N.D. Ill. 2010) ............................................................................ 22 Washington v. Glucksberg, 521 U.S. 702 (1997)........................................................................................................................ 8 Wilson v. Layne, 526 U.S. 603 (1999) ..................................................................................................................... 12 Wojcik v. City of Romulus, 257 F.3d 600 (6th Cir. 2001) .......................................................................................................... 8 Zola H. v. Snyder, 2013 U.S. Dist. LEXIS 125199 (E.D. Mich. 2013) ........................................................................ 4 Zombro v. Baltimore City Police Dep't, 868 F.2d 1364 (4th Cir. 1989) ........................................................................................................ 7 Statutes 42 U.S.C. § 1983.................................................................................................................... passim 42 U.S.C. § 300j.......................................................................................................................... 6, 7 Rules Fed. R. Civ. P. 8..................................................................................................................... passim Fed. R. Civ. P. 12................................................................................................................... passim Case 1:16-cv-00874-GJQ-PJG ECF No. 75 filed 12/23/16 PageID.6891 Page 12 of 37 1 I. INTRODUCTION Like the numerous other Flint water lawsuits filed before it, Plaintiffs’ First Amended Complaint fails to state viable claims against Daniel Wyant, the former Director of the Michigan Department of Environmental Quality (“MDEQ”). Despite the widely acknowledged fact that Mr. Wyant was not directly involved in the complicated water-chemistry decisions related to the oversight and management of Flint’s water system, Plaintiffs seek to hold him personally liable for their alleged damages. Plaintiffs’ claims teeter on the flawed premise that Mr. Wyant is liable for the alleged actions and inactions of over 1,000 MDEQ employees, simply because he was the MDEQ Director. Despite a lack of allegations showing actionable conduct by Mr. Wyant, Plaintiffs unjustly accuse Mr. Wyant of infringing on their constitutional rights to due process. Ultimately, none of Plaintiffs’ claims against Mr. Wyant are viable. The Amended Complaint violates the prohibition against group pleading by lumping Mr. Wyant together with 19 other Defendants, and fails to allege facts to support a single cognizable claim against him. Mr. Wyant should be dismissed because, inter alia: (1) Plaintiffs’ claims are precluded by the federal Safe Drinking Water Act (“SDWA”); (2) there is no constitutional right to safe drinking water; (3) Mr. Wyant is, as a matter of law, entitled to immunities; (4) Mr. Wyant cannot be held liable based on a theory of respondeat superior or supervisor liability; and (5) Plaintiffs have otherwise failed to plead their claims as to Mr. Wyant. II. BACKGROUND AND STATEMENT OF FACTS A. The Organizational Structure of MDEQ. The MDEQ is a department of Michigan’s executive branch. It is headed by a Director (here, Mr. Wyant), who is appointed by the Governor with advice and consent of the Senate. MDEQ employs more than 1,000 staff over 11 divisions and offices, each having a distinct Case 1:16-cv-00874-GJQ-PJG ECF No. 75 filed 12/23/16 PageID.6892 Page 13 of 37 2 structure and employing subject-matter experts to carry out the day-to-day functions. The Director promotes the administration of the MDEQ, allocating duties to its divisions and offices, announcing regulations, enlisting administrative law judges for contested hearings, managing environmental review boards, and serving on various boards and commissions. See Michigan Executive Order 1995-18. Relevantly, MDEQ’s Office of Drinking Water and Municipal Assistance (“ODWMA”) stands in the shoes of the U.S. Environmental Protection Agency (“EPA”) to oversee compliance of Michigan’s 11,000-plus water systems with the SDWA and Lead and Copper Rule (“LCR”).1 The ODWMA has nearly 100 engineers, managers, and administrative staff. EPA funds (in part) and oversees ODWMA’s work. Beyond working with EPA, ODWMA analysts and treatment specialists involved in the oversight of Flint’s water system reported to Stephen Busch (Lansing District Manager), who reported to Richard Benzie (Chief Field Operations Section), who reported to Liane Shekter-Smith (Division Chief), who reported to Jim Sygo (Deputy Director), who reported to Mr. Wyant (Director), who reported to the Governor’s Office. B. Plaintiffs’ Allegations Against Mr. Wyant The Amended Complaint is 75 pages and includes nearly 300 paragraphs. (Doc. # 53.) Yet the allegations against Mr. Wyant are relatively thin. The first mention of Mr. Wyant comes in paragraph 84, where Plaintiffs allege that Mr. Wyant was the MDEQ Director at relevant times, is being sued in his individual capacity, and that he somehow “participated in” decisions that led to their alleged damages. (Id. ¶ 84, Pg. ID 6657.) From there, Mr. Wyant’s name is predominantly mentioned in paragraphs alleging that others referenced him in emails, that he resigned, or that he: (1) received information via email 1 The owner of a water supply (here, Flint) is responsible for compliance with the SDWA and LCR. 42 U.S.C. §300(f); 40 C.F.R. §141.2; and MCL 325.1007(4). Case 1:16-cv-00874-GJQ-PJG ECF No. 75 filed 12/23/16 PageID.6893 Page 14 of 37 3 or other reporting, (2) reported information he received to other government officials; and (3) expressed his impression at the time that MDEQ had made a mistake (though not that he personally committed any misconduct). (Id. ¶¶ 107, 108, 135, 148, 165 194, 195, 200; Pg. ID 6665-84.) Mr. Wyant’s name is not mentioned again in any factual allegation in the Amended Complaint. And none of the Counts against him include particularized allegations, instead choosing to merely lump Mr. Wyant together with “Defendants.” III. STANDARD OF REVIEW To survive a Rule 12(b)(6) motion and to satisfy Rule 8(a)(2)’s requirement of “a short and plain statement of the claim showing that the pleader is entitled to relief”; each cause of action against each defendant must “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). For each claim, the pleading must include a “showing, rather than a blanket assertion, of entitlement to relief [because] [w]ithout some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only fair notice of the nature of the claim, but also the grounds on which the claim rests.” Id. at 555, n.3. Plausibility requires more than the possibility that a defendant acted unlawfully. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). “Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id. That is, more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action” are required. Twombly,550 U.S. at 555. And, naturally, mere conclusory allegations are not entitled to an assumption of truth. Iqbal, 556 U.S. at 679. Case 1:16-cv-00874-GJQ-PJG ECF No. 75 filed 12/23/16 PageID.6894 Page 15 of 37 4 IV. ARGUMENT A. The Amended Complaint’s Improper Collective Pleading Violates Fed. R. Civ. P. 8 and Fails to State a Claim Against Mr. Wyant. Rule 8 “give[s] the defendant [the right to] fair notice of what the ... claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555. The Sixth Circuit has found that, “[b]y lumping all defendants together in each claim and providing no factual basis to distinguish their conduct, [a] complaint fail[s] to satisfy the minimum standard” of Rule 8. Marcilis v. Redford, 693 F.3d 589, 596 (6th Cir. 2012) (citations omitted). Here, as discussed further below, the limited particularized allegations against Mr. Wyant are insufficient to support Plaintiffs’ claims, and Plaintiffs’ attempt to lump Mr. Wyant with 19 other Defendants is impermissible under Rule 8, particularly where the Sixth Circuit has “consistently held that:” [D]amage claims against governmental officials alleged to arise from violations of constitutional rights cannot be founded upon conclusory, vague or general allegations, but must instead, allege facts that show the existence of the asserted constitutional rights violation recited in the complaint and what each defendant did to violate the asserted right. This court has adopted the requirement that a plaintiff allege “with particularity” all material facts to be relied upon when asserting that a governmental official has violated a constitutional right. Terrance v. Northville Reg’l, 286 F.3d 834, 842 (6th Cir. 2002). Plaintiffs fail to meet this standard, where they merely allege that “Defendants” violated Plaintiffs’ due process rights. (See, e.g., Doc. # 53 ¶¶ 210-12, 219-20; Pg. ID 6686-89.) See also Trans Rail Am., Inc. v. Hubbard Twp., 478 Fed. Appx. 986, 988 (6th Cir. 2012) (unpublished) (upholding dismissal of amended complaint because its “fatal flaw” was in failing to “tie any factual allegations to the alleged constitutional violations”); Zola H. v. Snyder, 2013 U.S. Dist. LEXIS 125199, at *26 (E.D. Mich. 2013) (unpublished) (holding that when a complaint “fails to impute concrete acts to Case 1:16-cv-00874-GJQ-PJG ECF No. 75 filed 12/23/16 PageID.6895 Page 16 of 37 5 specific litigants, [it] fails to state a plausible claim”). For this reason alone, Mr. Wyant is entitled to dismissal. B. The Claims are Precluded by the SDWA. As the U.S. District Court for the Eastern District of Michigan held in Boler v. Early, 2016 U.S. Dist. LEXIS 51866 (E.D. Mich. April 19, 2016) (unpublished), Plaintiffs’ federal claims against Mr. Wyant are precluded by the federal SDWA. Constitutional remedies are not available for all violations of federal law. See Cmtys. for Equity v. Mich. High Sch. Athletic Ass’n, 459 F.3d 676, 681-83 (6th Cir. 2006). Instead, “[w]hen the remedial devices provided in a particular Act are sufficiently comprehensive, they may suffice to demonstrate congressional intent to preclude the remedy of suits under § 1983.” Middlesex County Sewerage Auth. v. Nat’l Sea Clammers, 453 U.S. 1, 20-21 (1981). “[T]he existence of a more restrictive private remedy for statutory violations has been the dividing line between those cases in which [the Supreme Court] ha[s] held that an action would lie under § 1983 and those in which [it] ha[s] held that it would not.” City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 121 (2005). Although the Sixth Circuit has not addressed SDWA preclusion, in Mattoon v. City of Pittsfield, 980 F.2d 1, 6 (1st Cir. 1992), the Court held that, “[c]omprehensive federal statutory schemes, such as the SDWA, preclude rights of action under section 1983 for alleged deprivations of constitutional rights in the field occupied by the federal statutory scheme.” Id. at 6. In Mattoon, the plaintiffs filed § 1983 claims for damages against the city, its contractors, and consultants after contracting giardiasis (commonly known as “beaver fever”) from contaminated drinking water. Id. at 2. The city had reopened a previously out-of-use reservoir to supply residents with water while other city facilities were being constructed. The reservoir became contaminated with the giardia lamblia pathogen due to problems with the chlorination system. Case 1:16-cv-00874-GJQ-PJG ECF No. 75 filed 12/23/16 PageID.6896 Page 17 of 37 6 Id. Despite several hundred cases of giardiasis being reported, the Mattoon court affirmed summary judgment of these claims, holding that the “SDWA enforcement scheme is closely analogous to other enforcement schemes found sufficiently comprehensive to evince a clear congressional intent to preempt relief under section 1983 . . . .” Id. at 6. In so holding, the Mattoon court compared the SDWA’s remedial scheme to similar Acts analyzed by the Supreme Court in Nat’l Sea Clammers, where the Court held that § 1983 claims were preempted by the Federal Water Pollution Control Act (“FWPCA”) and Marine Protection Research Act. Id. at 5 (citing Sea Clammers, 453 U.S. at 20). The Mattoon court noted that the SDWA “confers rights of actions on both the government and private citizens[,]” including private actions concerning the establishment of national drinking water regulations and citizen suits “against SDWA violators and against the [EPA] Administrator for failure to perform any non-discretionary duty under the SDWA.” Id. at 5-6 (citing 42 U.S.C. §§ 300j-7, 300j-8). The Mattoon court explained: [E]ven assuming a “fundamental constitutional right” to safe public drinking water, it would not alter the present analysis. Comprehensive federal statutory schemes, such as the SDWA, preclude rights of action under section 1983 for alleged deprivations of constitutional rights in the field occupied by the federal statutory scheme.” [Id. at 6 (emphasis added).]2 2 It is worth noting that the Mattoon court further found that the SDWA’s savings clause, 42 U.S.C. § 300j-8, did not save the claims from preemption. Id. at 6, n.6 (citing Sea Clammers, 453 U.S. at 14-16) (explaining that the Supreme Court “has held that the almost identically worded FWPCA savings clause, see 33 U.S.C. § 1365(a), bars relief under 42 U.S.C. § 1983”); see also City of Rancho Palos Verdes, 544 U.S. at 126 (holding that the savings clause of the Telecommunications Act of 1996 did not save the plaintiff’s § 1983 claims from preemption). Case 1:16-cv-00874-GJQ-PJG ECF No. 75 filed 12/23/16 PageID.6897 Page 18 of 37 7 In Boler, the court followed the Mattoon rationale, and held that §1983 claims were preempted by the SDWA. 3 Notably, the Boler court explained: Plaintiffs argue that they are not suing under the SDWA and that their constitutional claims do not rely upon alleged SDWA violations, citing Rietcheck v. City of Arlington, 2006 WL 37843 (D. Or. Jan. 4, 2006) . . . . This reasoning is not persuasive; the “state-created danger” the plaintiffs complained of [in Rietcheck] was not “tangentially” related to safe drinking water, it [was] solely about safe drinking water. See Rietcheck, 2006 WL 37843 at *4 (plaintiffs allege defendants “knowingly allowed a contaminated water source to be hooked up to Plaintiffs’ household water supply”). The label does not change the substance of the plaintiffs’ claims. Indeed, here the crux of each of Plaintiffs’ constitutional claims is that they have been deprived of “safe and potable water.” ... Plaintiffs’ allegations are addressed by regulations that have been promulgated by the EPA under the SDWA. . . . In addition, the safety of public water systems is a field occupied by the SDWA. Mattoon, 980 F.2d at 4. Accordingly, Plaintiffs’ federal remedy is under the SDWA, regardless of how their legal theories are framed in the complaint. See also Zombro, 868 F.2d at 1368-69 (plaintiff’s § 1983 claim preempted by the ADEA, even though plaintiff did not attempt to assert an ADEA claim). [Id. at *8-9 (emphasis added).] Here, as in Boler, any labels that Plaintiffs apply to their federal claims do not change their substance - the crux is that all Defendants have deprived Plaintiffs of safe and potable water. In these situations, Congress has limited private remedies under the SDWA to citizen suits for enforcement, and not private suits for compensatory or punitive damages. See 42 U.S.C. § 300j-8(a). The SDWA is sufficiently comprehensive and provides a more restrictive private remedy for statutory violations. Accordingly, because the SDWA preempts Plaintiffs’ § 1983 claims, they should be dismissed. 3 At least two other courts have relied on Mattoon and dismissed § 1983 claims based on SDWA preemption. See Thompson v. Sauk Vill., 2013 U.S. Dist. LEXIS 28085, at *2-3 (N.D. Ill. 2013) (unpublished) (finding that plaintiff’s § 1983 claims based on a village’s failure to remedy contaminated drinking water were preempted by the SDWA); Missey v. Staunton, 2008 U.S. Dist. LEXIS 92546, at *2-3 (C.D. Ill. 2008) (unpublished) (finding that plaintiff’s § 1983 claims based on a city and public officials’ failure to warn residents of contaminated drinking water after a boil order was issued were preempted by the SDWA). Case 1:16-cv-00874-GJQ-PJG ECF No. 75 filed 12/23/16 PageID.6898 Page 19 of 37 8 C. No Constitutional Right to Safe Drinking Water Exists. Even if the substantive due process claims against Mr. Wyant could avoid preemption (they cannot), they must nevertheless be dismissed because there is no protected, constitutional right to safe drinking water. Without a protected liberty or property interest, Plaintiffs cannot establish the first threshold requirement for all § 1983 substantive due process claims. 42 U.S.C. § 1983 “provides a remedy against ‘any person’ who, under color of state law, deprives another of rights protected by the Constitution.” Collins v. City of Harker Heights, 503 U.S. 115, 120 (1992). Such claims face a two-part test: the Court must first determine whether the alleged interest is a protected liberty or property interest, and, if so, whether the alleged deprivation contravened notions of due process. Wojcik v. City of Romulus, 257 F.3d 600, 609 (6th Cir. 2001). For the first prong, the Supreme Court has held that the “Due Process Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition, [and] so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997) (citation omitted). The right must be “implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Id. at 721 (citation omitted). Beyond these firmly entrenched and recognized rights, however, a court must proceed with extreme caution. Collins, 503 U.S. at 125 (“judicial self-restraint requires … the utmost care whenever we are asked to break new ground in this field”). In this case, Plaintiffs’ constitutional claims against Mr. Wyant hinge on a right to clean drinking water, a right that at least one court has rejected. Coshow v. Escondido, 132 Cal. App. 4th 687, 709 (2005) (holding “the right to bodily integrity is not coextensive with the right to be Case 1:16-cv-00874-GJQ-PJG ECF No. 75 filed 12/23/16 PageID.6899 Page 20 of 37 9 free from … an allegedly contaminated substance in the public drinking water”). And courts have rejected similar claims based on a right to a contaminant-free environment.4 For this independent reason, the constitutional claims fail and should be dismissed. D. Mr. Wyant is Entitled to Absolute Immunity. Plaintiffs’ § 1983 claims against Mr. Wyant are also barred by his absolute immunity under federal law. In the seminal case of Butz v. Economou, 438 U.S. 478, 514-15 (1978), the Court explained that persons “performing adjudicatory functions within a federal agency are entitled to absolute immunity from damages liability for their judicial acts” and that “agency officials performing certain functions analogous to those of a prosecutor should be able to claim absolute immunity with respect to such acts.” The Court further explained, “[t]he decision to initiate administrative proceedings against an individual ... is very much like the prosecutor’s decision to initiate or move forward with a criminal prosecution.” Id. These same principles apply to state agency officials sued under § 1983. Id. at 504 (“[W]e deem it untenable to draw a distinction for purposes of immunity law between suits brought against state officials under § 1983 and suits brought directly under the Constitution against federal officials”). Following Butz, the Supreme Court has clarified that courts should take a “functional approach” in determining whether absolute immunity protects an official from liability, and 4 See, e.g., Ely v. Velde, 451 F.2d 1130, 1139 (4th Cir. 1971) (noting that the right to “constitutional protection for the environment” has not been established); Concerned Citizens of Neb. v. U.S. NRC, 970 F.2d 421, 426-27 (8th Cir. 1992) (holding that there was no “right to an environment free of any non-natural radiation”); Pinkney v. Ohio Envtl. Prot. Agency, 375 F. Supp. 305, 310 (N.D. Ohio 1974) (finding that the court was “unable to rule that the right to a healthful environment is a fundamental right under the Constitution”); In re “Agent Orange” Product Liab. Litig., 475 F. Supp. 928, 934 (E.D.N.Y. 1979); Gasper v. La. Stadium & Exposition Dist., 418 F. Supp. 716, 721 (E.D. La. 1976); Tanner v. Armco Steel Corp., 340 F. Supp. 532, 537 (S.D. Tex. 1972); Ayers v. Jackson, 189 N.J. Super. 561, 573-74; 461 A.2d 184 (1983) (citation omitted). Case 1:16-cv-00874-GJQ-PJG ECF No. 75 filed 12/23/16 PageID.6900 Page 21 of 37 10 focus on “the nature of the function performed, not the identity of the actor who performed it.” Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993). While most absolute immunity cases concern judges and prosecutors, numerous courts have held that these same principles barred claims against state officials performing similar functions. For example, in Mangan v. Brierre, 257 Fed. Appx. 525 (3d Cir. 2007), the Third Circuit held that a Regional Director from the Pennsylvania Department of Environmental Protection (“DEP”), who was sued in his individual capacity, had absolute immunity from claims related to an administrative order he issued against the plaintiff. See also Light v. Haws, 472 F.3d 74, 77- 80 (3d Cir. 2007) (citing Butz for the proposition that agency officials, like prosecutors, “have broad discretion in deciding whether a proceeding should be brought” and holding that a DEP employee was therefore protected from liability by the doctrine of absolute immunity); B Street Commons, Inc. v. Bd. of Cnty. Comm'rs, 835 F. Supp. 1266 (D. Colo. 1993) (holding that county commissioners were entitled to absolute immunity in a suit arising out of a permit denial); Grace Church of Roaring Fork Valley v. Bd. of Cnty. Comm’rs, 742 F. Supp. 2d 1156 (D. Colo. 2010) (holding that county commissioners were entitled to absolute immunity for denying a special review application). In this case, the Amended Complaint is silent with respect to any actions Mr. Wyant personally took that could give rise to liability under § 1983, but generally alleges that MDEQ’s ODWMA improperly approved Flint’s request to switch water sources and failed to initiate enforcement proceedings against Flint for purported violations of the SDWA. Because the functions which Plaintiffs claim were wrongfully performed are adjudicatory and prosecutorial in nature, Mr. Wyant is entitled to absolute immunity under Butz and its progeny. Thus, for this independent reason, Plaintiffs’ § 1983 claims should be dismissed. Case 1:16-cv-00874-GJQ-PJG ECF No. 75 filed 12/23/16 PageID.6901 Page 22 of 37 11 E. Mr. Wyant is Entitled to Qualified Immunity. Not only are Plaintiffs’ claims barred by absolute immunity, they are also barred by the doctrine of qualified immunity. As the Sixth Circuit has explained, “[a] government official performing a discretionary function is entitled to qualified immunity in his personal capacity where the official’s action (or failure to act) does not violate constitutional standards in light of clearly established law at the time the official acted.” Barber v. Salem, 953 F.2d 232, 236 (6th Cir. 1992); see also Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (same). Notably, Mr. Wyant need not be infallible. Rather, he is immune even if mistaken about laws, facts, or mixed questions thereof. See, e.g., Pearson v. Callahan, 555 U.S. 223, 231 (2009); Key v. Grayson, 179 F.3d 996, 1000-02 (6th Cir. 1999). In short, he is immune absent allegations that he himself violated Plaintiffs’ constitutional rights. Robertson v. Lucas, 753 F.3d 606, 615 (6th Cir. 2014). And qualified immunity is more than a mere defense, because, “its purpose is to shield the official from suit altogether, saving him or her from the burdens of discovery and costs of trial.” Klien v. Long, 275 F.3d 544, 550 (6th Cir. 2001) (emphasis added). The objective is to achieve resolution “prior to discovery.” Pearson, 555 U.S. at 231 (citations omitted). Thus, the Supreme Court has consistently “stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Id. at 232. Qualified immunity is a question of law for the court. See Garvie v. Jackson, 845 F.2d 647, 649 (6th Cir. 1988). To resolve this question of law, the Supreme Court has established a two part test for qualified immunity: [1] whether the facts that a plaintiff has alleged or shown make out a violation of a constitutional right . . . . [2] whether the right at issue was “clearly established” at the time of defendant’s alleged misconduct. Case 1:16-cv-00874-GJQ-PJG ECF No. 75 filed 12/23/16 PageID.6902 Page 23 of 37 12 Pearson, 555 U.S. at 232 (internal citations omitted). The federal courts have discretion in deciding which prong to analyze first. Id. at 236. Importantly, however, once a defendant pleads qualified immunity and makes a preliminary showing that he was acting in his discretionary authority, the burden shifts to the plaintiff to “establish that the defendant’s conduct violated a right so clearly established that any official in his position would have clearly understood that he was under an affirmative duty to refrain from such conduct.” Gardenshire v. Schubert, 205 F.3d 303, 311 (6th Cir. 2000). 1. There is No Violation of a Constitutional Right. The Court must first “determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the alleged violation.” Wilson v. Layne, 526 U.S. 603, 609 (1999) (citation omitted). As discussed, there is no constitutional right to contaminant-free drinking water. And even if such a right existed, Plaintiffs cannot allege that Mr. Wyant violated the Constitution. As the Sixth Circuit has noted: This court has consistently held that damage claims against governmental officials alleged to arise from violations of constitutional rights cannot be founded upon conclusory, vague or general allegations, but must instead, allege facts that show the existence of the asserted constitutional rights violation recited in the complaint and what each defendant did to violate the asserted right. [Terrance, 286 F.3d at 842 (citation omitted).] As to Mr. Wyant, Plaintiffs do not plead a single affirmative act by which he allegedly violated their constitutional rights. They merely allege that he received and conveyed information from and to other government officials, and that he expressed his impression at the time that MDEQ had made a mistake. None of these actions caused Flint to switch water supplies or contaminated the water supply, and Mr. Wyant is entitled to qualified immunity. Case 1:16-cv-00874-GJQ-PJG ECF No. 75 filed 12/23/16 PageID.6903 Page 24 of 37 13 Moreover, as MDEQ Director, Mr. Wyant was responsible for managing over a thousand MDEQ employees who, in turn, are managing an assortment of Michigan’s largest environmental and public health risks. As recognized by the United States Court of Appeals for the Second Circuit, a fear of personal liability should not be allowed to inhibit or control policy decisions of government agencies. Lombardi v. Whitman, 485 F.3d 73, 84 (2d Cir. 2007) (“[S]ubstantive due process liability should not be allowed to inhibit or control policy decisions of government agencies, even if some decisions could be made to seem gravely erroneous in retrospect”). The same public policy considerations found in Lombardi apply in this case, and this Court should not allow Plaintiffs to hold Mr. Wyant liable based solely on his status as MDEQ’s Director, particularly when Plaintiffs have failed to demonstrate the violation of a constitutional right. 2. The Alleged Right Was Not Clearly Established. As for the second prong, a right is only “clearly established” if “it would be clear to a reasonable [official] that his conduct was unlawful in the situation he confronted,” which is an objective inquiry. Saucier v. Katz, 533 U.S. 194, 202 (2001). “This standard requires the courts to examine the asserted right at a relatively high level of specificity. The right must have been ‘clearly established’ not just in an abstract sense, but in a ‘particularized’ sense.” Cope v. Heltsley, 128 F.3d 452, 458 (6th Cir. 1997) (citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “Claims of immunity are thus to be analyzed ‘on a fact-specific, case-by-case basis to determine whether a reasonable official in the defendant['s] position could have believed that his conduct was lawful . . . .’” Cope, 128 F.3d at 459 (citing Pray v. City of Sandusky, 49 F.3d 1154, 1158 (6th Cir. 1995)). The burden of proof “rests squarely on the plaintiff.” Id. “For qualified immunity to be surrendered, pre-existing law must dictate . . . the conclusion for every like- Case 1:16-cv-00874-GJQ-PJG ECF No. 75 filed 12/23/16 PageID.6904 Page 25 of 37 14 situated, reasonable government agent that what defendant is doing violates federal law in the circumstances.” Id. (citation omitted) (emphasis in original). Plaintiffs fail to plead how Mr. Wyant’s acts compel the conclusion, objectively, that he violated a clearly established right. Here again, conclusory assertions are insufficient. Terrance, 286 F.3d at 842. There is absolutely no support for the proposition that pre-existing law would dictate the conclusion that the limited conduct attributed to Mr. Wyant in Plaintiffs’ Amended Complaint violated federal law. Cope, 128 F.3d at 458. In short, against precedent finding no right to clean drinking water, Plaintiffs cannot meet the burden to plead with specificity facts establishing that such a right was clear to Mr. Wyant. For this further reason, he is entitled to immunity and dismissal of the federal claims. F. The § 1983 Claims Against Mr. Wyant Cannot be Based on Respondeat Superior or Supervisor Liability. At most, it appears that Plaintiffs’ claims against Mr. Wyant are based on the premise that as the former MDEQ Director, he is liable for the alleged wrongful action or inaction of all MDEQ employees regardless of his direct involvement. However, under centuries’ old and controlling Supreme Court (and Sixth Circuit) precedent, a § 1983 claim cannot be based on respondeat superior or supervisor liability. While there is § 1983 liability for an individual government actor’s own violations of constitutional rights, there is no liability for violations of duties of care arising out of tort law. See, e.g., In re Cincinnati Radiation Litig., 874 F. Supp. 796, 810 (S.D. Ohio 1995). As with Bivens actions, § 1983 claims cannot be premised upon the doctrine of respondeat superior. See Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981). Of course, the Polk Court simply reaffirmed the Supreme Court’s centuries-old precedent, that “[a] public officer or agent is not responsible for the misfeasances or positive wrongs, or for the nonfeasances, or Case 1:16-cv-00874-GJQ-PJG ECF No. 75 filed 12/23/16 PageID.6905 Page 26 of 37 15 negligences, or omissions of duty, of the sub-agents or servants or other persons properly employed by or under him, in the discharge of his official duties.” Robertson v. Sichel, 127 U.S. 507, 515-516 (1888).5 It is under this standard that the Sixth Circuit has recognized that even knowledge of a subordinate’s alleged misconduct is insufficient. See, e.g., Lillard v. Shelby Cnty. Bd. of Educ., 76 F.3d 716, 728 (6th Cir. 1996). Likewise, the Sixth Circuit has recognized that even a failure to act on such knowledge is inadequate. See, e.g., Summers v. Leis, 368 F.3d 881, 888 (6th Cir. 2004). In short, without allegations sufficient to state a claim that Mr. Wyant directly participated in specific actionable misconduct (for the purpose of infringing Plaintiffs’ rights), the Amended Complaint cannot state a § 1983 claim against Mr. Wyant on any supervisory theory. See, e.g., Bellamy v. Bradly, 729 F.2d. 416 (6th Cir. 1984); Iqbal, 556 U.S. at 677 (recognizing that the phrase “supervisory liability” in this context is really a “misnomer,” because masters only answer for their own misconduct as opposed to the wrongful acts of their servants).6 In short, because there is no respondeat superior liability under § 1983, and the Amended Complaint lacks any allegation regarding specific individual conduct by Mr. Wyant that violated Plaintiffs’ rights, there exists yet another independent reason to dismiss the claims against Mr. Wyant. 5 See also Rouse v. Caruso, 2011 U.S. Dist LEXIS 25776 (E.D. Mich. 2011) (unpublished) (recognizing that liability under § 1983 cannot be based on a theory of respondeat superior); Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691; 98 S. Ct. 2018 (1978) (finding no vicarious liability for a municipal “person” under § 1983). 6 See also Taylor v. Mich. Dep’t of Corr., 69 F.3d 76, 81 (6th Cir. 1995); Hays v. Jefferson Cnty., 668 F.2d 869 (6th Cir. 1982), cert. denied, 459 U.S. 833 (1982) (ruling that a supervisory official’s failure to supervise, control, or train the offending individual is not actionable, unless the supervisor “either encouraged the specific incident of misconduct or in some other way directly participated in it”). Case 1:16-cv-00874-GJQ-PJG ECF No. 75 filed 12/23/16 PageID.6906 Page 27 of 37 16 G. Plaintiffs’ § 1983 Counts Fail to State a Claim Against Mr. Wyant. Even if Plaintiffs’ § 1983 counts were not preempted by the SDWA (they are) and even if Mr. Wyant was not immune from these counts (he is), Plaintiffs have still failed to state viable § 1983 claims against Mr. Wyant. 1. The Amended Complaint Does Not Allege a Valid State-Created Danger Claim. In the Sixth Circuit, a plaintiff alleging a state created danger must show: (1) an affirmative act by the state which either created or increased the risk that the plaintiff would be exposed to an act of violence by a third party; (2) a special danger to the plaintiff wherein the state's actions placed the plaintiff specifically at risk, as distinguished from a risk that affects the public at large; and (3) the state knew or should have known that its actions specifically endangered the plaintiff. Jones v. Reynolds, 438 F.3d 685, 690 (6th Cir. 2006) (quoting Cartwright v. City of Marine City, 336 F.3d 487, 493 (6th Cir. 2003)). Plaintiffs cannot meet this standard. a. The Plaintiffs’ State Created Danger Claim is not Based on an Affirmative Act by Mr. Wyant that Exposed Plaintiffs to a Violent Act by a Private Party. To satisfy the first prong of the Jones test, the Amended Complaint must demonstrate that Mr. Wyant committed some affirmative act that created or increased the risk of exposure to an act of violence by a third party. Notably, the Sixth Circuit has explained: [A] failure to act is not an affirmative act under the state-created danger theory. See, e.g., Sargi v. Kent City Bd. Of Educ., 70 F.3d 907, 912-13 (6th Cir. 1995) (failing to provide bus drivers with a plan for managing emergencies, taking seizure victim home without medical intervention, failing to maintain communication devices on a bus, and failing to tell the bus driver of the student's medical condition were not affirmative acts); Cheriee Gazette v. City of Pontiac, 41 F.3d 1061, 1065 (failing to rescue kidnap victim and lying about the case to the victim's family were not affirmative acts); Reed v. Knox County Dep't of Human Servs., 968 F. Supp. 1212, 1220-22 (S.D. Ohio 1997) (failing to inform family of foster child's violent history, placing child in home, and failing to remove child were not affirmative acts). Case 1:16-cv-00874-GJQ-PJG ECF No. 75 filed 12/23/16 PageID.6907 Page 28 of 37 17 Cartwright, 336 F.3d at 493. See also Schroder v. City of Fort Thomas, 412 F.3d 724, 728-29 (6th Cir. 2005) (failing to enforce speed limit was not an affirmative act); Jones v. Union Cnty., 296 F.3d 417, 431 (6th Cir. 2002) (failing to serve protection order on abusive spouse was not an affirmative act); Sheets v. Mullins, 287 F.3d 581, 588-89 (6th Cir. 2002) (failing to investigate domestic disturbance call was not an affirmative act). The Amended Complaint does not specify a single affirmative act by Mr. Wyant sufficient to satisfy the state created danger test. The Amended Complaint does not (and cannot) point to an act by Mr. Wyant that forced the City of Flint to switch to the Flint River as its primary source of drinking water. Nor can the Amended Complaint point to any affirmative act by Mr. Wyant that contaminated Plaintiffs’ water supply. Plaintiffs’ claims, which are completely devoid of any allegations stating Mr. Wyant’s affirmative actions, fail to satisfy the Jones test. Moreover, the only scenarios in which the Sixth Circuit has permitted a state created danger claim are those involving “private acts of violence.” Jackson v. Schultz, 429 F.3d 586, 591 (6th Cir. 2005) (citing Kallstrom v. City of Columbus, 136 F.3d 1055, 1066 (6th Cir. 1998) (rejecting a state created danger claim because the complaint did not show that the defendants’ actions made “violence by a private party” more probable)). Here, the alleged damages were not the result of violent acts by a private third party. Instead, the alleged damages stem from the use and consumption of unsafe drinking water. Thus, even if the Amended Complaint could allege an affirmative act by Mr. Wyant, the claims still fail. For this standalone reason, the state created danger claim against Mr. Wyant should be dismissed. Case 1:16-cv-00874-GJQ-PJG ECF No. 75 filed 12/23/16 PageID.6908 Page 29 of 37 18 b. Plaintiffs Have Failed to Demonstrate that They Were Specifically at Risk, as Distinguished from a Risk that Affects the Public at Large. Even if the Amended Complaint could point to some affirmative act by Mr. Wyant, the state created danger claim still fails because the Amended Complaint alleges damage to the public at large (the City of Flint), rather than a specific individual. In the Sixth Circuit, a claim for state created danger is allowed only where “the government could have specified whom it was putting at risk, nearly to the point of naming the possible victim or victims.” Jones, 438 F.3d at 696 (citations omitted) (emphasis added). More specifically, the Jones court explained that “[w]hen by comparison the victim was not identifiable at the time of the alleged state action/inaction, [the Sixth Circuit] ha[s] held that a § 1983 suit may not be brought under the ‘state created danger’ theory.” Id. at 697 (citations omitted). Despite their conclusory allegations to the contrary, Plaintiffs offer no factual allegations demonstrating that they were somehow specifically at risk as compared to the public at large. Nor do they suggest that Mr. Wyant could somehow specify whom his theoretical/unidentified acts were putting at risk. Thus, Plaintiffs cannot satisfy the second prong of the Jones test either, and the state created danger claim should be dismissed. 2. The Amended Complaint Does not State a Valid Bodily Integrity Claim. Bodily integrity claims are “official acts which may occur regardless of the procedural safeguards accompanying them. The test for … claims of this type is whether the conduct complained of ‘shocks the conscience’ of the court.” Lillard v. Shelby County, 76 F.3d 716, 724- 25 (6th Cir. 1996) (quoting Mertik v. Blalock, 983 F.2d 1353, 1367-69 (6th Cir. 1993)). Plaintiffs’ bodily integrity claim fails for a myriad of reasons. Case 1:16-cv-00874-GJQ-PJG ECF No. 75 filed 12/23/16 PageID.6909 Page 30 of 37 19 First, as discussed, at least one court has rejected the notion that the right to bodily integrity encompasses a right to safe drinking water. See Coshow, supra, (holding that while there is a “fundamental right to bodily integrity, there simply is no such right in the context of public drinking water”). Second, the Due Process Clause “is phrased as a limitation on the State’s power to act, not as a guarantee of certain minimal levels of safety and security.” DeShaney v. Winnebago Cty. Dep’t of Soc. Serv., 489 U.S. 189, 195 (1989). That is, “[i]t is not enough to allege that a government actor failed to protect an individual from a known danger of bodily harm or failed to warn the individual of that danger.” Id. (citation omitted).7 Thus, the claim cannot hinge on a duty to protect Plaintiffs from risks of contaminated water or to prevent drinking water from being contaminated. Instead, the claim requires an affirmative act by Mr. Wyant that violated Plaintiffs’ bodily integrity and shocks the conscience. As discussed, Plaintiffs do not allege such acts against Mr. Wyant, and the bodily integrity claim therefore fails. Lastly, failing to assure clean water does not “shock[] the conscience.” Midkiff v. Adams County Reg’l I Water Dist., 409 F.3d 758, 768 (6th Cir. 2005) (finding termination of water service without notice, even if improper and perhaps unlawful, does not shock the conscience). For decades, the Sixth Circuit has held that physical force is a prerequisite to a shocks the conscience finding. See, e.g., Choate's Air Conditioning & Heating, Inc. v. Light, Gas & Water Div. of Memphis, 16 Fed. Appx. 323, 329 (6th Cir. 2001) (unpublished) (acknowledging that the 7 See also Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (holding that § 1983 liability cannot be based upon a ‘mere failure to act’”) (citation omitted). Case 1:16-cv-00874-GJQ-PJG ECF No. 75 filed 12/23/16 PageID.6910 Page 31 of 37 20 Sixth Circuit “continue[s] to recognize [shocks the conscience due process claims] in the exclusive context of cases involving physical abuse”).8 Here, Plaintiffs have not (and cannot) allege that Mr. Wyant physically abused Plaintiffs in any way. Instead, they merely allege that he received and conveyed information from and to other government officials, and that he expressed his impression at the time that MDEQ had made a mistake. See Mertik, 983 F.2d at 1367-68 (holding that banning a hockey coach from an ice rink and publishing false statements that the coach was sexually abusing minor students was not conduct that shocks the conscience).9 These allegations do not support a valid bodily integrity claim. H. Plaintiffs’ Claims Alleging That Mr. Wyant Made Inaccurate Statements are Barred by Absolute and Qualified Privilege. 1. Mr. Wyant’s Communications are Protected by Absolute Privilege. The communications attributed to Mr. Wyant related to matters of public concern, were made in the course of performing an official duty and, therefore, are protected by absolute privilege. “Communications deemed absolutely privileged are not actionable, even when spoken with malice.” Kefgen v. Davidson, 241 Mich. App. 611, 618 (2000) (citing Couch v. Schultz, 193 Mich. App. 292, 294 (1992)). The doctrine applies “to communications regarding matters of 8 See also Callihan v. Sudimack, 117 F.3d 1420 (6th Cir. 1997) (“This Circuit has resisted application of the ‘shocks the conscience’ standard to § 1983 cases not involving physical force”); Mansfield Apartment Owners Ass'n v. City of Mansfield, 988 F.2d 1469, 1478 (6th Cir. 1993) (same); Cassady v. Tackett, 938 F.2d 693, 698 (6th Cir. 1991) (“Since the present case . . . does not concern physical abuse, we are reluctant to apply the 'shock the conscience' standard”); Braley v. Pontiac, 906 F.2d 220, 225 (6th Cir. 1990) (“Applying the ‘shock the conscience’ test in an area other than excessive force . . . is problematic. . . . We doubt the utility of such a standard outside the realm of physical abuse[.]”). 9 See also McConkie v. Nichols, 446 F.3d 258, 261-62 (1st Cir. 2006) (holding that a police officer’s lies to a suspect that the suspect’s statements would remain confidential during interrogation did not shock the conscience); Cruz-Erazo v. Rivera-Montanez, 212 F.3d 617, 623 (1st Cir. 2000) (holding that police officers deliberately lying in official documents and committing perjury during court proceedings did not shock the conscience). Case 1:16-cv-00874-GJQ-PJG ECF No. 75 filed 12/23/16 PageID.6911 Page 32 of 37 21 public concern.” Id. The purpose of the privilege is “to allow public officials to speak freely in the course of their official duties without fear of legal repercussions.” Id. at 621. The challenged statements must be “made in the course of carrying out an official duty.” Stewart v. Troutt, 73 Mich. App. 378, 384 (1977). Although the absolute privilege has generally been applied to communications made during legislative and judicial proceedings and to communications by military and naval officers, the doctrine has been extended to communications made by a public official in furtherance of an official duty during proceedings of quasi-legislative and quasi-judicial bodies.10 Numerous courts outside Michigan, including the U.S. Supreme Court, have extended the privilege to high-ranking state and federal officials. See, e.g., Barr v. Matteo, 360 U.S. 564, 572- 75 (1959) (statements made to the press by director of federal agency were absolutely privileged); Restatement (Second) of Torts § 591, Illus. C (1979) (“All of the state courts that have considered the question have agreed that the absolute privilege . . . protects the superior officers of the state governments, including at least the governor, the attorney-general or the heads of state departments whose rank is the equivalent of cabinet rank in the Federal Government”). Although absolute privilege is most frequently applied as a defense to claims for defamation, courts have recognized the doctrine as a defense to other claims. See, e.g., Lakeshore Cmty. Hosp., Inc. v. Perry, 212 Mich. App. 396, 401 (1995) (tortious interference with business relations); Meyer v. Hubbell, 117 Mich. App. 699, 710-11 (1982) (interference with prospective 10 See, e.g., Powers v. Vaughan, 312 Mich. 297 (1945) (report issued by the Detroit Department of Health was absolutely privileged); Bolton v. Walker, 197 Mich. 699 (1917) (words spoken by an ex officio member of the Board of Estimates of the City of Detroit during a discussion of a matter of public concern at a regular meeting of the board were absolutely privileged); Trebilcock v. Anderson, 117 Mich. 39, 40 (1898) (holding that statements of Mayor supporting veto and published in the newspaper were absolutely privileged). Case 1:16-cv-00874-GJQ-PJG ECF No. 75 filed 12/23/16 PageID.6912 Page 33 of 37 22 economic advantage); Maiden v. Rozwood, 461 Mich. 109, 135 (1999) (gross negligence); McNall v. Frus, 336 Ill. App. 3d 904, 906-07 (2002) (negligence); Ungaretti & Harris, LLP v. ServiceMaster Co., 2010 U.S. Dist. LEXIS 53322 (N.D. Ill. 2010) (unpublished) (breach of fiduciary duty). Here, the communications attributable to Mr. Wyant, a high-ranking public official, concern his understanding of MDEQ’s quasi-adjudicatory, prosecutorial, and legislative functions in regard to the oversight of Flint’s pubic water system. Such matters are undoubtedly matters of public concern, and Mr. Wyant’s alleged statements were made while carrying out his duties as Director. Absolute privilege thus shields Mr. Wyant’s statements from Plaintiffs’ claims. Moreover, the public policy underlying the privilege is readily apparent in this case because, without the privilege, officials like Mr. Wyant cannot “speak freely in the course of their official duties without fear of legal repercussion.” Kefgen, 241 Mich. App. at 621. 2. Mr. Wyant’s Communications are Protected by Qualified Privilege. In addition to absolute privilege, Mr. Wyant’s communications are also protected by qualified privilege. Bacon v. Mich. Cent RR Co., 66 Mich. 166, 170 (1887) (explaining that the qualified privilege exists in a much larger number of cases than absolute privilege). A qualified privilege exists when a defendant can show the following elements: (1) good faith; (2) an interest to be upheld; (3) a statement limited in its scope to this purpose; (4) a proper occasion; and (5) publication in a proper manner and to proper parties only. Gonyea v. Motor Parts Fed. Credit Union, 192 Mich. App. 74, 79 (1991). To overcome a qualified privilege, a plaintiff must show that the statement was made with actual malice. Id. at 79-80. Like the doctrine of absolute privilege, the doctrine of qualified privilege has frequently been used as a defense to claims for defamation, but it has also been frequently recognized as a Case 1:16-cv-00874-GJQ-PJG ECF No. 75 filed 12/23/16 PageID.6913 Page 34 of 37 23 defense to other claims. See, e.g., Brown v. Indianapolis Housing Agency, 971 N.E.2d 181, 186 (Ind. Ct. App. 2012); Bah v. Mac's Convenience Stores, LLC, 37 N.E.3d 539, 548 (Ind. Ct. App. 2015) (noting that qualified privilege has been used as a defense to claims for negligence, intentional infliction of emotional distress, and false imprisonment); Serino v. Dun & Bradstreet, Inc., 267 F. Supp. 396, 399 (D.S.C. 1967) (noting that “all of the policy reasons giving rise to the defense of qualified privilege in a defamation action are equally applicable in a negligence action”); Restatement (Second) of Torts §§ 594-598A (1979) (setting forth different applications of the privilege). Here, the statements allegedly made by Mr. Wyant were made under conditions that satisfy all five (5) of these elements. Plaintiffs do not allege or demonstrate any facts that show malice on Mr. Wyant’s part, and his statements were made in good faith. They concerned his understanding of issues related to the Flint water supply, an interest appropriately shared by the parties involved. Mr. Wyant’s statements were appropriately limited in their scope and purpose. They did not concern any other topic and were meant to convey his understanding of this important issue. Mr. Wyant’s statements were made at a proper occasion, in a proper manner, and to proper parties. Other government personnel had questions concerning Flint’s water supply, and it was proper for Mr. Wyant, as MDEQ’s Director, to communicate on these issues. The parties involved, government personnel receiving Mr. Wyant’s e-mails, were proper parties with whom Mr. Wyant could discuss these issues, and there was nothing improper about the manner in which Mr. Wyant made these communications. The qualified privilege therefore applies to protect these statements, providing yet one more independent basis for dismissal of each of the claims asserted against Mr. Wyant, as those claims all teeter on Mr. Wyant’s alleged statements. Case 1:16-cv-00874-GJQ-PJG ECF No. 75 filed 12/23/16 PageID.6914 Page 35 of 37 24 V. CONCLUSION The Amended Complaint’s claims against Mr. Wyant are anemic and wrongly aimed. In short, for the myriad of independent reasons discussed above, Mr. Wyant is not a proper party to this case and should be dismissed with prejudice. Therefore, Mr. Wyant respectfully requests that this Honorable Court enter an order: (1) granting this Motion to Dismiss, (2) dismissing the claims against him with prejudice, (3) granting him all applicable costs and attorneys’ fees, and (4) granting him such further or different relief deemed appropriate. Respectfully submitted, CLARK HILL PLC By: s/Michael J. Pattwell Dated: December 23, 2016 Jay M. Berger (P57663) Michael J. Pattwell (P72419) Christopher B. Clare (39582) 500 Woodward Avenue, Suite 3500 Detroit, Michigan 48226-3435 (313) 965-8300 jberger@clarkhill.com mpattwell@clarkhill.com cclare@clarkhill.com Counsel for Daniel Wyant Case 1:16-cv-00874-GJQ-PJG ECF No. 75 filed 12/23/16 PageID.6915 Page 36 of 37 25 CERTIFICATE OF SERVICE I hereby certify that on December 23, 2016, I electronically filed the above with the Clerk of Court using the CM/ECF System, which will provide electronic copies to counsel of record. s/ Christopher B. Clare 205234506.2 53499/198760 Case 1:16-cv-00874-GJQ-PJG ECF No. 75 filed 12/23/16 PageID.6916 Page 37 of 37 EXHIBIT A Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6917 Page 1 of 77 Page 1 of 4 Boler v. Early Christopher Bradley Clare Positive As of: December 22, 2016 9:05 PM EST Boler v. Early United States District Court for the Eastern District of Michigan, Southern Division April 19, 2016, Decided; April 19, 2016, Filed Case No. 16-10323 Reporter 2016 U.S. Dist. LEXIS 51866 *; 46 ELR 20079 BEATRICE BOLER, et al., Plaintiffs, v. DARNELL EARLY, et al., Defendants. Core Terms Plaintiffs', contaminated, regulations, safe drinking water, preempted, constitutional claim, constitutional right, drinking water Counsel: [*1] For Beatrice Boler, Mrs., Epco Sales, LLC, Plaintiffs: Susan L. Burke, LEAD ATTORNEY, Murphy Falcon Murphy Koch Xinis, Baltimore, MD; William H. Murphy, Jr., LEAD ATTORNEY, Murphy & Falcon, P.A., Baltimore, MD; David J. Shea, Shea Aiello & Doxsie, PLLC, Southfield, MI; Nicholas Adam Szokoly, Murphy, Falcon & Murphy, P.A., Baltimiore, MD; Valdemar L. Washington, Flint, MI. For Edwin Anderson, Pastor, Allina Anderson, Mrs., Plaintiffs: Nicholas Adam Szokoly, LEAD ATTORNEY, Murphy, Falcon & Murphy, P.A., Baltimiore, MD; Susan L. Burke, LEAD ATTORNEY, Murphy Falcon Murphy Koch Xinis, Baltimore, MD; William H. Murphy, Jr., LEAD ATTORNEY, Murphy & Falcon, P.A., Baltimore, MD; David J. Shea, Shea Aiello & Doxsie, PLLC, Southfield, MI; Valdemar L. Washington, Flint, MI. For Darnell Earley, Mr., Gerald Ambrose, Dayne Walling, Mayor, Defendants: Anthony K Chubb, City of Flint, City Attorney, Flint, MI; David B. Roth, William Young Kim, City of Flint, Flint, MI. For City of Flint, Defendant: Anthony K Chubb, City of Flint, City Attorney, Flint, MI; David B. Roth, William Young Kim, City of Flint, Flint, MI; Frederick A. Berg, Butzel Long, Detroit, MI; Joseph E. Richotte, BUTZEL LONG, P.C., Bloomfield [*2] Hills, MI; Sheldon H. Klein, Butzel Long, Bloomfield Hills, MI. For State of Michigan, State of MDEQ Michigan, State of DHHS Michigan, Defendants: Margaret A. Bettenhausen, Megen Elise Miller, Michigan Department of Attorney General, Lansing, MI; Nathan A. Gambill, Michigan Department of Attorney General, ENRA Division, Lansing, MI; Richard S. Kuhl, Assistant Attorney General, Environment, Natural Resources, and Agricultural Division, Lansing, MI. For Richard Dale Snyder, Defendant: Eugene Driker, Todd R. Mendel, Barris, Sott, Detroit, MI; Margaret A. Bettenhausen, Megen Elise Miller, Michigan Department of Attorney General, Lansing, MI; Morley Witus, Barris, Sott, Denn & Driker, PLLC, Detroit, MI; Nathan A. Gambill, Michigan Department of Attorney General, ENRA Division, Lansing, MI; Richard S. Kuhl, Assistant Attorney General, Environment, Natural Resources, and Agricultural Division, Lansing, MI. For McAlpine PC, Interested Party: Mark L. McAlpine, LEAD ATTORNEY, McAlpine & Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6918 Page 2 of 77 Page 2 of 4 Boler v. Early Christopher Bradley Clare McAlpine, Auburn Hills, MI. Judges: Hon. John Corbett O'Meara, United States District Judge. Opinion by: John Corbett O'Meara Opinion ORDER OF DISMISSAL FOR LACK OF SUBJECT MATTER JURISDICTION After Plaintiffs filed a motion for preliminary injunction, [*3] the court held a status conference with the parties on March 23, 2016. At the conference, the parties indicated that they had come to an agreement regarding the preliminary injunction motion.1 At that time, the court expressed concern regarding its ability to exercise jurisdiction and requested additional briefing from the parties, which has been provided. After reviewing the record and legal authority, the court concludes that it lacks jurisdiction over Plaintiffs' complaint. BACKGROUND FACTS This action arises out of the water contamination crisis in Flint, Michigan. Plaintiffs have brought this case as a class action on behalf of purchasers of Flint water. The named plaintiffs are Flint residents Beatrice Boler, Pastor Edwin Anderson and Mrs. Alline Anderson, and EPC Sales, LLC, a Flint business. The defendants are Darnell Earley (former emergency manager of Flint); Gerald Ambrose (former emergency manager of Flint); Dayne Walling (former mayor [*4] of Flint); the City of Flint; Governor Snyder; the State of Michigan; the Michigan Department of Environmental Quality; and the Michigan Department of Health and Human Services. 1 On April 7, 2016, the court received notice that the parties were unable to come to a final agreement regarding the injunction. As discussed below, however, the court lacks jurisdiction to consider Plaintiffs' motion for preliminary injunction. Filed on January 31, 2016, Plaintiffs' complaint alleges the following causes of action: Count I, impairment of constitutional right to contract, 42 U.S.C. §1983; Count II, substantive and procedural due process, 42 U.S.C. §1983; Count III, state created danger, 42 U.S.C. §1983; Count IV, equal protection, 42 U.S.C. § 1983; Count V, deprivation of property interest, 42 U.S.C. § 1983; Count VI, conspiracy to deprive of constitutional right, 42 U.S.C. §1985; Count VII, breach of contract; Count VIII, unjust enrichment; Count IX, breach of implied warranty of merchantability; Count X, Michigan Consumer Protection Act; Count XI, conversion, and Count XII, gross negligence. Plaintiffs claim that the City violated their constitutional rights and state law by providing contaminated water and requiring them to pay for it. Among other arguments, Defendants respond that Plaintiffs' constitutional claims under §1983 are precluded by the Safe Drinking Water Act, which provides Plaintiffs with a comprehensive scheme of remedies, or by the availability of a state law breach of contract action. LAW AND ANALYSIS "Federal [*5] courts are courts of limited jurisdiction," possessing "only that power authorized by Constitution and statute." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S. Ct. 1673, 128 L. Ed. 2d 391 (1994). Here, subject matter jurisdiction is predicated on 28 U.S.C. § 1331, which provides that "district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." Plaintiffs' federal claims allege constitutional violations pursuant to 42 U.S.C. § 1983. Defendants argue, however, that Plaintiffs' constitutional claims are precluded by the Safe Drinking Water Act, leaving the complaint devoid of federal causes of action. "When the remedial devices provided in a particular Act are sufficiently comprehensive, they may suffice to demonstrate congressional intent to Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6919 Page 3 of 77 Page 3 of 4 Boler v. Early Christopher Bradley Clare preclude the remedy of suits under § 1983." Middlesex Cnty. Sewarage Authority v. National Sea Clammers Assn., 453 U.S. 1, 20, 101 S. Ct. 2615, 69 L. Ed. 2d 435 (1981). In Sea Clammers, the Court found that the Federal Water Pollution Control Act (FWPCA) and the Marine Protection, Research, and Sanctuaries Act of 1972 (MPRSA), contained comprehensive enforcement mechanisms. The Court held that these enforcement schemes demonstrated Congress's intent "to supplant any remedy that otherwise would be available under § 1983." Id. at 21. Relying on Sea Clammers, the First Circuit in Mattoon v. Pittsfield, 980 F.2d 1 (1st Cir. 1992), found that the Safe Drinking Water Act (SDWA) precluded other federal remedies [*6] for unsafe public drinking water. In Matoon, the plaintiffs were residents who allegedly contracted giardiasis from drinking contaminated water supplied by the City of Pittsfield, Massachusetts. They alleged a breach of warranty claim, a "public nuisance" claim under federal common law, a claim under 42 U.S.C. § 1983, and a SDWA claim. The Matoon court found the federal common law nuisance claim to be preempted by the SDWA, because "Congress occupied the field of public drinking water regulation with its enactment of the SDWA." Mattoon, 980 F.2d at 4. Quoting the legislative history, the court noted that the purpose of the SDWA "is to assure that water supply systems serving the public meet minimum national standards for protection of public health." Id. (citations omitted). With minor exceptions, the SDWA applies "to each public water system in each State." Id. at 4 (quoting 42 U.S.C. §300g). The SDWA enables the Administrator of the Environmental Protection Agency to "publish maximum contaminant level goals and promulgate national primary drinking water regulations." Id. (quoting 42 U.S.C. §300g-1(b)(1). After reviewing, the regulatory scheme, the First Circuit concluded that "the SDWA evinces a clear congressional intent to entrust the regulation of the public drinking [*7] water systems to an expert regulatory agency rather than the courts." Mattoon, 980 F.2d at 4-5. The court determined that, as a result, the federal common law nuisance claim was preempted by the SDWA. The Matoon court further determined that the plaintiffs' § 1983 claims were precluded by the SDWA as well. The court noted the "elaborate enforcement scheme" set forth in the SDWA, including that the EPA Administrator may bring a civil action to compel SDWA compliance and may issue compliance orders against violators of SDWA regulations. Id. at 5-6 (citing 42 U.S.C. § 300g-3(b) and § 300g-3(b)(1)). In addition, citizens may initiate enforcement proceedings against SDWA violators and against the EPA Administrator for failure to perform any non-discretionary duty under the SDWA. See id.; 42 U.S.C. § 300j-8. As the court explained, because "the SDWA enforcement scheme is closely analogous to other enforcement schemes found sufficiently comprehensive to evince a clear congressional intent to preempt relief under section 1983, we hold that appellants' section 1983 claims are preempted by the SDWA." Mattoon, 980 F.2d at 6. "Comprehensive federal statutory schemes, such as the SDWA, preclude rights of action under section 1983 for alleged deprivations of constitutional rights in the field occupied by the federal statutory scheme." Id. See also [*8] Sea Clammers, 453 U.S. at 21 (FWPCA and MPRSA supplant remedies under § 1983); Smith v. Robinson, 468 U.S. 992, 104 S. Ct. 3457, 82 L. Ed. 2d 746 (1984) (Education of Handicapped Act provides exclusive remedy even when plaintiffs assert constitutional claims); Zombro v. Baltimore City Police Dep't, 868 F.2d 1364 (4th Cir.), cert. denied, 493 U.S. 850, 110 S. Ct. 147, 107 L. Ed. 2d 106 (1989) (ADEA, not § 1983, is exclusive remedy for age discrimination claims under federal law). Plaintiffs argue that they are not suing under the SDWA and that their constitutional claims do not rely upon alleged SDWA violations, citing Rietcheck v. City of Arlington, 2006 U.S. Dist. Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6920 Page 4 of 77 Page 4 of 4 Boler v. Early Christopher Bradley Clare LEXIS 1490, 2006 WL 37843 (D. Or. Jan. 4, 2006). In Rietcheck, a case involving contaminated drinking water, the court concluded that "the SDWA preempts § 1983 claims brought to enforce the SDWA's requirements." 2006 U.S. Dist. LEXIS 1490, [WL] at *3. The court allowed the plaintiffs' other § 1983 claim to proceed, however, reasoning that the plaintiffs "bring their First Claim under § 1983 to enforce their constitutional rights to be free from state-created danger, which is an entirely different kind of claim and is only tangentially related to safe drinking water." This reasoning is not persuasive; the "state-created danger" the plaintiffs complained of was not "tangentially" related to safe drinking water, it solely about safe drinking water. See Rietcheck, 2006 U.S. Dist. LEXIS 1490, 2006 WL 37843 at *4 (plaintiffs allege defendants "knowingly allowed a contaminated water source to be hooked up to Plaintiffs' household water supply"). The label does [*9] not change the substance of the plaintiffs' claims. Indeed, here the crux of each of Plaintiffs' constitutional claims is that they have been deprived of "safe and potable water." See, e.g., Compl. at ¶¶ 1, 50, 54, 59 (Defendants "knowingly, recklessly and callously exposed Plaintiffs to toxic and contaminated water unfit for human use and consumption."), 65, 71. Plaintiffs' allegations are addressed by regulations that have been promulgated by the EPA under the SDWA. See, e.g., 40 C.F.R. § 141.11 (regulating maximum contaminant levels); 40 C.F.R. § 141.31 et seq. (reporting and record keeping); 40 C.F.R. § 141.60 et seq. (maximum contaminant and residual disinfectant levels); 40 C.F.R. § 141.80 et seq. (control of lead and copper/corrosion control/lead service line replacement requirements); 40 C.F.R. § 141.110 (regulating treatment techniques). In addition, the safety of public water systems is a field occupied by the SDWA. Mattoon, 980 F.2d at 4. Accordingly, Plaintiffs' federal remedy is under the SDWA, regardless of how their legal theories are framed in the complaint. See also Zombro, 868 F.2d at 1368-69 (plaintiff's § 1983 claim preempted by the ADEA, even though plaintiff did not attempt to assert an ADEA claim). Plaintiffs are also able to seek relief under state law. See 42 U.S.C. §300j-8(e) ("Nothing in this section shall restrict any right which a person (or [*10] class of persons) may have under any statute or common law to seek enforcement of any requirement prescribed by or under this subchapter or to seek any other relief."). For the purpose of federal question jurisdiction under 28 U.S.C. § 1331, however, a federal claim is required. Because Plaintiffs are unable to seek relief under § 1983, and have not asserted a claim under the SDWA, only state claims remain. Accordingly, the court finds that it lacks subject matter jurisdiction over Plaintiffs' complaint. ORDER IT IS HEREBY ORDERED that Plaintiffs' complaint is DISMISSED for lack of subject matter jurisdiction. /s/ John Corbett O'Meara United States District Judge Date: April 19, 2016 End of Document Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6921 Page 5 of 77 Page 1 of 11 Choate's Air Conditioning & Heating v. Light, Gas & Water Div. of Memphis Christopher Bradley Clare Caution As of: December 22, 2016 9:06 PM EST Choate's Air Conditioning & Heating v. Light, Gas & Water Div. of Memphis United States Court of Appeals for the Sixth Circuit June 22, 2001, Filed No. 00-5399 Reporter 16 Fed. Appx. 323 *; 2001 U.S. App. LEXIS 14777 ** CHOATE'S AIR CONDITIONING & HEATING, INC., Plaintiff-Appellant, v. LIGHT, GAS AND WATER DIVISION OF THE CITY OF MEMPHIS; MEMPHIS CELLULAR TELEPHONE COMPANY, a Tennessee general partnership; POWERTEL/MEMPHIS INC.; HERMAN MORRIS, JR., individually and in his official capacity; GTE MOBILNET OF MEMPHIS INC.; GTE MOBILNET OF MEMPHIS II, INC., Defendants-Appellees. Notice: [**1] NOT RECOMMENDED FOR FULL-TEXT PUBLICATION. SIXTH CIRCUIT RULE 28(g) LIMITS CITATION TO SPECIFIC SITUATIONS. PLEASE SEE RULE 28(g) BEFORE CITING IN A PROCEEDING IN A COURT IN THE SIXTH CIRCUIT. IF CITED, A COPY MUST BE SERVED ON OTHER PARTIES AND THE COURT. THIS NOTICE IS TO BE PROMINENTLY DISPLAYED IF THIS DECISION IS REPRODUCED. Prior History: ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE. 99- 02622. McCalla. 2/18/00. Disposition: AFFIRMED. Core Terms easement, substantive due process, just compensation, telecommunications, district court, deprived, set forth, rights, Deed, license agreement, motion to dismiss, postdeprivation, capricious, conscience, state-law, provides, remedies, shocks, constitutional violation, due process claim, civil conspiracy, water storage, companies, Tower, tank Case Summary Procedural Posture Plaintiff landowner appealed an order of the United States District Court for the Western District of Tennessee dismissing its 42 U.S.C.S. § 1983 civil rights action alleging substantive due process violations. Plaintiff alleged licenses granted to defendant telephone companies to construct cellular telephone antennas violated its easement agreement with defendant public utility company. Overview The court found continued harm; thus, dismissal due the statute of limitations was not proper. The complaint set forth no claim of physical abuse, it alleged defendants acted in an arbitrary and capricious manner. But, the easement language gave utility company broad discretion to determine the use of the easement area. There were not sufficient facts, which if proven, to demonstrate the actions were arbitrary in the constitutional sense or that they otherwise shocked the conscience. Plaintiff failed to show deprivation of a particular constitutional protection, the claim was really a takings claim. The complaint failed to set forth any Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6922 Page 6 of 77 Page 2 of 11 Choate's Air Conditioning & Heating v. Light, Gas & Water Div. of Memphis Christopher Bradley Clare constitutional basis for the asserted substantive due process violation that was not explicitly contemplated by a specific constitutional provision. Plaintiff failed to demonstrate the alleged taking had no rational connection to a minimally plausible conception of the public interest. On the contrary, utility company licensed various telecommunications companies to use part of an easement to operate and maintain telecommunications facilities for public use. Civil conspiracy claim was also properly dismissed. Outcome The judgment of the district court was affirmed. LexisNexis® Headnotes Civil Procedure > Appeals > Standards of Review > De Novo Review HN1 A court of appeals reviews de novo a district court's dismissal of a complaint pursuant to Fed. R. Civ. P. 12(b)(6). Civil Procedure > ... > Defenses, Demurrers & Objections > Motions to Dismiss > Failure to State Claim Civil Procedure > Dismissal > Involuntary Dismissals > Failure to State Claims HN2 In evaluating a motion to dismiss for failure to state a claim, a court construes the complaint in the light most favorable to the plaintiff, accepting as true all factual allegations contained in the complaint and determining whether the plaintiff undoubtedly can prove no set of facts in support of his claims that would entitle him to relief. The court is not, however, bound to accept as true unwarranted factual inferences, or legal conclusions unsupported by well-pleaded facts. Civil Procedure > Appeals > Standards of Review > De Novo Review Governments > Legislation > Statute of Limitations > General Overview Governments > Legislation > Statute of Limitations > Judicial Review HN3 A determination that a complaint was filed within the applicable statute of limitations is a conclusion of law that a court of appeals reviews de novo. Governments > Legislation > Statute of Limitations > General Overview Governments > Legislation > Statute of Limitations > Time Limitations HN4 See Tenn. Code Ann. § 28-104(a)(3) (2000). Governments > Legislation > Statute of Limitations > Time Limitations HN5 On a civil rights claim, a court conducts a three-part inquiry for determining whether a continuing violation exists, looking first to whether the defendant's wrongful behavior continued after the precipitating event; then to whether the plaintiff's injury continued to accrue after that event; and finally, to whether further injury to the plaintiff could have been avoided if the defendant had ceased its wrongful conduct. It is noted, however, that a continuing violation is occasioned by continual unlawful acts, not continual ill effects from an original violation. Civil Rights Law > ... > Section 1983 Actions > Scope > Government Actions Civil Rights Law > Protection of Rights > Section 1983 Actions > Scope HN6 42 U.S.C.S. § 1983 is not itself a source of substantive rights, but rather provides a right of action for the vindication of independent constitutional guarantees. A § 1983 action is supplemental to a state tort action arising out of the same factual circumstances. Civil Rights Law > Protection of Rights > Section 1983 Actions > Scope HN7 In the context of an alleged due process violation, a plaintiff may resort to a 42 U.S.C.S. § 1983 action for relief only where he can Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6923 Page 7 of 77 Page 3 of 11 Choate's Air Conditioning & Heating v. Light, Gas & Water Div. of Memphis Christopher Bradley Clare demonstrate that the constitutional right was not adequately vindicated by state-law post-deprivation remedies. To state a claim under § 1983, a plaintiff must establish both that the defendant acted under color of state law, and that the defendant deprived him of a federal statutory or constitutional right. Civil Rights Law > ... > Elements > Color of State Law > General Overview Civil Rights Law > Protection of Rights > Section 1983 Actions > Scope Constitutional Law > Substantive Due Process > General Overview Constitutional Law > Substantive Due Process > Scope HN8 In the context of 42 U.S.C.S. § 1983 actions, two substantive due process strains have emerged: (1) state action that so "shocks the conscience" as to amount to a violation of one's federal civil rights, and (2) state action that has deprived an individual of a particular constitutional guarantee. Constitutional Law > Substantive Due Process > Scope HN9 In the context of a substantive due process civil rights claim, actions that "shock the conscience" are those that government officials may not take no matter what procedural protections accompany them. It is recognized in the exclusive context of cases involving physical abuse. Constitutional Law > Substantive Due Process > Scope HN10 Merely to state that the Due Process Clause was intended to secure the individual from the arbitrary exercise of the powers of government, which may be freely conceded, does nothing to state a claim under the substantive component of the Due Process Clause. Constitutional Law > ... > Fundamental Rights > Procedural Due Process > General Overview Constitutional Law > Substantive Due Process > General Overview Constitutional Law > Substantive Due Process > Scope HN11 Where a particular amendment to the United States Constitution provides an explicit textual source of constitutional protection against a particular sort of government behavior, that amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims. Constitutional Law > Bill of Rights > Fundamental Rights > Eminent Domain & Takings HN12 The Fifth Amendment does not proscribe the taking of property; it proscribes taking without just compensation. Nor does the Fifth Amendment require that just compensation be paid in advance of, or contemporaneously with, the taking; all that is required is that a reasonable, certain, and adequate provision for obtaining compensation exist at the time of the taking. If the government has provided an adequate process for obtaining compensation, and if resort to that process yields just compensation, then the property owner has no claim against the government for a taking. Similarly, if a state provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation. Civil Procedure > Special Proceedings > Eminent Domain Proceedings > General Overview Civil Procedure > Special Proceedings > Eminent Domain Proceedings > Jury Trials Constitutional Law > Bill of Rights > Fundamental Rights > Eminent Domain & Takings Constitutional Law > Substantive Due Process > General Overview Environmental Law > Land Use & Zoning > Constitutional Limits Real Property Law > Inverse Condemnation > General Overview Real Property Law > Inverse Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6924 Page 8 of 77 Page 4 of 11 Choate's Air Conditioning & Heating v. Light, Gas & Water Div. of Memphis Christopher Bradley Clare Condemnation > Remedies Torts > ... > Remedies > Damages > General Overview HN13 Tennessee law provides the appropriate remedy for a plaintiff alleging a takings claim. A plaintiff may petition for a statutorily provided jury inquest, also known as an inverse condemnation action, or may sue for damages in a trespass action. Tenn. Code Ann. § 29-16-123(a). Civil Procedure > Special Proceedings > Eminent Domain Proceedings > General Overview Constitutional Law > Bill of Rights > Fundamental Rights > Eminent Domain & Takings Real Property Law > Eminent Domain Proceedings > General Overview Real Property Law > Eminent Domain Proceedings > Constitutional Limits & Rights > General Overview Real Property Law > Eminent Domain Proceedings > Elements > Just Compensation Real Property Law > Eminent Domain Proceedings > Elements > Public Use HN14 When the government condemns property for public use, it provides the landowner a forum for seeking just compensation, as is required by the United States Constitution. If the condemnation proceedings do not, in fact, deny the landowner just compensation, the government's actions are neither unconstitutional nor unlawful. Even when the government takes property without initiating condemnation proceedings, there is no constitutional violation unless or until the state fails to provide an adequate post-deprivation remedy for the property loss. Communications Law > ... > Rules & Regulations > Regulated Entities > Wireless Services Constitutional Law > Bill of Rights > Fundamental Rights > Eminent Domain & Takings Real Property Law > Eminent Domain Proceedings > Constitutional Limits & Rights > General Overview Real Property Law > Eminent Domain Proceedings > Elements > Public Use Real Property Law > ... > Limited Use Rights > Easements > Public Easements HN15 The Tennessee legislature has recognized the public role of telecommunications companies and has gone so far as to extend eminent domain power to them. Tenn. Code Ann. §§ 65-21-203, 65-21-204. Communications Law > ... > Rules & Regulations > Regulated Entities > Wireless Services Constitutional Law > Bill of Rights > Fundamental Rights > Eminent Domain & Takings HN16 Telephone companies may take private property for works of internal improvement. Civil Procedure > ... > Subject Matter Jurisdiction > Supplemental Jurisdiction > General Overview Civil Procedure > ... > Subject Matter Jurisdiction > Supplemental Jurisdiction > Pendent Claims Civil Procedure > ... > Declaratory Judgments > Federal Declaratory Judgments > General Overview HN17 Absent unusual circumstances, there is a strong presumption in favor of dismissing pendent state-law claims after a Fed. R. Civ. P. 12(b)(6) dismissal. Counsel: For CHOATE'S AIR CONDITIONING & HEATING, INC., Plaintiff - Appellant: Maureen T. Holland, Hallie A. Plitman, Holland & Plitman, Owen P. Lalor, Lalor & Tvedt, Memphis, TN. For LIGHT, GAS AND WATER DIVISION OF THE CITY OF MEMPHIS, HERMAN MORRIS, JR., Defendants - Appellees: Clifford D. Pierce, Jr., Ross Higman, Wyatt, Tarrant & Combs, Memphis, TN. For MEMPHIS CELLULAR TELEPHONE COMPANY, GTE MOBILNET OF MEMPHIS INC., GTE MOBILNET OF MEMPHIS II, INC, Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6925 Page 9 of 77 Page 5 of 11 Choate's Air Conditioning & Heating v. Light, Gas & Water Div. of Memphis Christopher Bradley Clare Defendants - Appellees: Shelby R. Grubbs, Miller & Martin, Chattanooga, TN. For MEMPHIS CELLULAR TELEPHONE COMPANY, GTE MOBILNET OF MEMPHIS INC., GTE MOBILNET OF MEMPHIS II, INC, Defendants - Appellees: Donna J. Nance, Miller & Martin, Atlanta, GA. For POWERTEL/MEMPHIS [**2] INC, Defendant - Appellee: Dan M. Norwood, Norwood & Deboo, Steven R. Walker, Memphis, TN. Judges: BEFORE: NORRIS and COLE, Circuit Judges; and STEEH, District Judge. * Opinion by: R. GUY COLE, JR. Opinion [*325] R. GUY COLE, JR., Circuit Judge. Plaintiff-Appellant Choate's Air Conditioning and Heating, Inc. ("Choate's") appeals from the district court's order dismissing, for failure to state a cause of action, this § 1983 civil rights action alleging substantive due process violations stemming from an alleged easement-agreement violation by Defendants-Appellees Light, Gas and Water Division of the City of Memphis ("MLGW"); Memphis Cellular Telephone Company ("MCTC"); GTE Mobilnet of Memphis, Inc. ("Mobilnet"); GTE Mobilnet of Memphis II, Inc. ("Mobilnet II"); PowerTel/Memphis, Inc. ("PowerTel"); and Herman Morris, Jr. ("Morris"), individually and in his official capacity as General Counsel and President of MLGW. At issue is whether MLGW violated the terms of its easement agreement with Choate's when it leased a portion of an easement to various private [**3] telecommunications companies for the purpose of building various cellular telephone antennas thereon. Choate's alleges that MLGW's behavior constituted a taking within the meaning of the Fifth * The Honorable George Caram Steeh, III, United States District Judge for the Eastern District of Michigan, sitting by designation. Amendment's Just Compensation Clause and the Fourteenth Amendment's Due Process Clause. Because, however, MLGW's actions were for a private use, Choate's argues that it need not have availed itself of state postdeprivation remedies before filing the instant lawsuit in federal court. Choate's further [*326] contends that where a plaintiff has been the subject of an uncompensated taking, as in the instant case, and where a plaintiff has no right to just compensation because the taking was for a private use, such behavior should be found to constitute a substantive due process violation for which a § 1983 action may be brought. The district court rejected Choate's substantive due process argument (and a related civil conspiracy claim, also brought pursuant to 42 U.S.C. § 1983) and granted Defendants' motion to dismiss on that point. Finding no further basis on which to exercise subject-matter jurisdiction over the remaining state- law claims, the district court dismissed the entire [**4] action. Because Choate's failed to set forth a cognizable substantive due process violation and because Choate's remedy, if one exists at all, is in state court, the district court properly dismissed Choate's action. Accordingly, we AFFIRM the district court's order. I. BACKGROUND A. Factual Background In 1948, a 500,000-gallon water storage tank elevated on a 140-foot tower ("Choate's Water Tower") was constructed on a 2.442-acre tract in western Shelby County. The Memphis Suburban Utility District of Shelby County conveyed the tract and the water storage tank to MLGW by warranty deed in 1957 for the use and benefit of MLGW. MLGW is a division of the municipality of Memphis that provides water, electricity, natural and artificial gas, and other forms of energy to Shelby County residents. In 1990, MLGW conveyed by special warranty deed ("the 1990 Deed") the tract and water storage tank to Choate's, but reserved for itself an easement on a 0.441-acre portion of the conveyed property containing the Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6926 Page 10 of 77 Page 6 of 11 Choate's Air Conditioning & Heating v. Light, Gas & Water Div. of Memphis Christopher Bradley Clare water storage tank. Pursuant to the 1990 Deed, MLGW retained, inter alia, the following rights: . . . a perpetual easement or Right-Of-Way to construct, maintain [**5] and operate an elevated water storage tank; one, or more, Electric transmission or distribution line or lines, consisting of a variable number of wires and all necessary or desirable appurtenances (including but not limited to regulating, transmission and distribution equipment and necessary housing therefor; towers or poles made of wood, metal or other materials, telephone and telegraph wires, props, guys and anchorages, etc.); . . . over, across, upon and under [the easement area] . . . . Within the hereinabove described easement area, the City of Memphis, acting through the Memphis Light, Gas and Water Division, reserves unto itself, its successors and assigns the right to maintain absolute control of the access to and occupancy and use of said easement area. It being expressly understood that no one, including the fee simple property owner, his successors, heirs and assigns, shall be allowed access to and the occupancy and use of any portion of the hereinabove described easement area without prior written authorization for the same from the City of Memphis, acting through the Memphis Light, Gas and Water Division, which authorization may be granted or denied at the sole [**6] discretion of the City of Memphis, acting through the Memphis Light, Gas and Water Division. On June 14, 1995, MLGW entered into an "Antenna Site License Agreement" ("the Agreement") with MCTC, under which MCTC, as licensee, was permitted to install, operate, and maintain telecommunications equipment on the easement area and was allowed access to the easement area to perform such functions. Consistent with the terms of the Agreement, MCTC constructed a building to house its telecommunications equipment [*327] and installed telecommunications antennas on Choate's Water Tower. MCTC continues to operate and maintain telecommunications equipment on the easement area. MLGW entered into a similar licensing agreement with PowerTel in 1996, pursuant to which PowerTel subsequently constructed telecommunications equipment on Choate's Water Tower. At issue is whether MLGW violated the 1990 Deed by entering into these licensing agreements and whether this alleged violation constituted an uncompensated taking of Choate's property for a private use for which Choate's may seek relief in federal court. B. Procedural History Choate's initiated the instant lawsuit on July 19, 1999, when it filed [**7] a complaint in the United States District Court for the Western District of Tennessee. The complaint set forth a claim pursuant to 42 U.S.C. § 1983 and averred that Defendants acted under color of state law to deprive Choate's of its property rights and liberty interests, as protected by the Fifth and Fourteenth Amendments. Specifically, Choate's alleged that MLGW exceeded its rights under the 1990 Deed by entering into the aforementioned licensing agreements with MCTC and PowerTel; that said agreements were not authorized by the 1990 Deed, the Memphis City Charter, or the laws of the State of Tennessee; and that the telecommunications facilities built by MCTC and PowerTel substantially burdened Choate's property. Choate's complaint set forth (1) substantive due process violations under 42 U.S.C. § 1983; (2) a claim of civil conspiracy, in violation of 42 U.S.C. § 1985; and (3) state-law claims of slander of title and trespass, and sought a declaratory judgment establishing the rights of the parties with respect to the property and a preliminary injunction to preserve the status quo. Choate's amended its complaint [**8] on August 25, 1999, to name defendant Herman Morris, Jr., General Counsel and President of MLGW, as a defendant in his individual and official capacities; to eliminate its § 1985 civil conspiracy claim; and to set forth a civil Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6927 Page 11 of 77 Page 7 of 11 Choate's Air Conditioning & Heating v. Light, Gas & Water Div. of Memphis Christopher Bradley Clare conspiracy claim under 42 U.S.C. § 1983. Each defendant filed a motion to dismiss both Choate's original complaint and its amended complaint, to which Choate's responded on November 1, 1999. On September 14, 1999, Choate's filed a motion for a temporary restraining order and a preliminary injunction against PowerTel, alleging destruction of its property by PowerTel's removal of its telecommunications equipment. The district court granted Choate's motion on September 16, 1999, entered a consent order, and extended the temporary restraining order to all named defendants. MCTC, Mobilnet, and Mobilnet II filed cross- claims against MLGW on January 7, 2000, alleging MLGW's breach of their respective licensing agreements (for MLGW's alleged misrepresentation that it held exclusive ownership of the easement area) and seeking indemnification, costs, and expenses associated with this lawsuit. The district court never reached these cross-claims, [**9] however, because it granted Defendants' motions to dismiss on February 18, 2000, and entered a judgment dismissing Choate's amended complaint. Choate's timely appeal of that dismissal followed. II. DISCUSSION A. Standard of Review HN1 We review de novo a district court's dismissal of a complaint pursuant to FED. R. CIV. P. 12(b)(6). See Soper ex rel. Soper v. Hoben, 195 F.3d 845, 850 (6th Cir. 1999) (citing Wright v. MetroHealth Med. Ctr., 58 F.3d 1130, 1138 (6th Cir. 1995)). HN2 In evaluating a motion to dismiss for failure to state a claim, we construe the [*328] complaint in the light most favorable to the plaintiff, see Sinay v. Lamson & Sessions Co., 948 F.2d 1037, 1039-40 (6th Cir. 1991), accepting as true all factual allegations contained in the complaint and determining "whether the plaintiff undoubtedly can prove no set of facts in support of his claims that would entitle him to relief," In re DeLorean Motor Co., 991 F.2d 1236, 1240 (6th Cir. 1993). We are not, however, bound to accept as true unwarranted factual inferences, see Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987), [**10] or legal conclusions unsupported by well-pleaded facts, see Teagardener v. Republic- Franklin Inc. Pension Plan, 909 F.2d 947, 950 (6th Cir. 1990). HN3 A determination that a complaint was filed within the applicable statute of limitations is a conclusion of law that we review de novo. See Tolbert v. State of Ohio Dep't of Transp., 172 F.3d 934, 938 (6th Cir. 1999). B. Analysis 1. Statute of Limitations Under Tennessee law, HN4 "civil actions for compensatory or punitive damages, or both, brought under the federal civil rights statutes" must be commenced "within one (1) year after the cause of action accrued." TENN. CODE ANN. § 28- 104(a)(3) (2000). Defendants argue that even assuming Choate's were able to set forth a cognizable § 1983 claim, it would nevertheless be barred by the Tennessee statute of limitations, because it did not file its complaint until July 19, 1999, more than a year after MLGW's 1995 agreement with MCTC and its 1996 agreement with PowerTel. See Sevier v. Turner, 742 F.2d 262, 272-73 (6th Cir. 1984). Choate's responds that Defendants' statute-of-limitations argument is without merit because: (1) the ongoing nature [**11] of the 1990 Deed and the licensing agreements created continuing civil rights violations, and (2) periodic events that constituted separate acts gave rise to new and discrete violations within the statute-of-limitations period. HN5 This Court conducts a three-part inquiry for determining whether a continuing violation exists, looking first to whether the defendant's wrongful behavior continued after the precipitating event; then to whether the plaintiff's injury continued to accrue after that event; and finally, to whether further injury to the plaintiff could have been avoided if the defendant had ceased its wrongful conduct. See Tolbert, 172 F.3d at 940. We note, Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6928 Page 12 of 77 Page 8 of 11 Choate's Air Conditioning & Heating v. Light, Gas & Water Div. of Memphis Christopher Bradley Clare however, that "[a] continuing violation is occasioned by continual unlawful acts, not continual ill effects from an original violation." Id. (quoting Nat'l Adver. Co. v. City of Raleigh, 947 F.2d 1158, 1166 (4th Cir. 1991)). While we are reluctant to probe the record on a motion to dismiss to resolve this question, we find that even a cursory review of the facts of the instant case (as pleaded in Choate's complaint) convinces us that Choate's has the better of the argument. It is true [**12] that the harm of which Choate's complains was allegedly precipitated by MLGW's leasing of the easement area to various telecommunications companies. It appears, however, that the alleged harm continued to accrue after this point, as MLGW continued to enter licensing agreements, collect payments under those agreements, and update and service the relevant contracts, all of which activity occurred in relation to the disputed property in this case. We therefore decline to dismiss Choate's claim on this basis. 2. Section 1983 HN6 Section 1983 is not itself a source of substantive rights, but rather provides a right of action for the vindication of independent constitutional guarantees. See Braley v. City of Pontiac, 906 F.2d 220, 223 (6th Cir. 1990). A § 1983 [*329] action is supplemental to a state tort action arising out of the same factual circumstances. See id. at 224. HN7 In the context of an alleged due process violation, however, a plaintiff may resort to a § 1983 action for relief only where he can demonstrate that the constitutional right was not adequately vindicated by state-law postdeprivation remedies. See Parratt v. Taylor, 451 U.S. 527, 543-44, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981) [**13] (noting that a § 1983 action unavailable for deprivation of property without procedural due process where there exists a state remedy that comports with due process), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 330-31, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986); see also Wilson v. Beebe, 770 F.2d 578 (6th Cir.1985) (en banc) (extending Parratt to deprivations of liberty). To state a claim under 42 U.S.C. § 1983, a plaintiff must establish both that the defendant acted under color of state law, and that the defendant deprived him of a federal statutory or constitutional right. See United of Omaha Life Ins. Co. v. Solomon, 960 F.2d 31, 33 (6th Cir. 1992). We turn first to the question of whether Defendants deprived Choate's of a federal statutory or constitutional right. Although Choate's argues that Defendants' actions violated its federal constitutional right of substantive due process, it faces a heavy burden in establishing a substantive due process claim under the facts of this case. As we observed in Lewellen v. Metropolitan Government of Nashville and Davidson County, Tennessee, 34 F.3d 345 (6th Cir. 1994): [**14] The Supreme Court has always been reluctant to expand the concept of substantive due process, guideposts in this uncharted area being scarce and open-ended. The Court has been particularly reluctant to hold that the highly elastic notion of substantive due process should be stretched to the point of imposing federal duties that are analogous to those traditionally imposed by state tort law." Id. at 351 (alteration in original) (citations and internal quotation marks omitted). Thus, substantive due process protections have typically been limited to matters relating to family, marriage, procreation, and the right to bodily integrity, none of which is at issue here. See Albright v. Oliver, 510 U.S. 266, 272, 127 L. Ed. 2d 114, 114 S. Ct. 807 (1994). HN8 In the context of § 1983 actions, two substantive due process strains have emerged: state action that so "shocks the conscience" as to amount to a violation of one's federal civil rights, and state action that has deprived an individual of a particular constitutional guarantee. See Valot v. Southeast Local Sch. Dist. Bd. of Educ., 107 F.3d 1220, 1228 (6th Cir. 1997). Choate's [**15] can prevail under neither theory, and thus, we decline to consider the second question of whether Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6929 Page 13 of 77 Page 9 of 11 Choate's Air Conditioning & Heating v. Light, Gas & Water Div. of Memphis Christopher Bradley Clare Defendants acted under color of state law. a. "Shocks the Conscience" HN9 Actions that "shock the conscience" are those that government officials may not take "no matter what procedural protections accompany them." Beebe, 770 F.2d at 586. While we have questioned the continued vitality of this strand of substantive due process jurisprudence, we nevertheless continue to recognize it in the exclusive context of cases involving physical abuse. See Braley, 906 F.2d at 225. Perhaps recognizing that its complaint sets forth no claim of physical abuse, Choate's now argues that the district court erred by evaluating its claim under the "shocks the conscience" approach and suggests that the court should have determined whether its complaint alleged sufficient facts demonstrating that Defendants' behavior was "arbitrary, capricious and abusive." Choate's cites no authority, however, for the proposition that the "arbitrary, capricious, and abusive" [*330] standard is a cognizable standard appropriate for application to the facts presented in this case, and we have found [**16] none. We also note that Choate's never uses the terms "arbitrary" or "capricious" anywhere in either its complaint or its amended complaint. Inasmuch as Choate's urges use of this standard, we will assume that it is actually referring to the "arbitrary in the constitutional sense" standard, a variation of the "shocks the conscience" test that has been used exclusively in the zoning context "to emphasize the degree of arbitrariness required to set aside a zoning decision by a local authority." Pearson v. City of Grand Blanc, 961 F.2d 1211, 1222 (6th Cir. 1992). Even were we to apply this standard, however, Choate's still could not prevail. That Choate's alleges that Defendants acted in an arbitrary and capricious manner does not, without more, make it so. Nor does it lessen in any way its burden to support its claims with well-pleaded facts to survive a motion to dismiss. See Teagardener, 909 F.2d at 950 (noting that we are under no obligation to accept factually unsupported legal conclusions). As one judge of this Court observed in Valot, "HN10 merely to state that the Due Process Clause was 'intended to secure the individual from the arbitrary exercise [**17] of the powers of government,' which may be freely conceded, does nothing to state a claim under the substantive component of the Due Process Clause." 107 F.3d at 1233 (Ryan, J. concurring). Choate's argument is particularly unpersuasive given the sweeping language of the 1990 Deed delineating MLGW's rights under the easement agreement and extending broad discretion to MLGW to determine the use of the easement area. See J.A. at 35 ("Within [the easement area], the City of Memphis . . . reserves unto itself . . . the right to maintain absolute control of the access to and occupancy and use of said easement." (emphasis added)). We cannot conclude, therefore, that Choate's complaint has set forth sufficient facts, which if proven, would demonstrate that Defendants' actions were arbitrary in the constitutional sense or that they otherwise shocked the conscience. b. Deprivation of a Federal Right Choate's, then, is left to argue that Defendants' actions deprived it of a particular constitutional protection. See Valot, 107 F.3d at 1228. This it has failed to do. Its complaint states only: "Choate's possesses rights of ownership and use of Choate's [**18] Property. . . . [which] are guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution" and that "as a direct and proximate result of the acts of the Defendants, [Choate's] was deprived of its Substantive Due Process rights guaranteed by the Fourteenth Amendment of the United States Constitution." Choate's has merely repackaged a takings claim as a substantive due process violation for purposes of filing a § 1983 action in federal court. It is clear that although Choate's makes reference to the Fifth and Fourteenth Amendments in its complaints, it has failed to set forth any constitutional basis for the asserted substantive due process violation that is not explicitly contemplated by a specific constitutional provision. See Albright Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6930 Page 14 of 77 Page 10 of 11 Choate's Air Conditioning & Heating v. Light, Gas & Water Div. of Memphis Christopher Bradley Clare v. Oliver, 510 U.S. 266, 273, 114 S. Ct. 807, 127 L. Ed. 2d 114 (1994) ("HN11 Where a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims." (internal quotation marks omitted)). Indeed, the Fifth Amendment's Just Compensation Clause governs the precise [**19] claim set forth by Choate's: HN12 The Fifth Amendment does not proscribe the taking of property; it proscribes [*331] taking without just compensation. Nor does the Fifth Amendment require that just compensation be paid in advance of, or contemporaneously with, the taking; all that is required is that a "reasonable, certain and adequate provision for obtaining compensation" exist at the time of the taking. If the government has provided an adequate process for obtaining compensation, and if resort to that process "yield[s] just compensation," then the property owner "has no claim against the Government" for a taking. . . . Similarly, if a state provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation. Williamson County Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 194-95, 87 L. Ed. 2d 126, 105 S. Ct. 3108 (1985) (alteration in original) (citations omitted). Choate's allegations amount to nothing more than a just compensation takings claim for which it may seek state postdeprivation remedies; its effort to [**20] analogize this case to the zoning context and argue that it has an arbitrary and capricious substantive due process claim is unavailing. See Pearson, 961 F.2d at 1215 (distinguishing between "a just compensation takings claim" and "an arbitrary and capricious substantive due process claim"). HN13 Tennessee law provides the appropriate remedy for a plaintiff alleging a takings claim. A plaintiff may petition for a statutorily provided jury inquest, also known as an inverse condemnation action, or may sue for damages in a trespass action. See TENN. CODE ANN. § 29-16- 123(a); Meighan v. U.S. Sprint Communications Co., 924 S.W.2d 632, 640-41 (Tenn. 1996). Choate's cannot allege a constitutional violation until, at a minimum, it first attempts to avail itself of these remedies: HN14 When the government condemns property for public use, it provides the landowner a forum for seeking just compensation, as is required by the Constitution. If the condemnation proceedings do not, in fact, deny the landowner just compensation, the government's actions are neither unconstitutional nor unlawful. Even when the government takes property without initiating condemnation [**21] proceedings, there is no constitutional violation unless or until the state fails to provide an adequate postdeprivation remedy for the property loss. City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 714-15, 143 L. Ed. 2d 882, 119 S. Ct. 1624 (1999) (citations and internal quotation marks omitted). We are unconvinced by Choate's argument that any state remedies would be unavailable because Defendants' actions did not constitute a valid exercise of eminent domain power. Central to this argument is the premise that since Defendants did not effect a taking of its land for a public purpose, Choate's is not entitled to just compensation by resort to a state postdeprivation proceeding. See Montgomery v. Carter County, Tenn., 226 F.3d 758, 765 (6th Cir. 2000) (defining a private-use taking as one where there is "no rational relationship to some 'conceivable purpose'"). Choate's suggests that because "a 'private taking' (a taking for a private purpose) cannot be constitutional even if compensated, a plaintiff alleging such a taking would not need to seek Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6931 Page 15 of 77 Page 11 of 11 Choate's Air Conditioning & Heating v. Light, Gas & Water Div. of Memphis Christopher Bradley Clare compensation in state proceedings before filing a federal takings [**22] claim." Choate's argument fails, however, because the assumption underlying it -- that the alleged governmental taking in this case was for a private use -- is unsupported by the record. On the facts pleaded in Choate's complaint, we are not persuaded that this is one of [*332] the "rare real-life example[s]" of a private-use taking, because Choate's has failed to plead facts demonstrating "that [the alleged taking] had no rational connection to a minimally plausible conception of the public interest." Montgomery, 226 F.3d at 768. Quite the contrary, MLGW licensed various telecommunications companies to use part of an easement to operate and maintain telecommunications facilities for public use. More persuasive is the fact that HN15 the Tennessee legislature has recognized the public role of telecommunications companies and has gone so far as to extend eminent domain power to them. See TENN. CODE ANN. §§ 65-21-203, 65-21-204. Thus, even if MLGW and the private defendants instituted a taking of Choate's property, they were empowered to do so. See id. (noting that HN16 telephone companies may take private property "for works of internal improvement"). Choate's failed to [**23] seek first in state court any available postdeprivation remedies. It cannot now come to federal court to allege a constitutional violation stemming from the same set of facts, particularly where it can use the Fifth Amendment's just compensation authority (as incorporated by the Fourteenth Amendment) to vindicate that right in state court. Choate's failure to set forth in its complaint facts that would support a claim that Defendants deprived it of a federal constitutional guarantee compels us to AFFIRM the district court's dismissal of Choate's due process claim. 3. Choate's Remaining Claims Choate's complaint also sets forth a § 1983 claim, which avers that Defendants engaged in a civil conspiracy to deprive it of its constitutionally protected rights. The district court properly dismissed this claim, as it, like the substantive due process claim, failed to allege an independent federal statutory or constitutional violation. The district court also properly concluded that, in light of its dismissal of Choate's § 1983 claims, it lacked subject-matter jurisdiction over Choate's case and refused to consider both Choate's pendent state-law claims and its claim for declaratory [**24] relief, which, in the absence of any federal jurisdictional basis, was itself a state-law claim. See Musson Theatrical, Inc. v. Fed. Express Corp., 89 F.3d 1244, 1255 (6th Cir. 1996) (noting that, HN17 absent "unusual circumstances," there is a strong presumption in favor of dismissing pendent state- law claims after a 12(b)(6) dismissal). Similarly, the district court's dismissal of Choate's claims against Morris was proper, as Choate's failure to state a constitutional violation made unnecessary any determination of whether Morris was subject to qualified immunity, as he asserted. See Mattox v. City of Forest Park, 183 F.3d 515, 520 (6th Cir. 1999). Finally, the district court had no reason to address the pending cross-claims, because such claims sought indemnification and costs only in the event of a recovery by Choate's. We find no error, therefore, in the district court's dismissal of any of Choate's claims. III. CONCLUSION For the foregoing reasons, we AFFIRM the judgment of the district court. End of Document Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6932 Page 16 of 77 Page 1 of 4 Missey v. City of Staunton Christopher Bradley Clare Positive As of: December 22, 2016 9:08 PM EST Missey v. City of Staunton United States District Court for the Central District of Illinois November 13, 2008, Decided; November 13, 2008, Filed No. 08-3212 Reporter 2008 U.S. Dist. LEXIS 92546 *; 2008 WL 4911877 CHEYENNE MISSEY, by and through her mother, natural guardian and next friend SHELBY MISSEY, Plaintiff, vs. CITY OF STAUNTON, ILLINOIS; FRED STEIN, individually, and in his capacity as Mayor of Staunton; HANK FEY, individually and in his capacity as the Public Works Director with the City of Staunton; and MARILYN HERBECK, individually and in her capacity as the City Clerk of the City of Staunton, Defendants. Core Terms alleges, constitutional right, Defendants' Counsel: [*1] For Cheyenne Missey, by and through her mother, natural guardian and next friend SHELBY MISSEY, Plaintiff: Patricia L Dennis, LEAD ATTORNEY, Edwardsville, IL. For City of Staunton, Illinois, Fred Stein, individually, and in his Capacity as Mayor of Staunton, Hank Fey, individually and in his capacity as the Public Works Director with the City of Staunton, Marilyn Herbeck, individually and in her capacity as the City of Staunton, Defendants: Gerard W Cook, Julie M Koerner, LEAD ATTORNEYS, O'HALLORAN KOSOFF GEITNER & COOK PC, Northbrook, IL. Judges: Richard Mills, United States District Judge. Opinion by: Richard Mills Opinion RICHARD MILLS, U.S. District Judge: This case is before the Court on the Defendants' motion under Federal Rule of Civil Procedure 12(b)(6) to dismiss the Plaintiff's complaint. I. BACKGROUND This case was filed in the Seventh Judicial Circuit Court, Carlinville, Macoupin County, Illinois, and removed to this Court on September 23, 2008. On September 24, 2008, United States Magistrate Judge Byron G. Cudmore entered a Text Order granting the Plaintiff until October 24, 2008 to file objections to the Notice of Removal. On September 30, the Defendants filed the instant motion to dismiss. The Plaintiff [*2] has neither filed objections to the Notice of Removal nor responded to the motion. In support of the motion to dismiss, the Defendants allege that although the Plaintiff's complaint is vague, it appears to allege that the Defendants failed to sufficiently warn that the public water was contaminated, thereby violating the Plaintiff's constitutional rights. The complaint alleges that on July 18, 2007, Plaintiff Cheyenne Missey was exposed to the bacteria Escherichia coli (E-Coli) from the public water in the City of Staunton, Illinois. Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6933 Page 17 of 77 Page 2 of 4 Missey v. City of Staunton Christopher Bradley Clare The Plaintiff further alleges that Defendants City of Staunton, Illinois; Fred Stein, individually and in his capacity as Mayor of Staunton; Hank Fey, individually and in his capacity as the Public Works Director with the City of Staunton; Marilyn Herbeck, individually and in her capacity as the City Clerk of the City of Staunton, were at all times aware of the dangerous parasites and failed to provide the townspeople with this pertinent information. Moreover, the Defendants are entities of local government and have a role in owning, operating, managing, directing and controlling the City Public Water Facility. The complaint alleges that Cheyenne Missey was [*3] infected with E-Coli because of the Defendants' reckless disregard in failing to release pertinent information. She was hospitalized and spent several days in treatment for her infection. According to the complaint, Missey now faces future illness and damages as a result of the recklessness of the defendants' failing to release the information regarding the parasites contained in the drinking water. The Plaintiff claims this violated her constitutional rights. The Plaintiff alleges that on July 18, 2007, the Defendants issued a boil order for the drinking water, but failed to notify the residents of Staunton about the dangers associated with the water contamination. She claims that Defendants acted with reckless disregard in not revealing this information to the public. The complaint further alleges that Cheyenne Missey was hospitalized on July 27, 2007. She remained in the hospital for three days. After she was released, she remained on antibiotics and was told to return and have more testing on her blood. The Plaintiff soon returned to Oliver Anderson Hospital in Maryville, Illinois, for further treatment with antibiotics and more tests. She continued to take the antibiotics prescribed [*4] by her physicians until she was told to stop. The complaint alleges there is still reason to believe she will suffer permanent injuries as a result of the damages sustained from the bacteria and parasites to which she was exposed. The Plaintiff goes on to note the damage that may result because of the Defendants' alleged reckless disregard. The Defendants have filed a motion to dismiss the Plaintiff's complaint. The Plaintiff did not respond to the Defendants' motion. II. ANALYSIS A plaintiff must first provide sufficient detail so as to give the defendant "fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1964, 167 L. Ed. 2d 929 (2007) (quotations and citation omitted). "Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic, 127 S. Ct. at 1965 (citation omitted). Although detailed allegations are not required, a plaintiff must do more than simply allege legal conclusions. Id. at 1964-65 (citations omitted). "A complaint must now include 'enough facts to state a claim to relief that is plausible on its face.'" Khorrami v. Rolince, 539 F.3d 782, 788 (7th Cir. 2008) [*5] (quoting Bell Atlantic, 127 S. Ct. at 1974). (A) It appears that, to the extent the Plaintiff seeks to assert a federal claim, the claim is made pursuant to 42 U.S.C. § 1983, though the complaint does not specify that to be the case. The Defendants note the complaint does not say what constitutional rights were allegedly violated, nor under what statute the Plaintiff is suing. It states that Plaintiff seeks to recover attorney's fees, expert fees and costs under 42 U.S.C. § 1988. Unless there is a violation of a constitutional right or federal law, the Plaintiff cannot prevail in a suit which is brought pursuant to section 1983. See 42 U.S.C. § 1983. The Plaintiff has not alleged any specific constitutional injury, nor has she identified any constitutional right that was violated. The Defendants allege this is because there is no constitutional requirement to "expose the issues Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6934 Page 18 of 77 Page 3 of 4 Missey v. City of Staunton Christopher Bradley Clare regarding water contamination" after a boil order is issued. Moreover, the Plaintiff has not alleged any federal statute under which she is suing, apparently because there is not one that is applicable. Consequently, the Defendants assert that Plaintiff fails to state a claim upon which relief can be granted. At most, [*6] she is asserting a negligence action. The Court agrees that, to the extent Plaintiff seeks to assert a violation of her federal Constitutional rights, she has failed to do so. The Defendants further allege that the Safe Drinking Water Act, see 42 U.S.C. §§ 300f et seq. ("SDWA"), preempts the Plaintiff's action for an alleged violation of constitutional rights. They point to Mattoon v. City of Pittsfield, 980 F.2d 1(1st Cir. 1992), wherein the First Circuit held that "[c]omprehensive federal statutory schemes, such as the SDWA, preclude rights of action under section 1983 for alleged deprivations of constitutional rights in the field occupied by the federal statutory scheme." Id. at 6 (citations omitted). The court in Mattoon further observed that "Congress occupied the field of public drinking water regulation with its enactment of the SDWA." Id. at 4. The Court agrees with the First Circuit's analysis in Mattoon and finds that any constitutional claims or other claims under federal law are preempted by the SDWA. (B) The Defendants next allege to the extent that Plaintiff's complaint asserts a common law negligence claim, it should be dismissed because the Defendants are immune from liability [*7] pursuant to the Illinois Local Governmental and Governmental Employees Tort Immunity Act ("Tort Immunity Act"), the relevant portions of which provide: Neither a local public entity nor a public employee is liable for an injury resulting from the policy decision to perform or not to perform any act to promote the public health of the community by preventing disease or controlling the communication of disease within the community if such decision was the result of the exercise of discretion vested in the local public entity or the public employee, whether or not such discretion was abused. 745 ILCS 10/6-104(a) ("Section 6-104(a)"). A local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable. 745 ILCS 10/2-109 ("Section 2-109"). Except as otherwise provided by Statute, a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused. 745 ILCS 10/2-201 ("Section 2-201"). It is not entirely clear that Plaintiff's complaint alleges [*8] a common law negligence action against any of the Defendants. To the extent that Plaintiff is pursuing any such claims, the Court agrees they are barred by the Tort Immunity Act. Section 6-104(a) and section 2-201 preclude negligence claims against the discretionary acts of the individual Defendants. Section 2-109 precludes such a claim against the City. Thus, the Defendants cannot be held liable for their discretionary policy decision to issue a boil order while not listing the specific contaminants in the water. Ergo, the Defendant's unopposed motion pursuant to Rule 12(b)(6) to dismiss the complaint [d/e 5] is GRANTED. ENTER: November 13, 2008 FOR THE COURT: /s/ Richard Mills United States District Judge Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6935 Page 19 of 77 Page 4 of 4 Missey v. City of Staunton Christopher Bradley Clare End of Document Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6936 Page 20 of 77 Page 1 of 30 Rouse v. Caruso Christopher Bradley Clare Caution As of: December 22, 2016 9:08 PM EST Rouse v. Caruso United States District Court for the Eastern District of Michigan, Southern Division February 18, 2011, Decided; February 18, 2011, Filed CASE NO. 06-CV-10961-DT Reporter 2011 U.S. Dist. LEXIS 25776 *; 2011 WL 918327 ARTHUR ROUSE, CLAUDE HOFFMAN, GUY CURTIS, MICHAEL KANIPE, DOUGLAS WARNER, CARLTON RIDER, DANNY FRITTS, RICHARD BOONE II, TONY PELLIN, MARK ASHLEY, TERRY GEORGE, WILLIAM TAYLOR, LOREN WICKER, MICHAEL LAKE, STEWART GATES, ROBERT McMURRAY, ERICK DeFOREST, ANTONIO MANNING, HILTON EVANS, JOHN DOE, ONE through SEVEN, on behalf of themselves and all other similarly situated individuals, Plaintiffs, v. MDOC DIRECTOR PATRICIA CARUSO, WARDEN BLAINE LAFLER, AND DEPUTY WARDEN BARBARA MEAGHER, THEIR SUPERIORS, SUBORDINATES, SUB-CONTRACTORS, CONTRACTORS, REPLACEMENTS, PREDECESSORS, AND JOHN/JANE DOE, EIGHT through FOURTEEN, in their individual and official capacity, Defendants. Subsequent History: Adopted by, Objection overruled by, Dismissed by, Motion granted by, in part, Motion denied by, in part, Partial summary judgment granted by, in part, Partial summary judgment denied by, in part Rouse v. Caruso, 2011 U.S. Dist. LEXIS 25657 ( E.D. Mich., Mar. 14, 2011) Magistrate's recommendation at Rouse v. Caruso, 2013 U.S. Dist. LEXIS 19946 ( E.D. Mich., Jan. 7, 2013) Prior History: Rouse v. Caruso, 2009 U.S. Dist. LEXIS 29034 ( E.D. Mich., Mar. 31, 2009) Core Terms plaintiffs', prison, inmates, defendants', hygiene, pleadings, allegations, courts, contaminated, deprivation, ventilation, summary judgment, conditions, discovery, cold, drinking water, medical care, air, Michigan, overcrowding, entitled to summary judgment, motion for judgment, motion to dismiss, sanctions, MDOC, deliberate indifference, prison official, fire safety, law library, amended complaint Counsel: [*1] For Arthur Rouse, Claude Hoffman, Michael Kanipe, Danny Fritts, Richard Boone, II, Tony Pellin, Mark Ashley, Terry George, William Taylor, Loren Wicker, Michael Lake, Stewart Gates, Hilton Evans, Plaintiffs: Heather R. Pillot, Marcy L. Rosen, Miller, Canfield, Detroit, MI. Mark Ashley, Plaintiff, Pro se, St. Louis, MI. For Patricia Caruso, MDOC Director, Blaine Lafler, Warden, Barbara Meagher, Deputy Warden, Defendants: A. Peter Govorchin, LEAD ATTORNEY, Michigan Department of Attorney General, Lansing, MI; Clifton B. Schneider, MI Dept of Attorney General, Lansing, MI. Donald Lester, Movant, Pro se, Adrian, MI. Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6937 Page 21 of 77 Page 2 of 30 Rouse v. Caruso Christopher Bradley Clare Donald Lester, Sr, Movant, Pro se, Adrian, MI. Judges: MAGISTRATE JUDGE PAUL KOMIVES. JUDGE STEPHEN J. MURPHY, III. Opinion by: PAUL J. KOMIVES Opinion REPORT AND RECOMMENDATION ON (1) DEFENDANTS' MOTION TO DISMISS (docket #226); (2) DEFENDANTS' MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS (docket #230); AND (3) DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT (docket #231) I. RECOMMENDATION: [*2] The Court should grant defendants' motion to dismiss, grant in part and deny in part defendants' motion for partial judgment on the pleadings, and grant in part and deny in part defendants' motion for partial summary judgment. II. REPORT: A. Background Plaintiffs, nineteen current and former inmates of the St. Louis and Mid-Michigan Correctional Facilities in St. Louis, Michigan, commenced this pro se civil rights action pursuant to 42 U.S.C. § 1983 on March 3, 2006. Plaintiffs bring claims, on behalf of themselves and a purported class of all prisoners at the St. Louis and Mid-Michigan Correctional Facilities 1, against the defendant 1 On October 17, 2010, the Mid-Michigan Correctional Facility was consolidated with the Pine River Correctional Facility. The consolidated facility is now known as the Central Michigan Correctional Facility. It appears that this represented an administrative change only; the facilities remain the same. See MICHIGAN DEP'T OF CORRECTIONS, F.Y.I., at 4 (Sept. 16, 2010) (available at http://www.michigan.gov/documents/corrections/2010-09- 16 332669 7.pdf). For simplicity, I use the MDOC's "STF" designation, used for both the former Mid-Michigan Correctional Facility and the current Central Michigan Correctional Facility, to designate the facility throughout this Report. prison officials relating to the conditions of confinement at the facilities. Plaintiffs' complaint is divided into five claims for relief: (1) an Eighth Amendment claim based on denial of medical care and medication, dangerous noise levels, denial of restroom use, serious disease outbreaks, and prisoners being forced to wait in the cold to receive medications; (2) an Eighth Amendment claim based on cold cubicles and poor ventilation, cramped living space, denial of hygiene, and contaminated drinking water; (3) an Eighth Amendment claim based on the lack [*3] of a proper fire suppression system, overcrowded conditions, and prisoner access to inmates' files; (4) a First Amendment access to courts claim based on inadequate law library time and inadequate law library resources; and (5) a Fourteenth Amendment due process claim based on removal of property without a proper hearing and removal of funds from prisoner accounts without hearing and in excess of that authorized by law. Five plaintiffs were subsequently dismissed from the action, and pro bono counsel was appointed to represent [*4] the remaining 14 plaintiffs. On October 21, 2008, counsel filed an amended complaint. In the amended complaint plaintiffs, now consisting solely of current or former inmates of STF, assert three counts, broken down into numerous subparts, some of which are further broken down into sub-subparts, as illustrated in the following chart: Go to table1 The named defendants are Patricia [*5] Caruso, Director of the Michigan Department of Corrections (MDOC); Blaine Lafler, the Warden at STF during the relevant time period; and Barbara Meagher, a Deputy Warden at STF during the relevant time period. The complaint also names as defendants unknown employees of Correctional Medical Services, Inc., and unknown MDOC employees in the Bureau of Health Care Services. Plaintiffs seek $10,000,000.00 in compensatory damages, as well as declaratory and injunctive Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6938 Page 22 of 77 Page 3 of 30 Rouse v. Caruso Christopher Bradley Clare relief. 2 On March 23, 2010, counsel sought to withdraw with respect to eight of the remaining fourteen plaintiffs, based on their inability to contact these plaintiffs and these plaintiffs' failure to appear for their depositions or provide requested discovery. I granted counsel's motion to withdraw on April 30, 2010. The remaining plaintiffs represented by counsel are Claude Hoffman, Michael Kanipe, Richard Boone, William Taylor, Michael Lake, and Hilton Evans. The remaining plaintiffs who are no [*6] longer represented by counsel are Arthur Rouse, Danny Fritts, Tony Pellin, Stewart Gates, Terry George, Mark Ashley, Robert McMurray, and Eric DeForest. The matter is currently before the Court on three dispositive motions filed by the named defendants. First, on April 20, 2010, defendants filed a motion to dismiss the eight unrepresented plaintiffs for failure to cooperate in discovery pursuant to Fed. R. Civ. P. 37(d) and for failure to prosecute pursuant to Fed. R. Civ. P. 41(b). No plaintiff has filed a response to this motion. Second, on June 1, 2010, defendants filed a partial motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). This motion seeks dismissal for failure to state a claim of plaintiff's Eighth Amendment claims alleging denial of medical care (Claim I(A)(1)), denial of bathroom use (Claim I(A)(3)), disease outbreak (Claim I(A)(4)), medline prisoners being forced to wait in the cold (Claim I(A)(5)), cold cubicles (¶ 41 of Claim I(B)(1)), denial of hygiene (Claim I(B)(3)), contaminated drinking water (Claim I(B)(4)), and access to prisoner's personal files (Claim I(C)(3)). The motion also seeks dismissal for failure to state a claim of Counts II and [*7] III of the amended complaint. The represented plaintiffs filed a response to the motion on July 6, 2010, and defendants filed a reply on July 20, 2010. No unrepresented plaintiff has filed a response to 2 For ease of reference, I will refer to the claims raised by plaintiffs using the letters and numbers provided in the foregoing chart. Thus, plaintiffs' denial of medical care claim will be referred to as Claim I(A)(1), and so on. the motion. Third, also on June 1, 2010, defendants filed a motion for partial summary judgment pursuant to Fed. R. Civ. P. 56. Defendants contend that they are entitled to summary judgment on the merits of plaintiffs' Eighth Amendment claims alleging excessive noise (Claim I(A)(2)), inadequate ventilation (¶¶ 42-44 of Claim I(B)(1)), overcrowding (Claims I(B)(2) and I(C)(2)), contaminated drinking water (Claim I(B)(4)), and lack of fire safety (Claim I(C)(1)). Defendants also contend that they are entitled to summary judgment on plaintiff's hygiene and fire safety claims (Claims I(B)(3) and I(C)(1)) based on their lack of personal involvement. Defendants further argue that they are entitled to qualified immunity with respect to plaintiffs' claims against them in their individual capacities and to Eleventh Amendment immunity with respect to plaintiffs' claims against them in their official capacities. Finally, defendants argue that because none of the plaintiffs is still incarcerated [*8] at the St. Louis Correctional Facility, their claims for injunctive relief are moot. The represented plaintiffs filed a response to this motion on July 6, 2010, and defendants filed a reply on July 20, 2010. None of the unrepresented plaintiffs has filed a response to this motion. B. Defendants' Motion to Dismiss the Unrepresented Plaintiffs In the first motion pending before the Court, defendants seek dismissal of the eight unrepresented plaintiffs for failure to cooperate in discovery or for failure to prosecute. The Court should grant defendants' motion and dismiss these plaintiffs for failure to prosecute the action. 1. Dismissal for Failure to Cooperate in Discovery Defendants first move to dismiss the unrepresented defendants pursuant to Fed. R. Civ. P. 37(d), based on their failure to provide discovery. Rule 37(d) provides, in relevant part, that [t]he court where the action is pending may, on motion, order sanctions if: Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6939 Page 23 of 77 Page 4 of 30 Rouse v. Caruso Christopher Bradley Clare (I) a party or a party's officer, director, or managing agent-or a person designated under Rule 30(b)(6) or 31(a)(4)-fails, after being served with proper notice, to appear for that person's deposition; or (ii) a party, after being properly served with interrogatories [*9] under Rule 33 or a request for inspection under Rule 34, fails to serve its answers, objections, or written response. Fed. R. Civ. P. 37(d)(1)(A). The rule further provides that "[s]anctions may include any of the orders listed in Rule 37(b)(2)(A)(i)-(vi)." Fed. R. Civ. P. 37(d)(3). The sanctions referenced in Rule 37(b), in turn, include "dismissing the action or proceeding in whole or in part." Fed. R. Civ. P. 37(b)(2)(A)(v). Ordering dismissal or default 3 to sanction a party to the litigation is usually reserved for situations akin to contempt of court or other abusive practices. See, e.g., Chambers v. NASCO, 501 U.S. 32, 45-46, 111 S. Ct. 2123, 115 L. Ed. 2d 27 (1991); Roadway Express, Inc. v. Piper, 447 U.S. 752, 765, 100 S. Ct. 2455, 65 L. Ed. 2d 488 (1980). Generally, this sanction is not available unless the conduct of the complaining party was done willfully, maliciously, or in bad faith. See, e.g., National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 640, 96 S. Ct. 2778, 49 L. Ed. 2d 747 (1976) (per curiam). Before imposing a sanction of dismissal or default, a court should consider the prejudice to the complaining party, the degree of the wrongdoer's culpability, the availability of other measures to redress the problem, and the societal interest in the efficient [*10] administration of justice. See United States v. Shaffer Equip. Co., 11 F.3d 450, 462-63 (4th Cir. 1993), cited with approval by Coleman v. American Red Cross, 23 F.3d 1091, 1094 n.1 (6th Cir. 1994). As the Sixth Circuit has summarized, in 3 The Court applies the same standard to determine whether default is an appropriate sanction as it does to determine whether dismissal is appropriate. See Bank One of Cleveland, N.A. v. Abbe, 916 F.2d 1067, 1073 (6th Cir. 1990); Bratka v. Anheuser-Busch Co., 164 F.R.D. 448, 459-60 (S.D. Ohio 1995); In re Sams, 123 B.R. 788, 790 (Bankr. S.D. Ohio 1991). determining whether dismissal is an appropriate sanction for failure to comply with discovery orders, a court should consider four factors: The first factor is whether the party's failure to cooperate in discovery is due to willfulness, bad faith, or fault; the second factor is whether the adversary was prejudiced by the [offending] party's failure to cooperate in discovery; the third factor is whether the [offending] party was warned that failure to cooperate could lead to dismissal; and the fourth factor is whether less drastic sanctions were imposed or considered before dismissal [is] ordered. Bass v. Jostens, Inc., 71 F.3d 237, 241 (6th Cir. 1995); accord Bank One of Cleveland, N.A. v. Abbe, 916 F.2d 1067, 1073 (6th Cir. 1990). "Consideration of these factors should be given with reference to the dual purposes underlying the use of dismissal as a sanction for willful noncompliance with discovery, namely, of punishing the offending party and deterring [*11] future litigants from engaging in similar misconduct." Reese Corp. v. Rieger, 201 B.R. 902, 907 (E.D. Mich. 1996) (citing Bass, 71 F.3d at 241). Further, all these factors must be weighed against the strong policy that favors disposition of cases on their merits. See Little v. Yeutter, 984 F.2d 160, 162 (6th Cir. 1993); see also, Shaffer Equip., 11 F.3d at 462; Reese Corp., 201 B.R. at 907 ("Only when the aggravating factors outweigh the judicial system's strong predisposition to resolve cases on the merits is dismissal appropriate.") (citing Meade v. Grubbs, 841 F.2d 1512, 1520 n.7 (10th Cir. 1988)). Here, even if the unrepresented plaintiffs' failure to respond to discovery requests and appear for their depositions constitutes the type of willful conduct supporting a sanction of dismissal, the other factors all point to the opposite [*12] conclusion. First, defendants have not asserted any prejudice resulting from plaintiffs' conduct. This is not a case in which defendants have been unable to investigate plaintiff's claims right up to the eve of Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6940 Page 24 of 77 Page 5 of 30 Rouse v. Caruso Christopher Bradley Clare trial. See, e.g., Taylor v. Medtronics, 861 F.2d 980, 986 (6th Cir. 1988) (finding prejudice where "the dilatory tactics of the plaintiffs effectively prevented the defendants from engaging in further discovery after the deposition because of the close proximity of the trial date."); Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 750 (5th Cir. 1987) (finding prejudice where plaintiff had failed to respond to discover and scheduled trial date was one week from date of dismissal). Further, there is no suggestion by defendants that any evidence sought by the discovery requests is now unavailable due to the delay. Accord Lolatchy v. Arthur Murray, Inc., 816 F.2d 951, 952-53 (4th Cir. 1987) (finding no prejudice where "[t]here was no missing witness in the case whose testimony was made unavailable by the delay; . . . neither was there any records made unavailable by the delay, nor was there any evidence for the plaintiff which could have been presented earlier, the [*13] presentation of which was prevented by the delay."); see also, Bass, 71 F.3d at 242 (finding prejudice, in part, because many of the defendant's witnesses where no longer available to be deposed or testify). To be sure further, repeated failures to respond may eventually result in this type of prejudice, but at this stage such prejudice is lacking. In short, the most significant prejudice suffered by defendants at this stage of the proceedings is some delay in receiving this information and the costs involved with securing this discovery. However, this prejudice is remediable through other sanctions, and is not sufficient to warrant the extreme sanctions of dismissal and default judgment. See, e.g., Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992) ("[T]he delay involved in this case, by itself, would not be sufficient to warrant dismissal absent other justifying circumstances."); Shea v. Donohoe Constr. Co., Inc., 795 F.2d 1071, 1075, 254 U.S. App. D.C. 175 (D.C. Cir. 1986) (finding no actual prejudice where only prejudice suffered was costs which could be adequately compensated for by monetary sanctions). Further, the third factor weighs against dismissal because plaintiffs have been neither previously [*14] sanctioned for their discovery conduct nor warned that repeated failures to provide the requested discover could result in default. See Bass, 71 F.3d at 242 (magistrate judge explicitly warned counsel that failure to comply would result in recommendation that case be dismissed both at hearing and in conditional report and recommendation); Ehrenhaus, 965 F.2d at 921 (court adequately put plaintiff on notice that dismissal would be forthcoming by inviting defense counsel to file motion to dismiss if plaintiff failed to provide the ordered discovery); Taylor, 861 F.2d at 986 (sanction of dismissal appropriate where court "gave plaintiffs an explicit warning that dire consequences would follow any further abuse."); In re McDowell, 163 B.R. 509, 512 (Bankr. N.D. Ohio) (dismissal appropriate where "[t]he Second Show Cause Order placed the Debtor on notice that failure to comply with the Pretrial Order would result in dismissal."). Finally, the fourth factor also weighs against dismissal. As noted above, the Court has not previously imposed lesser sanctions which have proven ineffective and there is no suggestion in the record that such sanctions will be ineffective. See, e.g., Bass, 71 F.3d at 242-43 [*15] (sanction of dismissal appropriate where party failed to respond to courts order despite previous imposition of monetary sanctions); Adriana Int'l Corp. v. Thoeren, 913 F.2d 1406, 1413 (9th Cir. 1990) (finding this factor satisfied where party had previously been sanctioned and found in contempt); Taylor, 861 F.2d at 986 (finding this factor satisfied where "it [was] clear from the record that the court's use of sanctions was measured, gradual, and in proportion to the plaintiffs' misconduct."). Accordingly, the Court should conclude that defendants are not entitled to dismissal of the eight unrepresented plaintiffs' claims pursuant to Rule 37(d). 4 4 Defendants' motion is limited to their request for entry of a default judgment. Accordingly, I express no opinion as to whether defendants are entitled to monetary sanctions and, if so, in what Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6941 Page 25 of 77 Page 6 of 30 Rouse v. Caruso Christopher Bradley Clare 2. Dismissal for Failure to Prosecute Nevertheless, the Court should conclude that defendants are entitled to dismissal under Rule 41 based on these plaintiffs' failure to prosecute the action. [*16] In support of this argument, defendants note the following facts, which are undisputed at this point: (1) the unrepresented plaintiffs have failed to provide discovery and make themselves available for deposition; (2) they have failed to keep in contact with counsel, or provide either counsel or the Court with their new contact information; 5 and (3) they have failed to respond to any of the pending dispositive motions, including the motion to dismiss for failure to prosecute. Rule 41 provides, in relevant part, that "[i]f the plaintiff fails to prosecute or to comply with these rules [*17] or a court order, a defendant may move to dismiss the action or any claim against it." Fed. R. Civ. P. 41(b). In determining whether dismissal is appropriate for failure to prosecute, the Court applies the same four factors that it applies to the dismissal inquiry under Rule 37. See Mulbah v. Detroit Bd. of Educ., 261 F.3d 586, 590 (6th Cir. 2001). That the same factors are considered, however, does not mean that the conclusion reached under Rule 37(d) controls the Court's analysis under Rule 41(b). Although the factors are the same, the facts bearing on those factors is broader. With respect to the willfulness inquiry, for example, evidence of plaintiffs' willfulness includes not only their failures with respect to the discovery amount. The disposition of this motion is without prejudice to defendants filing a properly supported motion for monetary sanctions under Fed. R. Civ. P. 30, 37. 5 According to the Michigan Department of Corrections' Offender Tracking Information System (OTIS) website (http://www.state.mi.us/mdoc/asp/otis2.html), six of the eight unrepresented plaintiffs-Rouse, Fritts, Pellin, Gates, George, and Ashley-have been discharged from their sentences and are no longer under the jurisdiction of the MDOC. Only plaintiff DeForest is still incarcerated, albeit now at the Marquette Branch Prison. OTIS contains no record of plaintiff Robert McMurray, regardless of whether he is searched for by name or by the prisoner number attributed to him in plaintiffs' original complaint. matters, but also their failures to respond to the pending dispositive motions and provide counsel or the Court with current contact information. Likewise, under Rule 37 no prejudice was shown based on the assumption that the discovery sought by defendants could be obtained, and that at this point the only prejudice suffered by defendants was in time and money, which could be compensated by other sanctions. Being unable to locate plaintiffs, however, renders [*18] this assumption invalid, and precludes defendants from being able to properly defend themselves against these plaintiffs' claims. Likewise, although plaintiffs have not been warned of the possibility of dismissal through a court order, they were so warned by this Court's local rules, which provide that an attorney or unrepresented party must promptly file new contact information when there is a change of such information, and that "[t]he failure to file promptly current contact information may subject that person or party to appropriate sanctions, which may include dismissal, default judgment, and costs." E.D. Mich. LR 11.2. And this factor, in any event, is less important where, as here, plaintiffs' conduct "demonstrate [their] lack of interest in prosecution this action." Ali v. Hilton Gateway, No. 05-2459, 2007 WL 121453, at *2 (D.N.J. Dec. 15, 2006). "Plaintiff[s'] failure to keep the Court informed of [their] address[es] and to participate in discovery [and motion practice] prevents the case from proceeding in the foreseeable future" with respect to these plaintiffs. Williams v. Maricopa County Sheriff's Office, No. CV-04-2901, 2006 U.S. Dist. LEXIS 51294, 2006 WL 2091713, at *2 (D. Ariz. July 24, 2006). [*19] Considered as a whole, the unrepresented plaintiffs' inaction warrants dismissing these plaintiffs pursuant to Rule 41(b). See Burke v. Morgan, No. 06-CV-348, 2009 U.S. Dist. LEXIS 16025, 2009 WL 514314, at *2 (E.D. Ky. Mar. 2, 2009); Young v. Los Angeles County Sheriff's Dep't, No. CV 07-3586, 2008 U.S. Dist. LEXIS 39626, 2008 WL 2096898, at *2 (C.D. Cal. May 13, 2008); Doornbos v. Pilot Travel Ctrs., LLC, No. 3:05-cv-428, 2008 U.S. Dist. LEXIS 88020, 2008 WL 4764334, at *3 (E.D. Tenn. Oct. 27, 2008); Burns v. Glick, 158 F.R.D. 354, 356 Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6942 Page 26 of 77 Page 7 of 30 Rouse v. Caruso Christopher Bradley Clare (E.D. Pa. 1994). Accordingly, the Court should grant defendants' motion to dismiss for failure to prosecute, and should dismiss the claims of plaintiffs Rouse, Fritts, Pellin, Gates, George, Ashley, McMurray, and DeForest pursuant to Rule 41(b). C. Defendants' Motions for Judgment on the Pleadings In their next dispositive motion, defendants seek judgment on the pleadings pursuant to Rule 12(c) with respect to plaintiffs' Eight Amendment claims alleging denial of medical care, denial of bathroom use, disease outbreak, being forced to wait in the cold for medication, cold cubicles, denial of hygiene, contaminated drinking water, and access to prisoner's personal files, as well as plaintiff's access to courts and due process claims. 1. Legal [*20] Standard Rule 12(b)(6) provides that a party may, by way of motion instead of responsive pleading, assert as a defense that the complaint "fail[s] to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Such a motion "must be made before pleading if a responsive pleading is allowed." Fed. R. Civ. P. 12(b). Rule 12 further provides, however, that "[a]fter the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). Although presented later in the case, a motion for judgment on the pleadings is equivalent to a motion to dismiss and is governed by the same legal standard. See Johnson v. Dodson Public Schs., Dist. No. 2-A(C), 463 F. Supp. 2d 1151, 1155 (D. Mont. 2006); Ganthier v. North Shore-Long Island Jewish Health Sys., 298 F. Supp. 2d 342, 346 (E.D.N.Y. 2004); cf. Johnson v. Bredesen, 624 F.3d 742, 746 (6th Cir. 2010). In order for a court to dismiss a complaint for failure to state a claim, it must appear beyond doubt that the party asserting the claim can prove no set of facts supporting his claim that would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). The party [*21] asserting the claim is not required to specifically set out the facts upon which he or she bases his claim. Id. at 47. Rather, "a short and plain statement of the claim" pursuant to Fed. R. Civ. P. 8(a)(2) gives the opposing party fair notice of the claim and the grounds upon which it rests. See Conley, 355 U.S. at 47. However, as the Supreme Court has recently explained, bare legal conclusions need not be accepted by the Court, and a pleading must contain sufficient factual allegations to show that the allegations are plausible: Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." As the Court held in [Bell Atlantic Corp. v.] Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 [(2007)], the pleading standard Rule 8 announces does not require "detailed factual allegations," but it demands more than an unadorned, the- defendant-unlawfully-harmed-me accusation. Id., at 555 (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 92 L. Ed. 2d 209 (1986)). A pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." 550 U.S., at 555. Nor does a complaint suffice if it tenders [*22] "naked assertion[s]" devoid of "further factual enhancement." Id., at 557. To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Id., at 570. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id., at 556. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint pleads facts that are "merely consistent with" a Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6943 Page 27 of 77 Page 8 of 30 Rouse v. Caruso Christopher Bradley Clare defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.' " Id., at 557 (brackets omitted). Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id., at 555 (Although for the purposes of a motion to dismiss we must [*23] take all of the factual allegations in the complaint as true, we "are not bound to accept as true a legal conclusion couched as a factual allegation" (internal quotation marks omitted)). Rule 8 marks a notable and generous departure from the hyper- technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id., at 556. Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not "show[n]"-"that the pleader is entitled to relief." Fed. Rule Civ. Proc. 8(a)(2). In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of [*24] a complaint, they must be supported by factual allegations. When there are well- pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50, 173 L. Ed. 2d 868 (2009) (parallel citations omitted). A court can only decide a Rule 12(b)(6) motion on the basis of the pleadings; if the court considers matters outside the pleadings, the court must convert the motion into one for summary judgment under Rule 56. See Kostrzewa v. City of Troy, 247 F.3d 633, 643-44 (6th Cir. 2001); Weiner v. Klais & Co., 108 F.3d 86, 88 (6th Cir. 1997); Fed. R. Civ. P. 12(d). Here, plaintiffs have attached matters outside the pleadings to their response to defendants' motion for judgment on the pleadings. The Court should exclude these materials and decide the motion solely on the basis of the pleadings, for two reasons. First, although plaintiffs provide and at times rely on these materials, their response argues solely that defendants' motion should be denied under the Rule 12(b)(6) standard for dismissal. They do not make a summary judgment argument, nor have they requested that the Court convert the [*25] motion to one for summary judgment as provided for in Rule 12(d). Second, the evidence relates only to some of the claims at issue in defendants' motion, and then only with respect to some of the remaining plaintiffs. The Court would thus be required to partially address the motion under the summary judgment standard, while addressing other parts of the motion under the Rule 12(b)(6) standard. The better course is to simply exclude the materials and address the sufficiency of the complaint, as called for by defendants' motion. To state a viable § 1983 claim, a plaintiff must allege that: (1) he was deprived of a right, privilege or immunity secured by the Federal Constitution or the laws of the United States; and (2) the deprivation was caused by a person while acting under color of state law. Doe v. Wigginton, 21 F.3d 733, 738 (6th Cir. 1994). It is well established that liability in a § 1983 action cannot be based on a theory of respondeat superior. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948, 173 L. Ed. 2d 868 Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6944 Page 28 of 77 Page 9 of 30 Rouse v. Caruso Christopher Bradley Clare (2009); Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 691, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). "To recover damages under 42 U.S.C. § 1983, a plaintiff must establish a defendant's personal responsibility [*26] for the claimed deprivation of a constitutional right." Diebitz v. Arreola, 834 F. Supp. 298, 304 (E.D. Wis. 1993). "Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own conduct, has violated the Constitution." Iqbal, 129 S. Ct. at 1948. In other words, in order to state a claim under § 1983 "[a] plaintiff must allege facts, not simply conclusions, that show that an individual was personally involved in the deprivation of his civil rights. Liability under § 1983 must be based on the personal involvement of the defendant." Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (per curiam); see also, Carr v. Parker, No. 98- 6395, 1999 U.S. App. LEXIS 32688, 1999 WL 1206879, at *1 (6th Cir. Dec. 9, 1999); Salehpour v. University of Tennessee, 159 F.3d 199, 206 (6th Cir. 1998). As the Sixth Circuit has stated: "Section 1983 liability will not be imposed solely upon the basis of respondeat superior. There must be a showing that the supervisor encouraged the specific incident of misconduct or in some other way directly participated in it. At a minimum, a § 1983 plaintiff must show that a supervisory official [*27] at least implicitly authorized, approved or knowingly acquiesced in the unconstitutional conduct of the offending subordinate." Taylor v. Michigan Dep't of Corrections, 69 F.3d 76, 81 (6th Cir. 1995) (quoting Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984) (emphasis added)) (emphasis by Taylor court); see also, Monell, 436 U.S. at 693-95; Birrell v. Brown, 867 F.2d 956, 959 (6th Cir. 1989); Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986); Dunn v. Tennessee, 697 F.2d 121, 128 (6th Cir. 1982); Sims v. Adams, 537 F.2d 829, 831 (5th Cir. 1976). Furthermore, an allegation that a supervisor was aware of an actionable wrong committed by a subordinate and failed to take corrective action "is insufficient to impose liability on supervisory personnel under § 1983." Poe v. Haydon, 853 F.2d 418, 429 (6th Cir. 1988). As the Haydon court stated: "A supervisory official's failure to control, or train the offending individual is not actionable, unless the supervisor 'either encouraged the specific incident or in some other way directly participated in it.'" Haydon, 853 F.2d at 429 (quoting Hays v. Jefferson County, 668 F.2d 869, 874 (6th Cir. 1982)). 2. Eighth Amendment Claims (Count I) a. Eighth Amendment [*28] Standard The Eighth Amendment provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. CONST. amend. VIII. In its purest sense, the Eighth Amendment proscribes cruel and unusual punishment meted out in a penal or disciplinary sense. In its application by the courts, the amendment actually protects a wide assortment of interests. It proscribes disproportionate punishments, see Weems v. United States, 217 U.S. 349, 366-67, 30 S. Ct. 544, 54 L. Ed. 793 (1910), "unnecessary and wanton infliction of pain," Gregg v. Georgia, 428 U.S. 153, 173, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976) (plurality opinion), and conduct repugnant to "evolving standards of decency," Trop v. Dulles, 356 U.S. 86, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958) (plurality opinion). See generally, Parrish v. Johnson, 800 F.2d 600, 609 (6th Cir. 1986). The Constitution "does not mandate comfortable prisons." Rhodes v. Chapman, 452 U.S. 337, 349, 101 S. Ct. 2392, 69 L. Ed. 2d 59 (1981). On the other hand, it does not permit inhumane ones, and it is clear that "the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment." Helling v. McKinney, 509 U.S. 25, 31, 113 S. Ct. 2475, 125 L. Ed. 2d 22 (1993); see Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6945 Page 29 of 77 Page 10 of 30 Rouse v. Caruso Christopher Bradley Clare also, Farmer v. Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994). [*29] The amendment imposes affirmative duties on prison officials, "who must provide humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter and medical care, and must 'take reasonable measures to guarantee the safety of the inmates.'" Id. (quoting Hudson v. Palmer, 468 U.S. 517, 526-27, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984)). If the offending conduct is not a criminal penalty, then it must reflect an "'unnecessary and wanton infliction of pain'" to come within the Eighth Amendment's prohibition on cruel and unusual punishment. Ingraham v. Wright, 430 U.S. 651, 670, 97 S. Ct. 1401, 51 L. Ed. 2d 711 (1977) (quoting Estelle v. Gamble, 429 U.S. 97, 103, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976)). Such claims must satisfy both an objective and a subjective test. See Farmer, 511 U.S. at 834; Wilson v. Seiter, 501 U.S. 294, 297- 300, 111 S. Ct. 2321, 115 L. Ed. 2d 271 (1991). Under this analysis, what constitutes "unnecessary and wanton infliction of pain" will vary depending on the nature of the alleged constitutional violation. Hudson v. McMillian, 503 U.S. 1, 5, 112 S. Ct. 995, 117 L. Ed. 2d 156 (1992); Brooks v. Celeste, 39 F.3d 125, 128 (6th Cir. 1994). The plaintiff bears the burden of proving these elements by a preponderance of the evidence. See Brooks, 39 F.3d at 127-28. The objective prong asks [*30] whether the harm inflicted by the conduct is sufficiently serious to warrant Eighth Amendment protection. See McMillian, 503 U.S. at 8-9; Rhodes, 452 U.S. at 349 (1981). To satisfy this prong, the conduct must deprive the plaintiff of "the minimal civilized measure of life's necessities." Rhodes, 452 U.S. at 349. The objective component is contextually driven and is responsive to "'contemporary standards of decency.'" McMillian, 503 U.S. at 8 (quoting Estelle, 429 U.S. at 103). The subjective prong asks whether the officials acted with a sufficiently culpable state of mind; that is, was the conduct "wanton." Wilson, 501 U.S. at 302; Moore v. Holbrook, 2 F.3d 697, 700 (6th Cir. 1993). In determining whether an official acted wantonly, the court applies a "deliberate indifference" standard. Wilson, 501 U.S. at 302-03; see Estelle, 429 U.S. at 104-06. Under this "deliberate indifference" standard, "a prison official may be held liable under the Eighth Amendment for denying humane conditions of confinement only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Farmer, 511 U.S. at 847. A prison official [*31] is not free to ignore obvious dangers to inmates, and may be liable even if he does not know the exact nature of the harm that may befall a particular inmate. See id. at 843-44. However, prison officials may escape liability if they show that they in fact did not know of the obvious risk to the inmate's health or safety, or knowing of it, they acted reasonably under the circumstances. See id. at 844-45. In short, "'[d]eliberate indifference is the reckless disregard of a substantial risk of serious harm; mere negligence, or even gross negligence, will not suffice." Wright v. Taylor, 79 Fed. Appx. 829, 831 (6th Cir. 2003) (citing Farmer, 511 U.S. at 835-36; Williams v. Mehra, 186 F.3d 685, 691 (6th Cir. 1999) (en banc)). Plaintiff claims that defendants denied medically necessary treatment are governed by these objective and subjective tests, as explained by the Supreme Court in Estelle, supra. In Estelle, the Court held that "[r]egardless of how evidenced, deliberate indifference to a prisoner's serious illness or injury states a cause of action under § 1983." Estelle, 429 U.S. at 105. Thus, a court faced with failure to treat claims has a two-fold inquiry: (1) does the plaintiff's [*32] complaint involve "serious illness or injury"?-i.e, the objective prong of the Eighth Amendment analysis; and (2) if so, were the defendants deliberately indifferent to this serious illness or injury?-i.e., the subjective prong of the Eighth Amendment analysis. See generally, Durham v. Nu'Man, 97 F.3d 862, 868-69 (6th Cir. 1996). Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6946 Page 30 of 77 Page 11 of 30 Rouse v. Caruso Christopher Bradley Clare b. Denial of Medical Care (Claim I(A)(1)) With respect to their medical care claims, plaintiffs make the following allegations in their amended complaint: 12. As the recent prisoner population at the MMC has increased, the number of medical staff has remained the same. Before the most recent doctor, Jonathan Altman, quit, there was a ratio of one doctor and four nurses to 1,040 prisoners. Since Dr. Altman left, the MMC has only the four nurses and a visiting physician's assistant. The PA is only at the MMC twice a week which leaves the prisoners without proper care and violates MDOC's own policies. 13. There is no medical staff at the MMC after 8 p.m. or on weekends. The only medical care given at those times are at outside hospitals, if a prisoner can prove that they [sic] are suffering from a life-threatening emergency. 14. The policy for Emergency Medical Care [*33] gives nurses and doctors the authority to diagnose patients without first examining them, and without knowing their vital signs and medical history. This is a violation of professional medical standards, state law, and the 8th Amendment of the U.S. Constitution, by intentional infliction of pain without a legitimate penalogical reason. 15. Eye exams and dental work required a year- long (and in some cases, even longer) wait. Medication often runs out, causing serious medical problems. * * * * 27. Defendants have denied Plaintiffs life's minimal necessities. Such deprivations consisted of but were not limited to the following: a. The MMC has insufficient medical staff, which has negatively impacted Plaintiffs and lead to various injuries, including but not limited to: b. Denial of proper medical care and accessories such as a brace for a pre existing club foot, medication for pain and arthritis, and denial of proper tests to determine if high-risk Plaintiffs have cancer; all of which have resulted in pain and suffering. c. Nurses giving examinations without regard to Plaintiffs' health records, scratching a Plaintiff's eye when examining him with a dye stick (resulting in a bleeding eye), [*34] and refusing tests to save money. d. Some Plaintiffs and putative class members were on psychiatric medication for years despite never having seen a psychiatrist. Psychiatrists are not available at MMC; nurses prescribed the medication. e. Many other putative class members have been denied treatment for medical ailments such as high blood pressure, high cancer counts, and enlarged prostates, despite needing the treatment. This is to cut costs and for the prison to save money. 28. The above allegations have resulted in Plaintiffs' and putative class members' unnecessary pain and suffering. Amended Compl., ¶¶ 12-15, 27-28. Defendants argue that plaintiff's medical care claims fail to state a claim upon which relief may be granted because they do not allege an objective medical need or subjective knowledge on the part of the defendants. They further argue that these allegations relate to issues cared for by medical staff, issues in which they had no involvement. The Court should disagree. Defendants' arguments would certainly be correct if plaintiffs' were alleging discrete medical issues which were handled by individual doctors or nurses. Plaintiffs, however, are not presenting this type [*35] of claim. As the courts have recognized, deliberate Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6947 Page 31 of 77 Page 12 of 30 Rouse v. Caruso Christopher Bradley Clare indifference "'may occur on an individual level, such as when a doctor intentionally mistreats an inmate . . . or on an institutional level, when the prisoner's system of medical care is so seriously inadequate as to cause unwarranted suffering.'" Dean v. Coughlin, 107 F.R.D. 331, 333 (S.D.N.Y. 1985) (quoting Cruz v. Ward, 558 F.2d 658, 662 (2d Cir. 1977)) (alteration in original). It is this second type of claim that plaintiffs are bringing. And, "[w]hen a prisoner class seeks to challenge an entire health care system, deliberate indifference to their health needs can be shown either by repeated acts which disclose a pattern of conduct by the prison medical staff, or by evidence of such systemic deficiencies in staffing, facilities, or procedures that unnecessary suffering is inevitable." Id.; see also, Wellman v. Faulkner, 715 F.2d 269, 272 (7th Cir. 1983); Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980); Morales Feliciano v. Rossello Gonzalez, 13 F. Supp. 2d 151, 206 (D.P.R. 1998); Grubbs v. Bradley, 552 F. Supp. 1052, 1123 (M.D. Tenn. 1982). 6 Plaintiffs' amended complaint sufficiently alleges these types of systemic deficiencies. Plaintiffs allege that the facility is staffed by only four nurses and no doctors, and that there is no medical staff present after 8 p.m. or on weekends. They allege that these deficiencies result in inadequate, improper, or a total lack of care. Whether plaintiffs will be able to prove these allegations is not before the Court, and indeed proof of such a systemic claim "entails a heavy burden." Dunigan ex rel. Nyman v. Winnebago County, 165 F.3d 587, 591 (7th Cir. 1999). Plaintiffs allegations are sufficient to state a systemic medical claim under the Eighth Amendment. Further, they are adequate to allege the personal involvement of the defendant supervisory officials, as the claims stem not from individual 6 While the Court previously denied plaintiffs' motion for class- certification, this [*36] was because, at the time, plaintiffs were proceeding pro se, and pro se plaintiffs may not maintain a class action. See Ziegler v. Michigan, 90 Fed. Appx. 808, 810 (6th Cir. 2004). Until they are ruled upon on the merits, plaintiffs' class allegations asserted in the Amended Complaint filed by counsel remain viable. treatment decisions of particular medical professionals, but the staffing and [*37] policy decisions of the supervisory officials. See Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir.2003) (internal quotation omitted) ("The necessary causal connection can be established when a history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation, and he fails to do so."); Antonelli v. Sheahan, 81 F.3d 1422, 1429 (7th Cir.1996) (supervisory officials "can be expected to know of or participate in creating systemic, as opposed to localized, situations."). Accordingly, the Court should conclude that defendants are not entitled to dismissal of plaintiffs' medical claims. c. Denial of Bathroom Use (Claim I(A)(3)) The Court should conclude, however, that defendants are entitled to dismissal of plaintiffs' claim alleging denial of bathroom use. In this claim, plaintiffs allege: 32. Plaintiffs and putative class members are denied bathroom use at the MMC during count time, which takes place six times a day, for 30 minutes or more each time. This includes first thing in the morning after sleeping for six to eight hours. This has caused pain, suffering, and bladder problems. 33. Prisoners are also denied bathroom use during Fire Drills [*38] and on Top Lock, for up to four hours without any legitimate penalogical reason. Prisoners are issued a major misconduct ticket if they violate this rule. Amend. Compl., ¶¶ 32-33. The Eighth Amendment prohibits conditions of confinement that amount to cruel and unusual punishment and manifest a wanton infliction of pain. It does not prohibit conditions of confinement that "cause mere discomfort or inconvenience." Hunt v. Reynolds, 974 F.2d 734, 735 (6th Cir. 1992) (internal quotation omitted). As the Supreme Court has explained, "extreme deprivations are Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6948 Page 32 of 77 Page 13 of 30 Rouse v. Caruso Christopher Bradley Clare required to make out a conditions-of-confinement claim. Because routine discomfort is part of the penalty that criminal offenders pay for their offenses against society, only those deprivations denying the minimal civilized measure of life's necessities are sufficiently grave to form the basis of an Eighth Amendment violation." Hudson, 503 U.S. at 8-9 (internal citations and quotations omitted). Temporary restrictions on bathroom use, even ones lasting several hours, do not constitute the wanton infliction of pain or exhibit deliberate indifference to a prisoner's health or safety. See Abdur-Reheem-X v. McGinnis, No. 99-1075, 1999 U.S. App. LEXIS 29997, 1999 WL 1045069, at * (6th Cir. Nov. 12, 1999) [*39] ("[T]he Eighth Amendment does not require that prisoner enjoy immediately available . . . toilets."); Hernandez v. Battaglia, 673 F. Supp. 2d 673, 677 (N.D. Ill. 2009) (denial of bathroom break during 3-5 hour period of cell "shakedown" did not state Eighth Amendment claim); Owens v. Padilla, No. C 06-4778, 2008 U.S. Dist. LEXIS 64685, 2008 WL 3916068, at *4 (N.D. Cal. Aug. 22, 2008) (confinement in prison barbershop for six hours without access to bathroom did not state Eighth Amendment claim); Trevino v. Jones, No. 06-CV-0257, 2007 U.S. Dist. LEXIS 15891, 2007 WL 710213, at *8 (N.D. Okla. Mar. 06, 2007) (use of restrooms only twice during eight hour period does not constitute cruel and unusual punishment). Accordingly, the Court should grant defendants' motion for judgment on the pleadings with respect to this claim. d. Disease Outbreaks (Claim I(A)(4)) Plaintiffs also allege that MMC has had many outbreaks of Community Associated Methicillin Resistant Staphylococcus Aureus (MRSA) that is caused or exacerbated by the conditions of confinement and which defendants have failed to stop. See Amended Compl., ¶¶ 34-39. Defendants argue that these allegations fail to state a claim upon which relief may be granted because [*40] plaintiffs do not allege that they have contracted MRSA, and because plaintiff's allege only that certain conditions of confinement may have contributed to the outbreak, but they do not allege any acts or omissions of defendants that created an unreasonable risk of injury. The Court should agree. The fact, as alleged by plaintiffs, that they may have been exposed to "some risk" of contracting MRSA is insufficient to state a claim. See Oliver v. Bucks County Correctional Facility, 181 Fed. Appx. 287, 289 (3d Cir. 2006), cited with approval by Wooler v. Hickman County, Ky., 377 Fed. Appx. 502, 505 (6th Cir. 2010). Further, the complaint contains no allegations suggesting that defendants knew of the alleged outbreaks or of the risk of such outbreaks, and therefore it fails to allege that defendants were deliberately indifferent under the subjective prong of the Eighth Amendment standard. Cf. Stewart v. Taft, 235 F. Supp. 2d 763, 769-70 (N.D. Ohio 2002). Accordingly, the Court should grant defendants' motion for judgment on the pleadings with respect to this claim. e. Medline Claim (Claim I(A)(5)) Plaintiffs next allege that "MMC prisoners are forced to stand outside in the cold and rain, [*41] with temperatures that may fall below single digits to pick up their medications for up to 45 minutes." Amended Compl., ¶ 40. Plaintiffs do not allege, however, that they are forced to do so without adequate clothing to protect them from the elements, or that this practice has resulted in any harm. Cf. Chandler v. Moore, 2 F.3d 847, 848 (8th Cir. 1993) (being forced to wait in cold and rain without adequate protective clothing states Eight Amendment claim). "Mere discomfort or temporary adverse conditions which pose no risk to health and safety do not implicate the Eighth Amendment." Whitington v. Ortiz, 307 Fed. Appx. 179, 2009 WL 74471, at *6 (10th Cir. 2009). An allegation that prisoners were "standing in inclement weather," without more, is not "'sufficiently serious to violate the Eighth Amendment.'" Taylor v. Mosley, No. 2:04CV39, 2006 WL 1475780, at *5 (M.D. Ala. May 25, 2006) (quoting Hudson, 503 U.S. at 8). Plaintiff's allegations therefore fail to state an Eighth Amendment claim. See Fearance v. Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6949 Page 33 of 77 Page 14 of 30 Rouse v. Caruso Christopher Bradley Clare Schulteis, No. 1:08-cv-00615, 2010 U.S. Dist. LEXIS 20941, 2010 WL 582050, at *2 (E.D. Cal. Feb. 12, 2010) ("the mere allegations of inadequate clothing and exposure to cold are insufficient, as discomfort alone [*42] is not sufficient to violate the Eighth Amendment."); Ashann-Ra v. Virginia, 112 F. Supp. 2d 559, 563 (W.D. Va. 2000) (complaint failed to state a claim where prisoner did "not allege that exposure of his feet to subfreezing temperatures, rain or snow during the brief walks between buildings caused severe pain, disfigurement or life-threatening risks."). Accordingly, the Court should grant defendants' motion for judgment on the pleadings with respect to this claim. f. Cold Cubicles (¶ 41 of Claim I(B)(1)) Plaintiffs next allege that their Eighth Amendment rights were violated by defendants because, due to inadequate windows, insulation, and thermostats, "rear cubicles [are] cold." Amended Compl., ¶ 41. While the Eighth Amendment requires that prison officials avoid exposing prisoners to prolonged periods of extreme heat or cold, plaintiffs' bare allegation that some cells are "cold" is insufficient to state an Eighth Amendment claim. See Jenkins v. Livingston, No. 6:09cv560, 2010 U.S. Dist. LEXIS 104136, 2010 WL 3853099, at *8 (E.D. Tex. Aug. 31, 2010) (citing Johnson v. Texas Bd. of Criminal Justice, 281 Fed. Appx. 319, 321 (5th Cir.2008) (per curiam)) ("Vague allegations of cold and heat in a prison environment, [*43] without an assertion of bodily injury, are insufficient to state a violation of the Eighth Amendment."); Williams v. Grant, No. CV408-203, 2009 U.S. Dist. LEXIS 95683, 2009 WL 3317262, at *4 (S.D. Ga. Oct. 14, 2009) ("Here, however, Williams has not alleged enough. Under Iqbal, he must supply more than conclusions and vague assertions like 'cold bare cell' phraseology."); Spitsyn v. Morgan, No. C04-5134, 2008 WL 714095, at *17 (W.D. Wash. Mar. 14, 2008) (complaint failed to state a claim where "plaintiff merely claim[ed] . . . that the temperature was cold in his cell."); Moore v. Monahan, No. 06 C 6088, 2008 U.S. Dist. LEXIS 1915, 2008 WL 111299, at *9 (N.D. Ill. Jan. 10, 2008) (citations omitted) (quoting Bell Atlantic, 127 S.Ct. at 1959) ("Here, Moore's allegations that his cell was inadequately heated in the winter and extremely hot in the summer does not create any . . . inference [of deliberate indifference]. Put differently, Moore's bare-boned allegations do not suggest that he has a "right to relief above the speculative level."). Accordingly, the Court should grant defendants' motion for judgment on the pleadings with respect to this claim. g. Denial of Hygiene (Claim I(B)(3)) Plaintiffs also allege that "[t]he MDOC has a policy that [*44] forbids hygiene for one year to an indigent prisoner who was terminated from school, work, or refused a job." Amended Compl., ¶ 48. Defendants do not contend that such a denial of hygiene states an Eighth Amendment claim, nor could they. Flanory v. Bonn, 604 F.3d 249, 255 (6th Cir. 2010) ("A prisoner whose inability to purchase hygiene items results from his rejection of educational status satisfies the objective and subjective requirements of an Eighth Amendment violation when he alleges a complete deprivation and shows that the deprivation resulted from a deliberate indifference to hygiene needs."). Rather, defendants argue that this claim fails because "[t]here is no allegation . . . that any of the named plaintiffs were denied hygiene products . . . ." Br. in Supp. of Def.s' Mot. for Partial Judgment on the Pleadings, at 10. As with plaintiffs' medical claims, plaintiffs' denial of hygiene claims are brought on behalf of a proposed class of prisoners, and allege a systemic deprivation under the Eighth Amendment. Thus, as with plaintiff's medical claims, the failure to allege specific harm to each named plaintiff does not warrant dismissal at this time. Accordingly, the Court should [*45] deny defendants' motion for judgment on the pleadings with respect to this claim. 7 7 Defendants also move for summary judgment with respect to this claim. Application of the summary judgment standard to this claim is discussed below. Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6950 Page 34 of 77 Page 15 of 30 Rouse v. Caruso Christopher Bradley Clare h. Contaminated Drinking Water (Claim I(B)(4)) Defendants next seek dismissal of plaintiffs' claims that they are forced to consume contaminated drinking water. With respect to this claim, plaintiffs allege: 24. Saint Louis was added to the Federal Toxic Superfund Cleanup Site. It may be this "nation's costliest environment" cleanup. 25. DDT and other chemicals have polluted Pine River. Parachlorobenzene sulfonic acid (p- CBSA), is a byproduct of DDT and has been found in the city's drinking water in levels up to 11 times higher than the EPA's safety threshold. 26. The three St. Louis prisons, which hold about 3,000 inmates, were notified of the water contamination, but staff refused to do anything but put bottled water in the store for those who could afford to buy it. Inmates' food was prepared with tap water and those who cannot afford bottled water drink tap water as well. * * * * 50. As cited previously, Saint Louis is the only location in the U.S. where the [*46] drinking water is contaminated with p-CBSA, a by- product of DDT. After the EPA alerted the Saint Louis prisons that the three wells were contaminated, they did not supply the prisoners with fresh drinking water. 51. No one knows what other chemicals are in the water, nor do they know the long term effects of these toxic chemicals. 52. The Defendants have been informed of these problems and have chose to do absolutely nothing about them [in violation of state and federal laws]. Amended Compl., ¶¶ 24-26, 50-52. The Court should conclude that these allegations state an Eighth Amendment claim. An allegation that prisoners have been exposed to toxic substances can state an Eighth Amendment claim, even without an allegation of present harm. See Helling, 509 U.S. at 33 ("We have great difficulty agreeing that prison authorities may not be deliberately indifferent to an inmate's current health problems but may ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year. . . . We would think that a prison inmate also could successfully complain about demonstrably unsafe drinking water without waiting for an attack [*47] of dysentery."). Here, plaintiffs have alleged that they are exposed to drinking water contaminated with p-CBSA, a by- product of DDT. Defendants's assertion that "there is no factual allegation . . . on which a jury could conclude that the water was contaminated," Def.s' Br., at 10, is simply incorrect. As set forth above, the Amended Complaint alleges that the drinking water is contaminated with p-CBSA above the EPA's safety threshold. These averments constitute "factual allegation[s] . . . on which a jury could conclude that the water was contaminated." It may be, as defendants argue, that "[t]here is no evidence that any of the plaintiffs have been exposed to p- CBSA or any other contaminant," id. (emphasis added), and that "there is no . . . evidence on which a jury could conclude that the water was contaminated." Id. (emphasis added). Plaintiffs, however, are not required to produce evidence to withstand a motion for judgment on the pleadings. Plaintiffs have alleged that they are exposed to drinking water contaminated with a dangerous chemical, and that is sufficient to state a claim for relief. Whether plaintiffs have raised a genuine issue of material fact with respect to this [*48] claim is discussed below. Accordingly, the Court should deny defendants' motion for judgment on the pleadings with respect to this claim. i. Access to Personal Files (Claim I(C)(3)) Plaintiffs also allege that defendants have violated their Eighth Amendment rights by allowing unauthorized access to prisoner personal files. Plaintiffs allege: Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6951 Page 35 of 77 Page 16 of 30 Rouse v. Caruso Christopher Bradley Clare 57. Prisoners' files are presently kept unlocked, permitting unauthorized persons to gain access to them. There is personal and confidential prisoner and family information kept in the presentence information report (PSI). 58. The MDOC does not authorize officers to access the PSI or prisoner's files. This is because it can and does cause civil unrest and fights. Amended Compl., ¶¶ 57-58. The Court should conclude that these allegations fail to state a claim upon which relief may be granted. "[T]he Constitution does not encompass a general right to nondisclosure of private information." Doe v. Wigginton, 21 F.3d 733, 740 (6th Cir.1994) (internal quotation omitted). Plaintiffs' vague allegations that access to personal information can cause civil unrest and fights are insufficient to establish that defendants were deliberately indifferent to inmate safety. [*49] The Amended Complaint contains no allegations that unauthorized access in fact led to any specific incidences of violence in the prison. Further, plaintiffs have not alleged that these supervisory defendants were personally involved in leaving the personal files unlocked. Plaintiffs themselves indicate that the MDOC prohibits unauthorized access, and there is no allegation that these defendants were in any way responsible for securing the personal information. This is not the type of systemic conditions claim, such as plaintiffs' medical claim, for which personal responsibility may be imputed to the supervisory defendants. Accordingly, the Court should grant defendants' motion to dismiss this claim. 3. Access to Courts Claims (Count II) Defendants next seek dismissal of plaintiffs' access to courts claims. In these claims, plaintiffs allege that (1) the law library is too small and prisoners are therefore denied adequate law library time, see Amended Compl., ¶¶ 59-61; (2) the law library has limited books, and does not include necessary books such as older volumes of the United States Reports and Michigan Supreme Court Reports, see id. at ¶¶ 62-64; and (3) prison officials have confiscated [*50] Uniform Commercial Code information pursuant to a memorandum issued by defendant Caruso. The Court should conclude that these claims fail to state a claim upon which relief may be granted. a. Legal Standard Prisoners have a fundamental right of access to the courts. See Bounds v. Smith, 430 U.S. 817, 821, 97 S. Ct. 1491, 52 L. Ed. 2d 72 (1977). "The right springs from the Due Process Clauses of the Fifth and Fourteenth Amendments and the right of petition found in the First Amendment," Hodge v. Prince, 730 F. Supp. 747, 751 (N.D. Tex. 1990), as well as from the Privileges and Immunities Clause of Article IV. See Chambers v. Baltimore and Ohio R.R., 207 U.S. 142, 148, 28 S. Ct. 34, 52 L. Ed. 143, 6 Ohio L. Rep. 498 (1907). A prisoner's access to the courts must be adequate, effective and meaningful. See Bell v. City of Milwaukee, 746 F.2d 1205, 1261 (7th Cir. 1984); Ryland v. Shapiro, 708 F.2d 967, 972 (5th Cir. 1983). A prisoner asserting a denial of access to courts claim must satisfy the constitutional standing requirement by alleging an actual injury. See Lewis v. Casey, 518 U.S. 343, 349, 351-53, 116 S. Ct. 2174, 135 L. Ed. 2d 606 (1996). To meet this requirement, a plaintiff must show that the actions of the prison officials "hindered the prisoner's efforts to pursue a nonfrivolous claim." Penrod v. Zavaras, 94 F.3d 1399, 1403 (10th Cir. 1996); [*51] accord Lewis, 518 U.S. at 353; Myers v. Hundley, 101 F.3d 542, 544 (8th Cir. 1996); Stewart v. Block, 938 F.Supp. 582, 586 (C.D. Cal. 1996) (plaintiff must show "a specific instance in which he was actually denied access to the courts.") (internal quotation omitted). Further, "the injury requirement is not satisfied by just any type of frustrated legal claim." Lewis, 518 U.S. at 354. The right of access to the courts "does not guarantee inmates the wherewithal to transform themselves into litigating engines," and thus the right is limited to safeguarding prisoners' ability "to attack their sentences, either directly or collaterally, Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6952 Page 36 of 77 Page 17 of 30 Rouse v. Caruso Christopher Bradley Clare and in order to challenge the conditions of their confinement." Id. at 355. In other words, "a prisoner's right to access the courts extends to direct appeals, habeas corpus applications, and civil rights claims only." Thaddeus-X v. Blatter, 175 F.3d 378, 391 (6th Cir.1999) (en banc). Under Lewis, dismissal is appropriate where a prisoner fails to allege a specific, litigation-related detriment resulting from the prison official's conduct. See Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996). As the Supreme Court has explained, to establish an access [*52] to courts claim, the named plaintiff must identify a nonfrivolous, arguable, underlying claim . . . . It follows that the underlying cause of action, whether anticipated or lost, is an element that must be described in the complaint, just as much as allegations must describe the official acts frustrating the litigation. It follows, too, that when the access claim (like this one) looks backward, the complaint must identify a remedy that may be awarded as recompense but not otherwise available in some suit that may yet be brought. There is, after all, no point in spending time and money to establish the facts constituting denial of access when a plaintiff would end up just as well off after litigating a simpler case without the denial-of- access element. Christopher v. Harbury, 536 U.S. 403, 415, 122 S. Ct. 2179, 153 L. Ed. 2d 413 (2002). b. Analysis Here, plaintiffs have failed to allege any specific, litigation-related detriment resulting from the allegedly inadequate law library, nor have they identified "a nonfrivolous, arguable, underlying claim," Christopher, 536 U.S. at 415, lost by the allegedly inadequate law library. Plaintiffs only allegation regarding injury is a general one that the inadequate facilities "has prejudiced [*53] many prisoners because they missed their deadlines and lost their cases." Amended Compl., ¶ 60. This generic allegation does not allege any specific, litigation related harm to a nonfrivolous challenge to any prisoner's conviction or conditions of confinement, and is inadequate to state a claim under Lewis. Further, plaintiffs' allegation that "[e]ach prisoner has a constitutional right to 3 two hour slots per week," Amended Compl., ¶ 61, and their suggestion that the law library is required to stock particular case reporters, is without merit under Lewis. The Lewis Court explicitly noted that "[b]ecause Bounds did not create an abstract, freestanding right to a law library or legal assistance, an inmate cannot establish relevant actual injury simply by establishing that his prison's law library or legal assistance program is subpar in some theoretical sense." Lewis, 518 U.S. at 351. And the Court explicitly declined to adopt any exception to the actual injury requirement for claims alleging systemic law library inadequacies. See id. at 353 n.4. Accordingly, plaintiffs' complaint fails to state a claim of denial of access to courts. 8 8 Attempting to overcome this conclusion, plaintiffs [*54] point to matters outside the record suggesting that two of them did suffer a specific, litigation related harm. As noted above, these matters outside the pleadings are not properly before the Court on defendants' motion for judgment on the pleadings, and cannot cure the Amended Complaint's failure to state a claim. Even if the Court considered this evidence under a summary judgment standard, however, defendants would still be entitled to judgment in their favor. Plaintiffs point to their responses to defendants' Interrogatory No. 14, which asked each plaintiff: "List every lawsuit and legal proceeding in which you missed a deadline, lost your case, or were otherwise injured due to inadequate library time at the Mid-Michigan Correctional Facility and describe the injury." See, e.g., Pl.'s Br., Ex. 13. Plaintiff Lake responded simply: "Once while appealing/fighting a ticket." Id. This single statement does not describe a specific, litigation related harm, and in any event a challenge to a ticket is not a claim relating to the validity of the conviction or conditions of confinement which the right of access to courts protects. See Blanton v. Caruso, No. 1:10-cv-1187, 2011 U.S. Dist. LEXIS 4888, 2011 WL 202094, at *5-*7 (W.D. Mich. Jan. 19, 2011). [*55] Plaintiff Evans responded that he missed a Michigan Supreme Court deadline for filing his habeas corpus petition, and that a suit for false imprisonment was delayed. See Pl.'s Br., Ex. 10. Yet in his deposition plaintiff Evans responded, "I don't know," when asked how his habeas case was affected by inadequate law library time or whether he ever missed any deadlines or lost a case as a result of Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6953 Page 37 of 77 Page 18 of 30 Rouse v. Caruso Christopher Bradley Clare Nor does defendants' alleged confiscation of plaintiff's UCC materials state a claim for denial of access to courts. As noted above the right of access to courts is limited to the pursuant of direct appeals from a criminal conviction, habeas corpus petitions, and civil rights suits regarding conditions of confinement. See Lewis, 518 U.S. at 355. Any claim based on the UCC is not one of these types of actions. "There is nothing in the Uniform Commercial Code which would help plaintiff[s] challenge the legality of [*56] [their] conviction[s] or the conditions of [their] confinement. Accordingly, plaintiff[s] [are] unable to state a valid access to courts claim." Osborne v. Hill, No. 05-CV-641, 2006 U.S. Dist. LEXIS 28448, 2006 WL 1215084, at *5 (D. Ore. May 1, 2006); see also, Smith v. Catinella, No. 08-14118, 2009 U.S. Dist. LEXIS 111817, 2009 WL 4639112, at *9 (E.D. Mich. Dec. 1, 2009) (Lawson, J., adopting Report of Morgan, M.J.); Friske v. Scutt, No. 07-CV- 13747, 2009 U.S. Dist. LEXIS 14162, 2009 WL 454654, at *8 (E.D. Mich. Feb. 24, 2009) (Rosen, J.); Tomzek v. Blatter, No. 1:08-cv-635, 2008 U.S. Dist. LEXIS 86108, 2008 WL 4738942, at * 5 (W.D. Mich. Oct. 24, 2008); Frazier v. Diguglielmo, 640 F. Supp. 2d 593, 599 (E.D. Pa. 2008). And even if plaintiffs attempted to use the UCC to challenge their convictions or conditions of confinement, such claims would be frivolous. As noted above, it is plaintiffs' burden to establish the nonfrivolous nature of their underlying claims. See Christopher, 536 U.S. at 415. The courts have repeatedly held that the UCC has no bearing on the validity of a prisoner's conviction or subsequent incarceration. See, e.g., United States v. Holloway, 11 Fed. Appx. 398, 400 (6th Cir. 2001); United States v. Reed, No. 4:09-CR-076, 2010 U.S. Dist. LEXIS 4864, 2010 WL 99128, at *4 (D.N.D. Jan. 5, 2010); Chandler v. Curtis, No. 05-CV-72608-DT, 2005 U.S. Dist. LEXIS 26398, 2005 WL 1640083, at *2 (E.D. Mich. July 13, 2005) [*57] (Cohn, J.). Indeed, the federal inadequate law library time. See id., Ex. 11, at 40. Further, these two instances, even if sufficient to establish an access to courts claim with respect to these plaintiffs, are insufficient to establish a systemic failure or justify system-wide relief. See Lewis, 518 U.S. at 358-60. courts have repeatedly characterized such claims as frivolous. See, e.g., Noble v. Pearson, No. 5:09-cv- 123, 2009 U.S. Dist. LEXIS 113959, 2009 WL 4728698, at *4 (S.D. Miss. Dec. 3, 2009); Kestner v. Lafler, No. 1:08-cv-877, 2009 U.S. Dist. LEXIS 103230, 2009 WL 3754393, at *1 (W.D. Mich. Nov. 5, 2009); Diaz v. Diaz, No. 7:09-cv-00017, 2009 U.S. Dist. LEXIS 7412, 2009 WL 272870, at *1 (W.D. Va. Feb. 3, 2009); Smith v. Burt, No. 08-CV- 14239, 2008 U.S. Dist. LEXIS 86767, 2008 WL 4791348, at *2 (E.D. Mich. Oct. 24, 2008) (Cohn, J.); Bartz v. Van De Graaf, No. 1:07-cv-219, 2008 U.S. Dist. LEXIS 53052, 2008 WL 2704882, at *2 (D. Vt. July 8, 2008); Hamby-Bey v. Bergh, No. 08- CV-13284, 2008 U.S. Dist. LEXIS 60776, 2008 WL 3286227, at *2 (E.D. Mich. Aug. 7, 2008) (Battani, J.). Thus, even if plaintiffs were attempting to use UCC materials in an action in the class of court cases protected by the access-to-courts right under Lewis, plaintiffs cannot show that they were hindered in their ability to pursue a nonfrivolous action. Accordingly, the Court should grant defendants' motion for judgment on the pleadings with respect to plaintiffs' access to courts claims. 4. Property Deprivation/Due Process Claims (Count III) Finally, defendants seek judgment on the [*58] pleadings with respect to plaintiffs' claims that they were deprived of property without due process of law, asserted in Count III of the Amended Complaint. In this Count, plaintiffs allege that: (1) a class member had his guitar seized without a proper hearing; (2) prisoners are not given a hearing when funds are removed from their accounts; and (3) the prison is removing more money than required by statute or court order. See Amended Compl., ¶¶ 67-73. The Court should conclude that defendants are entitled to judgment on the pleadings with respect to these claims. First, although defendants have clearly moved for judgment on the pleadings with respect to the claims asserted in Count III, see Def.s' Mot., at 1; Br. in Supp. of Def.s' Mot., at 13-17, plaintiffs do not address this claim, or this aspect of defendants' Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6954 Page 38 of 77 Page 19 of 30 Rouse v. Caruso Christopher Bradley Clare motion, in their response brief. "It is well understood . . . that when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded." Hopkins v. Women's Div., General Bd. of Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003), aff'd, [*59] 98 Fed. Appx. 8 (D.C. Cir. 2004). Because plaintiffs "failed to respond to [defendants] argument or otherwise address this claim, the Court [may] deem it abandoned." Bute v. Schuller Int'l, Inc., 998 F. Supp. 1473, 1477 (N.D. Ga. 1998); see also, Colon ex rel. Disen-Colon v. Colonial Intermediate Unit 20, 443 F. Supp. 2d 659, 677 (M.D. Pa. 2006). Second, plaintiffs' claim fails on the merits. The Fourteenth Amendment does not protect against all of the State's deprivations of life, liberty, or property. See Parratt v. Taylor, 451 U.S. 527, 537, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981). It protects against only those deprivations of life, liberty, or property that are "without due process of law." Id. Accordingly, the Supreme Court has recognized that the negligent deprivation of an inmate's property does not violate due process if the state provides an adequate remedy to redress the wrong. See id. at 537, overruled in part by Daniels v. Williams, 474 U.S. 327, 328, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986) (negligence does not amount to a "deprivation" at all, thus the Due Process Clause is not implicated). Likewise, "an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of [*60] the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available." Hudson v. Palmer, 468 U.S. 517, 533, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984). In asserting a violation of procedural due process, a plaintiff must plead and prove that available state procedures for redressing the wrong are not adequate. See Vicory v. Walton, 721 F.2d 1062, 1065-66 (6th Cir. 1983); see also, Wilson v. Beebe, 770 F.2d 578, 584 (6th Cir. 1985) (en banc). Here, plaintiffs have made no allegation that Michigan does not have an adequate post- deprivation remedy to address their alleged property loss. Michigan's grievance system provides state prisoners with an adequate procedure to challenge actions taken by prison officials. An inmate may file a written grievance; if its resolution is unsatisfactory to plaintiff, he may then seek sequential evaluation of its disposition by supervisory staff, the warden, the MDOC deputy director, the department director, and the ombudsman. Furthermore, if these five levels prove insufficient, Michigan law allows for judicial review of administrative decision in the state courts. See De Walt v. Warden, Marquette Prison, 112 Mich. App. 313, 315 N.W.2d 584, 585 (Mich. Ct. App. 1982); [*61] Mich. Comp. Laws §§ 791.251 et seq. Finally, a state tort remedy is available. These remedies have been held to be adequate under federal due process standards. See Copeland v. Machulis, 57 F.3d 476, 480 (6th Cir. 1995); Branham v. Spurgis, 720 F. Supp. 605, 608 (W.D. Mich. 1989). In short, plaintiffs have "not shown that no adequate postdeprivation state remedy was available," and therefore they have not alleged a violation of their procedural due process rights so as to enable them to state a § 1983 claim. See Barnier v. Szentmiklosi, 810 F.2d 594, 600 (6th Cir. 1987). Accordingly, the Court should grant defendants' motion for judgment on the pleadings with respect to this claim. D. Defendants' Motion for Summary Judgment In a separate motion, defendants seek summary judgment with respect to plaintiffs' Eighth Amendment claims alleging dangerous noise levels (Claim I(A)(2)), poor ventilation (¶¶ 42-44 of Claim I(B)(1)), crammed living space (Claim I(B)(2)), lack of fire suppression system (Claim I(C)(1)), and overcrowding (Claim I(C)(2)). 1. Legal Standard Under Rule 56, summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6955 Page 39 of 77 Page 20 of 30 Rouse v. Caruso Christopher Bradley Clare [*62] the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "An issue of fact is 'genuine' if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Hedrick v. Western Reserve Care Sys., 355 F.3d 444, 451 (6th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). "A fact is material only if its resolution will affect the outcome of the lawsuit." Hedrick, 355 F.3d at 451-52 (citing Anderson, 477 U.S. at 248). In deciding a motion for summary judgment, the Court must view the evidence in a light most favorable to the non- movant as well as draw all reasonable inferences in the non-movant's favor. See Sutherland v. Michigan Dep't of Treasury, 344 F.3d 603, 613 (6th Cir. 2003); Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003). "The moving party has the initial burden of showing the absence of a genuine issue of material fact as to an essential element of the non-moving party's case." Hedrick, 355 F.3d at 451 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). To meet this burden, the moving party need not produce evidence showing the absence of a genuine issue of material fact. Rather, "the burden [*63] on the moving party may be discharged by 'showing' - that is, pointing out to the district court - that there is an absence of evidence to support the non- moving party's case." Celotex Corp., 477 U.S. at 325. "Once the moving party satisfies its burden, 'the burden shifts to the nonmoving party to set forth specific facts showing a triable issue.'" Wrench LLC v. Taco Bell Corp., 256 F.3d 446, 453 (6th Cir. 2001) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)); see also, Fed. R. Civ. P. 56(e). To create a genuine issue of material fact, however, the non-movant must do more than present some evidence on a disputed issue. As the Supreme Court has explained: There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the [non-movant's] evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Anderson, 477 U.S. at 249-50. (citations omitted); see Celotex Corp., 477 U.S. at 322-23; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). Thus, "[t]he existence of a mere scintilla of evidence in support of the [*64] non-moving party's position will not be sufficient; there must be evidence on which the jury could reasonably find for the non-moving party." Sutherland, 344 F.3d at 613. 2. Analysis a. Dangerous Noise Levels (Claim I(A)(2)) In their complaint, plaintiffs allege that they are subjected to dangerous noise levels. Specifically, they allege: 30. There is an Air Raid Siren placed on top of Housing Unit-F. This siren sounds off for twenty minutes or longer at least once a month. This has caused hearing damage to the Plaintiffs and the putative class members. 31. There are two Bull Horns located in each of the housing units in the sleeping area. They must reach Prisoners under it and located 50 ft. away in cubicles. Amended Compl., ¶¶ 30-31. Defendants argue that they are entitled to summary judgment on this claim because plaintiffs have failed to produce any objective medical evidence showing any hearing impairment, or to show that defendants were aware of any danger of hearing loss. Defendants further argue that plaintiffs have failed to produce any evidence quantifying the noise level from which a jury could find that the noise levels presented an unacceptable risk of hearing loss. The Court [*65] should agree. Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6956 Page 40 of 77 Page 21 of 30 Rouse v. Caruso Christopher Bradley Clare There is no doubt that "[e]xcessive noice in a prison can state a valid Eighth Amendment claim." Green v. Strack, No. 94-17214, 1995 U.S. App. LEXIS 14451, 1995 WL 341544, at *1 (9th Cir. June 8, 1995). To do so, however, the noise must be so excessive and pervasive as to pose a serious risk of injury, see Lunsford v. Bennett, 17 F.3d 1574, 1580 (7th Cir. 1994), or pain, see Williams v. Boles, 841 F.2d 181, 183 (7th Cir. 1988), or sleep deprivation, see Caldwell v. District of Columbia, 201 F. Supp. 2d 27, 35 (D.D.C. 2001). On the other hand, "subjecting a prisoner to a few hours of periodic loud noises that merely annoy, rather than injure the prisoner does not demonstrate a disregard for the prisoner's welfare." Lunsford, 17 F.3d at 1580. As one court has observed, the cases finding an Eighth Amendment violation based on excessive noise have all "involved incessant noise throughout the day and night, which at times was significantly beyond acceptable decibel levels and could have resulted in possible hearing loss." Sterling v. Smith, No. CV606-103, 2007 WL 781274, at *3 (S.D. Ga. Mar. 08, 2007) (discussing Keenan v. Hall, 83 F.3d 1083, 1090 (9th Cir. 1996); Antonelli v. Sheahan, 81 F.3d 1422, 1433 (7th Cir. 1996); [*66] Toussaint v. McCarthy, 597 F. Supp. 1388, 1410 (N.D. Cal. 1984), rev'd in part on other grounds, 801 F.2d 1080, 1110 (9th Cir. 1986)). Here, plaintiffs have failed to present any evidence regarding the severity or pervasiveness of the noise. They allege only that the air raid siren on Unit F sounds off for twenty minutes at least once a month. They provide no evidence for the decibel level of the siren or bull horns, nor any evidence regarding the frequency with which they are sounded. 9 Nor have they presented any evidence that the noise levels created a risk of hearing impairment, pain, or loss of sleep. In the absence of 9 In their brief, plaintiffs cite to only one item of evidence supporting their excessive noise claim, page 33 of the deposition transcript of plaintiff Hoffman. See Pl..'s Br., at 11. The portion of plaintiff Hoffman's deposition attached to the response, however, does not include page 33, and none of the included [*67] pages address the noise level in the prison. See id., Ex. 14. any evidence regarding the severity, frequency, and duration of the allegedly excessive noise, defendants are entitled to summary judgment. See Lucien v. Gramley, No. 94-3725, 1996 U.S. App. LEXIS 26767, 1996 WL 590539, at *2-*3 (7th Cir. Oct. 10, 1996); Green, 1995 U.S. App. LEXIS 14451, 1995 WL 341544, at *1. b. Poor Ventilation (¶¶ 42-44 of Claim I(B)(1)) Plaintiffs allege that the ventilation at MMC is inadequate. Specifically, they allege that: 42. The ventilation at the MMC has not worked in F-Unit for months. Ventilation in other units only works half the time. The exhaust system in H-Unit runs for one hour and shuts off for one hour, back and forth throughout the day. Each Unit has a high and low side system. These systems are supposed to cycle back and forth so that the ventilation is constantly working. 43. The Filtering System is very poor and is not properly maintained by Professional Personnel. The air is very stale and constantly reeks of cigarette smoke, which causes headaches and sickness. There are only two fresh air handlers (Air Intakes) for up to 140 prisoners. These bring in air from the Attic which has Black Mold in it, in violation of State Code and the Fresh Air Act, MCL 333.12605. Amended Compl., ¶¶ 42-43. Defendants seek summary judgment on this claim, arguing that plaintiffs' allegations of headaches and sickness constitutes a de minimis injury, and that plaintiffs' allegations regarding the functioning of [*68] the ventilation system is unsupported by the evidence. In support of this argument, defendants point to their response to plaintiffs' Interrogatory No. 13, which states: Each housing unit has two exhaust systems that produce 1950 cubic feet per minute (cfm) each, six exhaust vents 24" x 24" in the ceiling of each unit that allows 650 cfm each to be vented Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6957 Page 41 of 77 Page 22 of 30 Rouse v. Caruso Christopher Bradley Clare out of the unit. Each housing unit has four exterior wall ventilators that blend fresh air from the outside with the interior air to reach the temperature set on the thermostat in the units, during the heating season. These systems were installed at the time of construction in 1989. These systems are maintained semi- annually. No known defects or deficiencies were noted at the time of the request. Def.s' Br., Ex. 1, at 5. Defendants also attached to their interrogatory response copies of completed preventative maintenance work orders, reflecting invoiced work for preventative maintenance on a roughly semi-annual basis from July 2006 through August 2008. See id. at 10-22. Plaintiffs' principal rejoinder is to focus on their claims that the prison is inadequately heated, and argue that this should be considered in conjunction with their [*69] inadequate ventilation claims. However, as explained above plaintiffs' amended complaint fails to state a claim of inadequate heating. With respect to the ventilation issues specifically, plaintiffs point only to the affidavit of plaintiff Lake, who avers that "[i]n the unit the air is very stale. There is much cigarette smoke in the air[.]" Pl.s' Br., Ex. 1, at 4. 10 The Court should conclude that this evidence is insufficient to withstand summary judgment. "Inadequate ventilation and air flow violates the Eighth Amendment if it undermines the health of inmates and the sanitation of the penitentiary." Keenan v. Hall, 83 F.3d 1083, 1090 (9th Cir. 1996) (internal quotation omitted). Plaintiffs, however, have failed to provide any evidence that the ventilation in the prison is inadequate, or that the ventilation system undermines the health and safety of the inmates. "The Eighth Amendment does not guarantee a certain [*70] type of ventilation system or a certain rate of air exchange." Bolton v. Goord, 992 F. Supp. 604, 628 (S.D.N.Y. 1998). Defendants 10 Plaintiffs also cite to the deposition transcripts of plaintiffs Hoffman and Evans. However, the testimony cited to discusses only the alleged inadequate heating; neither plaintiff testified with respect to inadequate ventilation. See Pl.'s Br., Ex. 11, at 34; Ex. 14, at 18. have provided an explanation of the ventilation system, as well as maintenance records showing that it was regularly maintained. In response, plaintiffs have "offered only [the] conclusory allegation[] [of plaintiff Lake], without backing from medical or scientific sources, that the rank air exposed him to diseases and caused respiratory problems which he would not otherwise have suffered. Such conditions do not fall below 'the minimal civilized measure of life's necessities.'" Dixon v. Godinez, 114 F.3d 640, 645 (7th Cir. 1997) (quoting Farmer v. Brennan, 511 U.S. at 834); see also, King v. Berghuis, No. 1:10-cv-57, 2010 U.S. Dist. LEXIS 12558, 2010 WL 565373, at *4 (W.D. Mich. Feb. 13, 2010) (plaintiffs' allegations that inadequate ventilation system "cause[d] them discomfort in the form of headaches, sinus problems and nose bleeds" did not allege sufficiently severe deprivation to state conditions of confinement claim). Plaintiff Lake's averment that the air was stale is insufficient to raise a genuine issue of material fact that the ventilation was inadequate. See Vasquez v. Frank, No. 05-C-528-C, 2007 U.S. Dist. LEXIS 82106, 2007 WL 3254702, at *7 (W.D. Wis. Nov. 02, 2007) [*71] ("Plaintiff refutes the adequacy of the ventilation, relying on the way it felt to him and other prisoners. Again, although plaintiff can testify to how he felt, he is not qualified to give an opinion of the actual quality of the ventilation. Without any basis for finding that the air quality was so poor as to constitute a risk to plaintiff's health, I cannot find a genuine issue of material fact regarding the adequacy of the ventilation."), aff'd, 290 Fed. Appx. 927, 930 (7th Cir. 2008); Malone v. Becher, NA 01- 101-C H/H, 2003 U.S. Dist. LEXIS 15790, 2003 WL 22080737, at *15 (S.D. Ind. Aug. 29, 2003) ("With respect to the issue of ventilation, at most, plaintiffs have alleged that at times the air was 'stale,' 'nasty,' or 'funky.' Plaintiffs have not offered any admissible evidence of a serious ventilation problem, let alone one that had risen to the level of a constitutional violation."). Further, plaintiffs cannot establish that defendants were deliberately indifferent under the subjective prong of the Farmer test, in light of the evidence establishing Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6958 Page 42 of 77 Page 23 of 30 Rouse v. Caruso Christopher Bradley Clare regular maintenance of the ventilation system. See Vasquez, 290 Fed. Appx. at 930 (no deliberate indifference shown where prison officials believed ventilation [*72] system was adequate). Accordingly, the Court should grant defendants' motion for summary judgment with respect to this claim. c. Living Space/Overcrowding (Claims I(B)(2) and I(C)(2)) Plaintiffs allege that crammed living conditions and overcrowding have resulted in a denial of their Eighth Amendment rights. Specifically, plaintiffs allege that inmates are housed four inmates in a 6' x 7' area, giving each prisoner approximately 10 square feet of living space. See Amended Compl., ¶ 20. They also allege that the prison has only two officers per every 140 inmates. See id., ¶ 21. Plaintiffs allege that the space available for each prisoner is below the standard 60 square feet of living space set by the American Correctional Association, see id. at 45, and that the crowding has "caused many fights, thefts, and arguments." Id., ¶ 46. Plaintiffs further allege that "[most of the activities at the MMC are taxed over their maximum capacities. This includes the yard, chow hall, and school." Id., ¶ 56. The Court should conclude that defendants are entitled to summary judgment on these claims. "Overcrowding per se is not unconstitutional; what must be tested against constitutional standards are [*73] the basic living conditions in a jail." Fischer v. Winter, 564 F. Supp. 281, 298 (N.D. Cal. 1983); see also, Simpson v. Horn, 25 F. Supp. 2d 563, 571 (E.D. Pa. 1998). Overcrowding violates the Eighth Amendment only when it "leads] to deprivations of essential food, medical care, or sanitation" or "increasers] violence among inmates or create other conditions intolerable for prison confinement." Rhodes v. Chapman, 452 U.S. 337, 348, 101 S. Ct. 2392, 69 L. Ed. 2d 59 (1981); see also, Simpson, 25 F. Supp. 2d at 571. It is not enough for a court to conclude "in the abstract that prison overcrowding and double Helling . . . generally results in serious harm to the inmates. . . . A court is under the obligation to examine the actual effect of challenged conditions upon the well-being of the prisoners." Id. at 367 (Brennan, J., concurring). To the extent plaintiffs' claims are based on the amount of living space they are afforded, the claim is without merit. Contrary to plaintiffs' allegations, defendants have presented evidence that each inmate has more than 10 square feet of living space. In response to plaintiffs' Interrogatory No. 14, defendants state that each cubicle is 249.48 square feet, and houses either 7 or 8 prisoners. [*74] This amounts to 35.64 or 31.185 square feet of living space per prisoner, in line with the 31.5 square feet afforded the prisoners in Rhodes, see Rhodes, 452 U.S. at 343. The Rhodes Court found that this did not amount to an Eighth Amendment violation. Nor have plaintiffs presented any evidence that the crowding at MMC has lead to deprivations of essential food, medical care, and sanitation, or lead to increased violence among inmates. Plaintiffs assert that "forcing seven inmates to occupy a space constructed to house four has increased the number of fights and near fights in STF." Pl.s' Br., at 14. The only evidence they cite in support of this claim, however, is their own generalized averments that "[t]he overcrowding has cause[d] more fights and arguments in the unit and/or the yard." Id., Ex. 1, at 4 (Lake affidavit); see also, id., Ex. 3, at 4 (Boone affidavit) ("The living space is very confined. Fights, arguments, etc., break out due to this cramping issue."). They cite to no evidence, however, of a causal connection between the crowded conditions and the incidents of violence. They do not present, for instance, any evidence regarding the frequency of fights over time as the [*75] occupancy of the prison has increased. "In order to overcome a motion for summary judgment, plaintiff must present evidence that violence within the jail increased at a rate disproportionate to the population as a result of overcrowding. Plaintiff[s] merely claims that there was an increase in fighting and disagreements when the cells were crowded." Ramirez v. City and County of San Francisco, No. C 89-4528, 1997 U.S. Dist. LEXIS 4417, 1997 WL Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6959 Page 43 of 77 Page 24 of 30 Rouse v. Caruso Christopher Bradley Clare 33013, at *5 (N.D. Cal. Jan. 23, 1997) (citing Rhodes, 452 U.S. at 343); see also, Rhodes, 452 U.S. at 343 (no Eighth Amendment violation where evidence showed only that violence increased in proportion to the prison population plaintiffs "failed to produce evidence that double Helling itself caused greater violence."). Plaintiffs also contend that "the overcrowding has resulted in a denial of basic hygienic needs" because "23.3 inmates share a single shower, and 17.5 inmates share a single toilet." Pl.s' Br., at 14- 15. Beside citing these numbers, however, plaintiffs present no evidence that shower and toilet facilities are insufficient to meet their basic hygienic needs. There is no evidence regarding the frequency with which inmates are able to shower, nor is there any [*76] allegation or evidence that the number of toilets causes sanitation or health problems. The mere fact that a number of prisoners are required to share shower and toilet facilities, without more, is insufficient to establish an Eighth Amendment violation. See Alston v. Coughlin, 668 F. Supp. 822, 830-31 (S.D.N.Y. 1987) (ratios as high as 28 inmates per shower and 13 inmates per toilet did not establish Eighth Amendment violation where there was no evidence that inmate hygiene was affected); Miles v. Bell, 621 F. Supp. 51, 58-62 (D. Conn. 1985) (fact that 14-24 inmates shared single shower head and 10-15 inmates share single toilet insufficient to establish Eighth Amendment violation where plaintiffs did "not challenge the sanitary conditions of the toilet and shower facilities, but only the number of toilets and showers. Plaintiffs cited no case law in support of their theory that the number of toilets and showers is constitutionally inadequate."). Plaintiffs also assert that "the overcrowding has denied Plaintiffs the basic necessity of health," because they "were unable to secure prompt medical attention" and because the "overcrowded living conditions created a situation in which communicable [*77] illnesses" such as the flu and MRSA "were quickly and easily spread." Pl.s' Br., at 15. Again, however, plaintiffs have failed to provide any evidence to support these assertions. For instance, plaintiff Lake's affidavit avers various disputes with the treatment he received, and claims that he had to wait to see an outside specialist, see Pl.'s Br., Ex. 1, at 1, but it does not aver that he suffered any delay in seeing the facility medical staff, nor does it provide any evidence that the alleged inadequacies in his treatment resulted from the population level in the prison. And plaintiffs have presented no evidence of any serious disease outbreaks, only plaintiff Hoffman's testimony that four people in his unit contracted MRSA. This evidence is insufficient to create a genuine issue of material fact with respect to plaintiffs' overcrowding claim. Accordingly, the Court should conclude that defendants are entitled to summary judgment with respect to these claims. d. Denial of Hygiene (Claim I(B)(3)) Plaintiffs allege that they were denied proper hygiene in two ways. First, plaintiffs allege that "[t]he MDOC has a policy that forbids hygiene for one year to an indigent prisoner who was [*78] terminated from school, work, or refused a job." Amended Compl., ¶ 48. Second, they allege that "[t]he MDOC has no provision to provide hygiene products if a prisoner's hygiene products are stolen or lost." Id., ¶ 49. In moving for summary judgment with respect to this claim, defendants address only the second allegation, contending that they are entitled to summary judgment because they implemented a policy by which "care packages" were to be provided, and had no personal involvement in the distribution of such items or lack thereof. With respect to the claim asserted in ¶ 49, the Court should agree that defendants are entitled to summary judgment. In response to plaintiffs' Interrogatory No. 16, defendants indicated that in cases of theft or loss of personal hygiene items, Assistant Resident Unit Supervisors are provided care packages of hygiene products to distribute. See Def.s' Br., Ex. 1, at 6. Plaintiffs have presented no evidence to rebut this assertion. Thus, the evidence shows that the defendant supervisory officials in fact promulgated Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6960 Page 44 of 77 Page 25 of 30 Rouse v. Caruso Christopher Bradley Clare a policy of replacing lost and stolen hygiene products, and were therefore not deliberately indifferent. The defendant supervisory officials [*79] cannot be held vicariously liable for any failures on the part of the Assistant Resident Unit Supervisors to properly distribute the care packages. However, the Court should conclude that defendants' are not entitled to summary judgment with respect to the allegation in ¶ 48 that defendants instituted a policy of denying indigent status for the purchase of hygiene products to inmates terminated from school or work. Such a policy, if it in fact exists, would be unconstitutional. See Flanory v. Bonn, 604 F.3d 249, 255 (6th Cir. 2010) ("A prisoner whose inability to purchase hygiene items results from his rejection of educational status satisfies the objective and subjective requirements of an Eighth Amendment violation when he alleges a complete deprivation and shows that the deprivation resulted from a deliberate indifference to hygiene needs."). Plaintiff Evans testified that such a policy, either formal or informal, in fact existed, see Pl.s' Br., Ex. 11, at 58, and defendants have presented no evidence to the contrary. Accordingly, the Court should conclude that defendants are entitled to summary judgment with respect to the hygiene claim asserted in ¶ 49, but are not entitled to [*80] summary judgment with respect to the hygiene claim asserted in ¶ 48. e. Water Contamination (Claim I(B)(4)) Defendants next contend that they are entitled to summary judgment with respect to plaintiffs' water contamination claims. The Court should agree. The evidence in the record fails to raise a genuine issue of material fact with respect to whether the drinking water is, in fact, unsafe to drink, or with respect to whether the defendants were deliberately indifferent to plaintiffs' health and safety. A 2005 Water Quality Report for St. Louis prepared by the United States Environmental Protection Agency (EPA) indicated that levels of arsenic, barium, fluoride, selenium, lead, and copper were all well below the EPA's Maximum Containment Level for safe drinking water. See Def.s' Br., Ex. B, at 14. Although p-CBSA is unregulated and therefore does not have a Maximum Containment Level, testing indicated the presence of p-CBSA in the 21- 180 parts per billion (ppb) range. See id. In a March 30, 2006, e-mail to prison officials, St. Louis City Manager Robert McConkie informed the MDOC that the EPA provided information to the city about toxicology studies indicating that p-CBSA is not a carcinogen, [*81] was not retained in the body because it is water soluble, and was not harmful when consumed at levels below 25,000 parts per billion (ppb). Testing of the city's wells indicated p- CBSA levels of 21-180 ppb. See Def.'s Br., Ex. 2, at 8. The e-mail noted that the Michigan Department of Environmental Quality (MDEQ) suggested a lower threshold than the EPA, 7,300 ppb, but that the p-CBSA levels in the city's wells were still significantly below this threshold. See id. at 9. A 2007 Water Quality Report for St. Louis contains findings similar to the 2005 Report, with p-CBSA levels having decreased to 0-190 ppb in the wells tested. See id. at 16. The 2007 Report also indicates in a footnote that "USEPA toxicology studies have shown that p-CBSA is not teratogenic or carcinogenic in concentrations lower than 25,000 ppb." Id. The EPA's Five-Year Review Report prepared in September 2007, reflects similar findings. See Pl.s' Br., Ex. 5, at 21. Plaintiffs have presented no evidence to rebut these water quality reports. They assert only that the long term effects of arsenic and p-CBSA are not fully known, and thus any level of contamination is unacceptable. Even were this so, however, plaintiffs [*82] cannot show that defendants were deliberately indifferent under the subjective prong of the Eighth Amendment inquiry. There is no evidence that defendants have acted in reckless disregard for the health and safety of the inmates. On the contrary, defendants have reasonably relied on the information given them concerning the level of contamination of the city's wells and the non- harmful effects of those levels by the state and Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6961 Page 45 of 77 Page 26 of 30 Rouse v. Caruso Christopher Bradley Clare federal agencies possessing expertise in this area. Plaintiffs simply cannot show that such reliance amounts to deliberate indifference. As the Seventh Circuit has aptly explained: Poisoning the prison water supply or deliberately inducing cancer in a prisoner would be forms of cruel and unusual punishment, and might be even if the harm was probabilistic or future rather than certain and immediate. But failing to provide a maximally safe environment, one completely free from pollution or safety hazards, is not. Many Americans live under conditions of exposure to various contaminants. The Eighth Amendment does not require prisons to provide prisoners with more salubrious air, healthier food, or cleaner water than are enjoyed by substantial numbers of free Americans. [*83] It would be inconsistent with this principle to impose upon prisons in the name of the Constitution a duty to take remedial measures against pollution or other contamination that the agencies responsible for the control of these hazards do not think require remedial measures. If the environmental authorities think there's no reason to do anything about a contaminant because its concentration is less than half the maximum in a proposed revision of the existing standards, prison officials cannot be faulted for not thinking it necessary for them to do anything either. They can defer to the superior expertise of those authorities. Carroll v. DeTella, 255 F.3d 470, 472-73 (7th Cir. 2001) (citations omitted); see also, Wright v. New York State Dep't of Correctional Servs., No. 06 Civ. 03400, 2008 U.S. Dist. LEXIS 106507, 2008 WL 505660, at *12 (S.D.N.Y. Oct. 10, 2008) (reliance on statements from state health official regarding level of water contamination "was not even negligence, let alone deliberate indifference to contamination."), magistrate judge's report adopted, 2008 U.S. Dist. LEXIS 96647, 2008 WL 5084193 (S.D.N.Y. Nov. 24, 2008), aff'd, 372 Fed. Appx. 175 (2d Cir. 2010); Brown v. Williams, 399 F. Supp. 2d 558, 566-67 (D. Del. 2005) (footnote [*84] and citations omitted) ("Even though State defendants knew of the inmates' concern about the water conditions, there is nothing to suggest that State defendants knew that the water posed serious health risks. To the contrary, maintenance at HRYCI, the City of Wilmington, and Delaware Health and Social Services all informed State defendants that the water was not contaminated. In light of these findings, and absence of evidence indicating otherwise, it cannot be said that State defendants had the requisite awareness for a finding of deliberate indifference."). Accordingly, the Court should conclude that defendants are entitled to summary judgment on plaintiffs' water contamination claims. f. Fire Safety (Claim I(C)(1)) Finally, defendants seek summary judgment with respect to plaintiff's fire safety claim. In this claim, plaintiffs allege: 53. None of the buildings at the MMC have automatic fire suppression systems, in violation of state and Federal law. 54. All of the windows are now being blocked by bunk beds, which restrict the emergency exits and/or emergency entrances for rescue personnel. This violates state building codes and can be a fire hazard. 55. Many of the windows in the unit [*85] sleeping areas are not up to state and Federal codes. State of Michigan building codes require the use of "Egress Windows", that are at least 4 ft. in width so that rescue personnel can enter in an emergency. This is a level one prison, the last stop before returning home. Amended Comp., ¶¶ 53-55. The Court should conclude that defendants are entitled to summary judgment with respect to these claims. "The Eighth Amendment requires that prison officials provide adequate fire safety to inmates." Johnson v. Texas Bd. of Criminal Justice, 281 Fed. Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6962 Page 46 of 77 Page 27 of 30 Rouse v. Caruso Christopher Bradley Clare Appx. 319, 321-22 (5th Cir.2008). However, "[w]hile fire and electrical codes can be helpful in determining whether a lack of fire safety can constitute a violation of the Eighth Amendment, they are not determinative, and the Eighth Amendment does not require that prisons meet fire and electrical codes." Id. at 322. "Unless objective assessment of prison conditions compels the conclusion that inmates are being subjected to unreasonable safety risks, the federal courts must avoid becoming enmeshed in the minutiae of prison operations, and should decline to second-guess prison administrators in the operation of correctional facilities." Coniglio v. Thomas, 657 F. Supp. 409, 414 (S.D.N.Y. 1987) [*86] (citing Bell v. Wolfish, 441 U.S. 520, 562, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979). Here, plaintiffs have failed to present any evidence that fire safety measures at the prisons are inadequate. Although they allege that some windows may be blocked and that the prison lacks an automatic sprinkler system, they present no evidence regarding these matters, nor do they "address numerous factors affecting fire safety at the prison. [They] fail[] to [provide any evidence] that the prison lacks a comprehensive fire safety plan or address other factors such as fire extinguishers; smoke detectors in the cell corridors, stairwells and elevator landings; the fire alarm system, evacuation plans, and fire drills; locking devices on cell doors; the prison's combustible load; fire walls; or smoke containment capabilities in the ventilation systems," all factors relevant to whether defendants were deliberately indifferent to the risk of harm to prisoners from fire. Cable v. Wall, No. 09-439, 2010 U.S. Dist. LEXIS 37176, 2010 WL 1486494, at *5 (D.R.I. Mar. 18, 2010), magistrate judge's report adopted, 2010 U.S. Dist. LEXIS 37143, 2010 WL 1531374 (D.R.I. Apr. 13, 2010). 11 Defendants have presented evidence that 11 Plaintiffs' allegations that fire safety is inadequate because some windows may be blocked by bunk beds and because the windows are not properly sized egress windows border on absurd. The windows of a prison are not supposed to allow a means of ingress or egress. Plaintiffs do not allege or provide any evidence that the designated emergency exit doors are blocked. each housing unit has four evacuation doors, smoke detectors in or just outside [*87] of each room or cubicle, and multiple fire alarms and fire extinguishers. See Def.s' Br., Ex. C, at 16-23. The prisons also have detailed procedures for conducting fire evacuation drills. See id. at 12-15. Plaintiffs have presented no evidence to suggest that these fire safety measures are inadequate, much less that they exhibit deliberate indifference to the safety of the inmates. Moreover, plaintiff's have failed to raise a genuine issue of material fact regarding defendants' personal involvement. The MDOC's regulations make clear that the Physical Plant Division is responsible for developing and implementing fire safety protocols, evaluating fire safety matters, and ensuring compliance with state fire codes. See Def.s' Br., Ex. C, at 2-11, MDOC Policy Directive 04.03.120. Thus, plaintiffs cannot show that defendants were [*88] personally involved in creating the allegedly inadequate fire safety conditions. For these reasons, the Court should grant defendants' motion for summary judgment with respect to these claims. 3. Qualified Immunity Defendants also contend that they are entitled to summary judgment on the basis of qualified immunity. As a general matter, "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). The purpose behind qualified immunity is to protect public officials "from undue interference with their duties and from potentially disabling threats of liability." Id. at 806. In determining whether an official is entitled to qualified immunity, a court asks "whether the violation involved a clearly established rights of which a reasonable official would have known" such that the official's conduct "was objectively Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6963 Page 47 of 77 Page 28 of 30 Rouse v. Caruso Christopher Bradley Clare unreasonable in light of the clearly established constitutional right." Feathers v. Ahey, 319 F.3d 843, 848 (6th Cir. 2003); see also, Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001); [*89] Dickerson v. McClellan, 101 F.3d 1151, 1157-58 (6th Cir. 1996). If the Court accepts my above recommendations, only plaintiffs' medical care claims and the denial of hygiene claim asserted in ¶ 48 of the Amended complaint will survive dismissal or summary judgment on the merits. With respect to those claims which are dismissed or for which summary judgment is granted, the conclusion that the claims fail on the merits makes it unnecessary to consider defendants' alternative argument that they are entitled to qualified immunity. See Taylor Acquisitions, L.L.C. v. City of Taylor, 313 Fed. Appx. 826, 838 n.10 (6th Cir. 2009). With respect to the claims which survive, defendants do not contest that the law was not clearly established; rather, they argue only that they are entitled to qualified immunity because the underlying claims are without merit. Because defendants assert that they are entitled to qualified immunity "only on the basis that plaintiff has failed to state federal constitutional claim" and "they do not allege that the rights alleged to have been violated were not clearly established[,] . . . the Court need not separately address defendants['] qualified immunity argument." [*90] Otrusina v. Crysler, No. 2:09-CV- 12828, 2010 U.S. Dist. LEXIS 96879, 2010 WL 3702647, at *9 (E.D. Mich. July 29, 2010) (Komives, M.J.), magistrate judge's report adopted, 2010 U.S. Dist. LEXIS 96878, 2010 WL 3702646 (E.D. Mich. Sept. 16, 2010) (Cohn, J.). 4. Injunctive Relief Finally, defendants argue that plaintiffs' claims for injunctive relief are moot because none of the remaining plaintiffs is still incarcerated in the St. Louis prisons. The Court should decline to dismiss plaintiffs' requests for injunctive relief at this time. It is well established that "[a] prisoner's transfer to a different correctional facility generally moots his request for injunctive relief against employees of the transferor facility." Thompson v. Carter, 284 F.3d 411, 415 (2d Cir. 2002); see also, Incumaa v. Ozmint, 507 F.3d 281, 286-87 (4th Cir. 2007) (citing cases from Second, Third, and Eighth Circuits); Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996). Nevertheless, plaintiffs' Amended Complaint raises class allegations, and the Court has yet to consider whether a class action is appropriate in this case now that plaintiffs are represented by counsel. Should the Court ultimately determine that a class action including current residents of the prisons is [*91] appropriate, plaintiffs' request for injunctive relief will not be moot. If no class is certified, plaintiffs' request for injunctive relief can be dismissed as moot at that time. E. Conclusion In view of the foregoing, the Court should: (1)grant defendants' motion to dismiss the unrepresented plaintiffs (docket #226); (2) grant in part and deny in part defendants' motion for partial judgment on the pleadings (docket #230); and (3) grant in part and deny in part defendants' motion for partial summary judgment (docket #231). Specifically, the Court should: (1) dismiss for failure to prosecute the claims of plaintiffs Rouse, Fritts, Pellin, Gates, George, Ashley, McMurray, and DeForest pursuant to Rule 41(b); (2) dismiss plaintiffs' claims alleging denial of bathroom use (Claim I(A)(3), ¶¶ 32-33), disease outbreaks (Claim I(A)(4), ¶¶ 34-39), exposure in medline (Claim I(A)(5), ¶ 40), cold cubicles (¶ 41 of Claim I(B)(1)), denial of access to courts (Claim II, ¶¶ 59-66), and removal of property (Claim III, ¶¶ 67-73); (3) deny defendants' motion for judgment on the pleadings with respect to plaintiffs' claims alleging denial of medical care (Claim I(A)(1), ¶¶ 27-29), denial of hygiene (Claim [*92] I(B)(3), ¶¶ 48-49), and contaminated drinking water (Claim I(B)(4), ¶¶ Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6964 Page 48 of 77 Page 29 of 30 Rouse v. Caruso Christopher Bradley Clare 50-52); (4) grant defendants' motion for summary judgment with respect to plaintiffs' claims alleging dangerous noise levels (Claim I(A)(2), ¶¶ 30-31), poor ventilation (¶¶ 42-44 of Claim I(B)(1)), crammed living space and overcrowding (Claims I(B)(2) and I(C)(2), ¶¶ 45-47, 56), denial of hygiene by failure to replace lost or stolen hygiene products (¶ 49 of Claim I(B)(3)), contaminated drinking water (Claim I(B)(4), ¶¶ 50-52), and lack of fire suppression system (Claim I(C)(1), ¶¶ 53-55); and (5) deny defendants' motion for summary judgment with respect to plaintiffs' claim alleging denial of hygiene products by virtue of a prison policy forbidding indigent status to prisoners who have their work or schooling terminated (¶ 48 of (Claim I(B)(3)) and with respect to plaintiffs' claims for injunctive relief. If the Court accepts this recommendation, the claims remaining in the case will be plaintiffs' denial of medical care claims asserted in ¶¶ 27-29 of the Amended Complaint and the denial of hygiene claim asserted in ¶ 48. III. NOTICE TO PARTIES REGARDING OBJECTIONS: The parties to this action may object to and seek [*93] review of this Report and Recommendation, but are required to act within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); Howard v. Secretary of Health & Human Servs., 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Filing of objections which raise some issues but fail to raise others with specificity, will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Secretary of Health & Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge. Within ten (10) days of service of any objecting party's timely filed objections, the opposing party may file a response. The response shall be not more than five (5) pages in length unless by motion and order such page limit is extended by the Court. The response shall address specifically, and in the [*94] same order raised, each issue contained within the objections. Dated: 2/18/11 /s/ Paul J. Komives PAUL J. KOMIVES UNITED STATES MAGISTRATE JUDGE Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6965 Page 49 of 77 Page 30 of 30 Rouse v. Caruso Christopher Bradley Clare Table1 (Return to related document text) COU NT CLAIM SUBPART SUB-SUBPART AMEND. COMPL. (1) Denial of ¶¶ 27-29 Medical Care (2) Dangerous ¶¶ 30-31 Noise Levels (A) Cruel & (3) Denial of ¶¶ 32-33 Unusual Punishment Bathroom Use (4) Disease ¶¶ 34-39 Outbreaks (5) Medline ¶ 40 Prisoners Forced into Cold I Eighth Amendment (1) Cold Cubicles ¶¶ 41-44 Violations and Poor Ventilation (B) Inhumane (2) Crammed Living ¶¶ 45-47 Treatment Space (3) Denial of ¶¶ 48-49 Hygiene (4) Contaminated ¶¶ 50-52 Drinking Water (1) Lack of Fire ¶¶ 53-55 Suppression System (C) Unsafe Living (2) Overcrowding ¶¶ 56 Conditions (3) Access to ¶¶ 57-58 Prisoner's Personal Files First, Fifth, and (A) Inadequate Law Library Time ¶¶ 59-61 Fourteenth II Amendment Access (B) Limited Law Books ¶¶ 62-64 to Courts (C) Seizure of Property and ¶¶ 65-66 Violations *2*Legal Materials III 14th Amendment Removal of Property or Money ¶¶ 67-73 Due Process without a Hearing Violations Table1 (Return to related document text) End of Document Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6966 Page 50 of 77 Page 1 of 2 Thompson v. Sauk Vill. Christopher Bradley Clare No Shepard’s Signal™ As of: December 22, 2016 9:07 PM EST Thompson v. Sauk Vill. United States District Court for the Northern District of Illinois February 25, 2013, Decided; February 25, 2013, Filed 13 C 155 Reporter 2013 U.S. Dist. LEXIS 28085 * Thompson vs. Sauk Village Core Terms in forma pauperis, drinking water, contamination, alleges, fail to state a claim, notice requirements, filing fee, court fee, diagnosed, preempted, mandated, requires, notice Counsel: [*1] Victor Thompson, Plaintiff, Pro se, Chicago Heights, IL. Judges: Virginia M. Kendall. Opinion by: Virginia M. Kendall Opinion STATEMENT Plaintiff Victor Thompson moves to proceed in forma pauperis without the full prepayment of filing fees. Pursuant to 28 U.S.C. 1915, the Court may authorize Thompson to proceed in forma pauperis if he is unable to pay the mandated court fees. Thompson need not be penniless to proceed in forma pauperis under § 1915(a)(1). See Zaun v. Dobbin, 628 F.2d 990, 992 (7th Cir. 1980). Instead, he is eligible if payment of the filing fee will prevent him from providing for life's necessities. See id. According to his financial affidavit, Mr. Thompson is not currently employed. He does not own real estate or any additional items of personal property worth over $1,000, nor does he have more than $200 in cash or in a checking or savings account. Based on these facts, Thompson's financial affidavit sets forth his inability to pay the mandated court fees. The Court, however, must look beyond Thompson's financial status. Section 1915 requires the Court to review an action of a plaintiff who seeks to proceed in forma pauperis and dismiss the action if it is frivolous or malicious, if it fails to state [*2] a claim upon which relief may be granted, or if the plaintiff seeks damages from a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)(i)-(iii); see also Lindell v. McCallum, 352 F.3d 1107, 1109 (7th Cir. 2003). When evaluating whether a plaintiff has stated a claim in the context of an application for leave to proceed in forma pauperis, the Court applies the same standard as that for a motion to dismiss under Rule 12(b)(6). See Zimmerman v. Tribble, 226 F.3d 568, 571 (7th Cir. 2000). In this case, Thompson alleges that he was a resident of Sauk Village, Illinois between 2004 and 2008. During that time, he and his family "suffered continuous stomach viruses, accompanied by constant diarrhea, head aces [sic], sore throats, and unexplainable rashes." He alleges that his wife was diagnosed with a chronic disease and his brother was diagnosed with cancer. These ailments were caused by contamination in Sauk Village's public Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6967 Page 51 of 77 Page 2 of 2 Thompson v. Sauk Vill. Christopher Bradley Clare drinking water that the Village was aware of but failed to remedy. He also alleges that his dog died as a result of drinking the contaminated water. As an initial matter, the Court notes that Thompson cannot bring claims on behalf of his wife or brother. [*3] See Warth v. Seldin, 422 U.S. 490, 499, 95 S. Ct. 2197, 45 L. Ed. 2d 343(1975) ("A federal court's jurisdiction therefore can be invoked only when the plaintiff himself suffered some threatened or actual injury resulting from the putatively illegal action...") (internal citations and quotations omitted); see also Mainstreet Org. of Realtors v. Calumet City, 505 F. 3d 742, 746 (7th Cir. 2007) (holding that plaintiffs' lawsuit was barred by the principle that "one cannot sue in federal court to enforce someone else's legal rights."). More importantly, Thompson brought his claim pursuant to 42 U.S.C. § 1983, which is preempted in this area by the Safe Drinking Water Act, 42 U.S.C. §§ 300f et seq. See, e.g., Mattoon v. City of Pittsfield, 980 F.2d 1 (1st Cir. 1992); Missey v. City of Staunton, No. 8 C 3212, 2008 WL 4911877, 2008 WL 4911877, at 2 (C.D. Ill. Nov. 13, 2008) (a Section 1983 claim premised on the contamination of public drinking water is preempted by the SDWA). However, since Thompson is a pro se litigant, he is entitled to leeway in interpreting his pleading. See Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972). As such, the Court is less concerned with whether Thompson has cited to the correct statute than in determining whether [*4] relief can be granted on the facts that he has presented. See Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir. 1992). Here, the facts alleged in Mr. Thompson's complaint still fail to state a claim under another federal statute. While the SDWA allows for private citizen suits, it requires that any plaintiff must first provide notice to Environmental Protection Agency, the violator and to the state in which the violation occurred. See 42 U.S.C. § 300j-8. In this case, Thompson has failed to allege that such notice was provided. Other potentially applicable environmental statutes also contain similar notice requirements. See, e.g., Comprehensive Environmental Response, Reclamation and Recovery Act of 1980, 42 U.S.C. § 9659(d); Resource Conservation and Recovery Act, 42 U.S.C. § 6972(b)(1). A federal district court may not entertain an action that fails to comply with these notice requirements. See Hallstrom v. Tillamook County, 493 U.S. 20, 110 S. Ct. 304, 107 L. Ed. 2d 237 (1989). Although Thompson may have Illinois state law claims, this Court may not exercise pendent jurisdiction over those unless there is a basis for federal jurisdiction. See United Mine Workers v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966). The [*5] Court sees no basis for federal question jurisdiction at this point. Accordingly, Thompson's motion is denied and his complaint is dismissed without prejudice. End of Document Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6968 Page 52 of 77 Page 1 of 5 Trans Rail Am., Inc. v. Hubbard Twp. Christopher Bradley Clare Positive As of: December 22, 2016 9:04 PM EST Trans Rail Am., Inc. v. Hubbard Twp. United States Court of Appeals for the Sixth Circuit May 8, 2012, Filed File Name: 12a0479n.06 No. 10-3236 Reporter 478 Fed. Appx. 986 *; 2012 U.S. App. LEXIS 9360 **; 2012 FED App. 0479N (6th Cir.); 2012 WL 1592755 TRANS RAIL AMERICA, INC.; SIENNA PLACE, INC., Plaintiffs-Appellants, v. HUBBARD TOWNSHIP; HUBBARD TOWNSHIP BOARD OF TRUSTEES; FREDERICK HANLEY; JONATHAN DOWELL; JOSEPH GLEYDURA; HUBBARD TOWNSHIP PLANNING AND ZONING COMMISSION; JOHN PIETON; SUSAN SICILIANO; HUBBARD TOWNSHIP BOARD OF ZONING APPEALS; JEFFREY ROWLANDS; DENNIE PARSONS; HEATHER O'HARA; MARIA CAPEZZUTO; BENJAMIN M. HAYEK, M.D.; TRUMBULL COUNTY PLANNING COMMISSION; MARC E. DANN; SUSAN WATKINS; MEGAN CARR; BENNETT AND WILLIAMS, ENVIRONMENTAL CONSULTANTS, INC.; CAPRI S. CAFARO, Defendants-Appellees, and TIM RYAN, U.S. Congressman for Ohio's 17th District, United States House of Representatives, Defendant. Notice: NOT RECOMMENDED FOR FULL- TEXT PUBLICATION. SIXTH CIRCUIT RULE 28 LIMITS CITATION TO SPECIFIC SITUATIONS. PLEASE SEE RULE 28 BEFORE CITING IN A PROCEEDING IN A COURT IN THE SIXTH CIRCUIT. IF CITED, A COPY MUST BE SERVED ON OTHER PARTIES AND THE COURT. THIS NOTICE IS TO BE PROMINENTLY DISPLAYED IF THIS DECISION IS REPRODUCED. Subsequent History: Sanctions allowed by, Costs and fees proceeding at Trans Rail Am., Inc. v. Hubbard Twp., 2012 U.S. Dist. LEXIS 139113 (N.D. Ohio, Sept. 27, 2012) Prior History: [**1] ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO. Trans Rail Am., Inc. v. Hubbard Twp., 2010 U.S. Dist. LEXIS 2682 (N.D. Ohio, Jan. 13, 2010) Core Terms allegations, district court, civil conspiracy Case Summary Procedural Posture Plaintiff corporations filed a complaint alleging one claim of a 42 U.S.C.S. § 1983 civil conspiracy against defendants, various local governmental agencies, state legislators, and public officials. The claim arose out of an application for a landfill operating license and a request for a zoning variance. The U.S. District Court for the Northern District of Ohio dismissed the complaint under Fed. R. Civ. P. 12(b)(6). The corporations appealed. Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6969 Page 53 of 77 Page 2 of 5 Trans Rail Am., Inc. v. Hubbard Twp. Christopher Bradley Clare Overview The corporations argued that they stated a claim for civil conspiracy with allegations of some specificity that were plausible. The court found that the complaint failed to plead facts showing the existence of a single plan. Conclusory allegations of a conspiracy were insufficient. The complaint also did not tie any factual allegations to the alleged constitutional violations and it did not identify how defendants' actions resulted in the deprivation of constitutional rights. Therefore, the district court was correct to dismiss the corporations' claim. Outcome The judgment of the district court was affirmed. LexisNexis® Headnotes Civil Procedure > ... > Defenses, Demurrers & Objections > Motions to Dismiss > Failure to State Claim Civil Procedure > Appeals > Standards of Review > De Novo Review HN1 On appeal, an appellate court reviews de novo a dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6). Civil Procedure > ... > Defenses, Demurrers & Objections > Motions to Dismiss > Failure to State Claim HN2 To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A court must review the complaint in the light most favorable to plaintiffs, accept their factual allegations as true, and determine whether the plaintiffs undoubtedly can prove no set of facts in support of their claims that would entitle them to relief. Legal conclusions or unwarranted factual inferences need not be accepted as true. Civil Rights Law > Protection of Rights > Conspiracy Against Rights > Elements Torts > ... > Concerted Action > Civil Conspiracy > Elements HN3 A civil conspiracy under 42 U.S.C.S. § 1983 is an agreement between two or more persons to injure another by unlawful action. It is well-settled that conspiracy claims must be pled with some degree of specificity and that vague and conclusory allegations unsupported by material facts will not be sufficient to state such a claim under § 1983. To prevail on a civil conspiracy claim, a plaintiff must show that (1) a single plan existed, (2) the defendants shared in the general conspiratorial objective to deprive the plaintiff of his constitutional or federal statutory rights, and (3) an overt act was committed in furtherance of the conspiracy that caused injury to the plaintiff. Civil Rights Law > Protection of Rights > Conspiracy Against Rights > Elements Torts > ... > Concerted Action > Civil Conspiracy > Elements HN4 Conclusory allegations of a conspiracy are insufficient. Civil Rights Law > Protection of Rights > Conspiracy Against Rights > Elements Civil Rights Law > ... > Section 1983 Actions > Elements > General Overview HN5 To state a claim under 42 U.S.C.S. § 1983, a plaintiff must allege that (1) a right secured by the Constitution or a federal statute has been violated, and (2) the violation was committed by a person acting under color of state law. Furthermore, to establish a conspiracy under a § 1983 claim, a plaintiff must first demonstrate a constitutional deprivation. Civil Procedure > ... > Pleadings > Complaints > Requirem ents for Complaint HN6 Legal conclusions need not be accepted as true, and a complaint must set forth some factual basis for the claims asserted. Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6970 Page 54 of 77 Page 3 of 5 Trans Rail Am., Inc. v. Hubbard Twp. Christopher Bradley Clare Counsel: For TRANS RAIL AMERICA, INC., An Ohio Corporation, SIENNA PLACE, INC., An Ohio Corporation, Plaintiff - Appellants: Michael A. Partlow, Morganstern, MacAdams & DeVito, Cleveland, OH. For HUBBARD TOWNSHIP, HUBBARD TOWNSHIP BOARD OF TRUSTEES, FREDERICK HANLEY, Hubbard Township Board of Trustees, JONATHAN DOWELL, Former Hubbard Township Board of Trustees, JOSEPH GLEYDURA, Hubbard Township Board of Trustees, HUBBARD TOWNSHIP PLANNING AND ZONING COMMISSION, JOHN PIETON, Hubbard Township Planning and Zoning Commission, SUSAN SICILIANO, Hubbard Township Planning and Zoning Commission, HUBBARD TOWNSHIP BOARD OF ZONING APPEALS, JEFFREY ROWLANDS, Hubbard Township Board of Zoning Appeals, DENNIE PARSONS, Hubbard Township Board of Zoning Appeals, HEATHER O'HARA, Hubbard Township Board of Zoning Appeals, MARIA CAPEZZUTO, Hubbard Township Board of Zoning Appeals, BENJAMIN M. HAYEK, MD, Former Hubbard Township Board of Zoning Appeals, Defendant - Appellees: James F. Mathews, Baker, Dublikar, Beck, Wiley & Griffin, N. Canton, OH. For TRUMBULL COUNTY PLANNING COMMISSION, Defendant - Appellee: John T. McLandrich, Frank H. Scialdone [**2] , Mazanec, Raskin & Ryder, Cleveland, OH. For MARC E. DANN, Former Attorney General of Ohio and Former Member Ohio State Senate, CAPRI S. CAFARO, Defendant - Appellees: Pearl M. Chin, Assistant Attorney General, Office of the Ohio Attorney General, Columbus, OH. For SUSAN WATKINS, Ohio Environmental Protection Agency, MEGAN CARR, Ohio Environmental Protection Agency, Defendant - Appellees: Dale T. Vitale, Office of the Ohio Attorney General, Columbus, OH. For BENNETT AND WILLIAMS, Environmental Consultants, Inc., Defendant - Appellee: Christy Allison Prince, Kegler, Brown, Hill & Ritter, Columbus, OH. Judges: Before: McKEAGUE and WHITE, Circuit Judges; BARRETT, District Judge. * Opinion [*987] PER CURIAM. Plaintiffs-Appellants, Trans Rail America, Inc. and Sienna Place, Inc., appeal the district court's dismissal of their Amended Complaint, which alleges one claim of a 42 U.S.C. § 1983 civil conspiracy against multiple defendants. Because the district court did not err in ruling that the Amended Complaint fails to state a claim upon which relief can be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure, [**3] we AFFIRM. BACKGROUND On November 26, 2008, Plaintiffs-Appellants, Trans Rail America, Inc. and Sienna Place, Inc., (collectively "Trans Rail") filed a Complaint against twenty-five Defendants that included various local governmental agencies, state legislators, and public officials. Trans Rail sought over $16 million in compensatory damages and $51 million in punitive damages for an alleged 42 U.S.C. § 1983 civil conspiracy that included violations of the First, Fourth, Fifth, and Fourteenth Amendments and Article I, Section 10 of the Constitution of the United States. (R. 1, Complaint, at ¶¶ 41-43.) Trans Rail's claim arose out of an application for a landfill operating license and a request for a zoning variance. (Appellees Cafaro & Dann Br. 3.) The claim alleges that Defendants conspired together and pursued policies specifically designed to hamper Trans Rail's ability to operate their businesses. (R. 47 at ¶ 27.) On February 23, 2009, the district court conducted a case-management conference during which it * The Honorable Michael R. Barrett, United States District Judge for the Southern District of Ohio, sitting by designation. Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6971 Page 55 of 77 Page 4 of 5 Trans Rail Am., Inc. v. Hubbard Twp. Christopher Bradley Clare expressed concern about the vague nature of Trans Rail's Complaint. In an Order issued the next day, the district court labeled Trans Rail's pleading a "shotgun complaint" and [**4] ordered the Plaintiffs to amend. (R. 46, Order, at 1.) Plaintiffs filed their Amended Complaint shortly thereafter. (R. 47, Amended Complaint.) Several Defendants responded with motions to dismiss, which the district court granted. (R. 70, Order & Decision.) The district court held, "there are no factual allegations that would support the conclusory statements that each of the defendants conspired with one another," and, "[t]he manner in which the complaint was [*988] pled leaves each defendant and the Court guessing regarding the underlying federal law violation." (R. 70, Order & Decision, at 6, 7.) Appellants maintain that this ruling was in error. ANALYSIS HN1 "On appeal, we review de novo a dismissal for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure." Severe Records, LLC v. Rich, 658 F.3d 571, 578 (6th Cir. 2011). HN2 To survive a motion to dismiss, the complaint must "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). "We must review the complaint in the light most favorable to Plaintiffs, [**5] accept their factual allegations as true, and determine whether Plaintiffs undoubtedly can prove no set of facts in support of their claims that would entitle them to relief." Severe Records, 658 F.3d at 578 (internal quotations and alterations omitted). Legal conclusions or unwarranted factual inferences need not be accepted as true. Id. HN3 "A civil conspiracy under § 1983 is 'an agreement between two or more persons to injure another by unlawful action.'" Bazzi v. City of Dearborn, 658 F.3d 598, 602 (6th Cir. 2011) (quoting Revis v. Meldrum, 489 F.3d 273, 290 (6th Cir. 2007)). "It is well-settled that conspiracy claims must be pled with some degree of specificity and that vague and conclusory allegations unsupported by material facts will not be sufficient to state such a claim under § 1983." Spadafore v. Gardner, 330 F.3d 849, 854 (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir. 1987)). To prevail on a civil conspiracy claim, a plaintiff must show that (1) a "single plan existed," (2) the defendants "shared in the general conspiratorial objective" to deprive plaintiff of his constitutional or federal statutory rights, and (3) "an overt act was committed in furtherance of the [**6] conspiracy that caused injury" to the plaintiff. Hooks v. Hooks, 771 F.2d 935, 944 (6th Cir. 1985); Bazzi, 658 F.3d at 602. Appellants argue that they have stated a claim for civil conspiracy with allegations of "some specificity" that are "plausible." (Appellants' Br. 12, 24, 27, 30.) Based on a review of the Amended Complaint, we disagree. The Amended Complaint's first insurmountable flaw is that it fails to plead facts showing the existence of "a single plan." See Hooks, 771 F.2d at 944. This goes to the district court's conclusion that "there are no factual allegations that would support the conclusory statements that each of the defendants conspired with one another." (R. 70 at 6.) Because HN4 conclusory allegations of a conspiracy are insufficient, Twombly, 550 U.S. at 555, the district court was correct to dismiss Trans Rail's claim on this basis. The Amended Complaint's second fatal flaw is that it does not tie any factual allegations to the alleged constitutional violations and it does not identify how Defendants' actions resulted in the deprivation of constitutional rights. HN5 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that (1) a right secured by the Constitution [**7] or a federal statute has been violated, and (2) the violation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988); Flanory v. Bonn, Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6972 Page 56 of 77 Page 5 of 5 Trans Rail Am., Inc. v. Hubbard Twp. Christopher Bradley Clare 604 F.3d 249, 253 (6th Cir. 2010). Furthermore, "[t]o establish a 'conspiracy' under a Section 1983 claim, a plaintiff must first demonstrate a constitutional deprivation." Bauss v. Plymouth Twp., 233 F. App'x 490, 496 (6th Cir. [*989] 2007) (citing Hooks, 771 F.2d at 943-44). Trans Rail's Amended Complaint presents nothing more than legal conclusions in this respect, but HN6 "legal conclusions need not be accepted as true," and, "the complaint must set forth 'some factual basis' for the claims asserted." Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d 673, 684 (6th Cir. 2011); see also Twombly, 550 U.S. at 555. Trans Rail fails on both these points. Accordingly, the district court was correct to dismiss Trans Rail's claim on this basis. CONCLUSION The judgment of the district court is AFFIRMED. End of Document Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6973 Page 57 of 77 Page 1 of 7 Ungaretti & Harris, LLP v. ServiceMaster Co. Christopher Bradley Clare Cited As of: December 22, 2016 9:07 PM EST Ungaretti & Harris, LLP v. ServiceMaster Co. United States District Court for the Northern District of Illinois, Eastern Division May 27, 2010, Decided; May 27, 2010, Filed No. 09 C 4994 Reporter 2010 U.S. Dist. LEXIS 53322 *; 2010 WL 2167532 UNGARETTI & HARRIS, LLP, Plaintiff, v. THE SERVICEMASTER COMPANY, Defendant. Core Terms rebate, alleges, motion to dismiss, satisfaction, bills, legal fees, counterclaim, outstanding, misrepresentation, promises, matters, parties, absolute privilege, scheme to defraud, express contract, promissory fraud, services Counsel: [*1] For Ungaretti & Harris, LLP, Plaintiff: Kamau A Coar, Michael James Philippi, Ungaretti & Harris LLP, Chicago, IL. For The ServiceMaster Company, Defendant, Counter Claimant: David A. Rammelt, LEAD ATTORNEY, Dawn Michele Beery, K&L Gates LLP, Chicago, IL; Beata Guzik, Bell, Boyd & Lloyd, PLLC, Washington, DC. Judges: John F. Grady, United States District Judge. Opinion by: John F. Grady Opinion MEMORANDUM OPINION Before the court are two motions: (1) defendant's motion to dismiss Counts II, III, and IV of the complaint; and (2) plaintiff's motion to dismiss defendant's counterclaim. For the following reasons, defendant's motion is granted, and plaintiff's motion is granted in part and denied in part. BACKGROUND Ungaretti & Harris, LLP ("Ungaretti"), a law firm, brings this action for outstanding legal fees and "fraudulently obtained rebated legal fees" against a former client, The ServiceMaster Company ("Servicemaster"). From 2005 to 2009, Ungaretti represented Servicemaster and its related companies in more than one hundred lawsuits that primarily involved employment-law issues. According to Ungaretti, "not a single" case it handled "resulted in a verdict adverse to Servicemaster or its subsidiaries and virtually every [*2] case was resolved on terms favorable to Servicemaster." (Compl. P 2.) The parties had a good business relationship for about a year and a half. In the fall of 2007, however, Servicemaster experienced a management change and budget-cutting directives, and its payments to Ungaretti "began to falter." (Id. PP 16- 17.) Servicemaster stopped paying Ungaretti's bills in full and began to negotiate reduced bills and credits, claiming that certain charges were excessive "without any review of the actual task or the complexities of the work." (Id. P 20.) Ungaretti alleges that it nonetheless continued to "faithfully and fully" provide legal services to Servicemaster. Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6974 Page 58 of 77 Page 2 of 7 Ungaretti & Harris, LLP v. ServiceMaster Co. Christopher Bradley Clare (Id. P 19.) In 2007 Servicemaster also instituted a "preferred counsel" program, also known as a "primary firm network," pursuant to which a limited number of law firms would be eligible to be engaged to provide legal services. Plaintiff explains that these programs "are used by many large companies like Servicemaster to be more efficient with outside counsel dollars by limiting the number of firms eligible for their work and demanding steep discounts or credits from those firms in consideration for being chosen to be in the network." [*3] (Id. P 3.) Servicemaster chose Ungaretti as one of its preferred law firms. In response to "explicit guarantees" from individuals in Servicemaster's legal department that Servicemaster would continue to refer legal matters to Ungaretti (which Ungaretti alleges were false promises) and in response to Servicemaster's repeated requests for rebates, Ungaretti provided rebates and credits to Servicemaster totaling $ 128,015.38. (Id. P 4.) Despite its acceptance of the rebates, Servicemaster thereafter terminated its relationship with Ungaretti and failed to engage Ungaretti in any additional matters. Servicemaster also refused to pay $ 284,259.47 in outstanding legal fees that were incurred, for the most part, in the defense of two matters described in the complaint. Ungaretti has filed a four-count complaint for breach of contract and of the covenant of good faith and fair dealing (Count I); quantum meruit (Count II); common-law fraud (Count III); and unjust enrichment (Count IV). It seeks to recover $ 284,259.47 in outstanding fees and $ 128,015.38 in rebates that were allegedly fraudulently obtained, plus interest, punitive damages, costs, and reasonable attorney's fees. Servicemaster has [*4] filed a two-count counterclaim. In Count I, Servicemaster alleges that Ungaretti breached its contract with Servicemaster, specifically Ungaretti's guarantee of client satisfaction, by refusing to reduce its bills. Count II is a claim that Ungaretti breached its fiduciary duty to Servicemaster by disclosing, in the complaint in this lawsuit, confidential information relating to its representation of Servicemaster that is not necessary to recovering its fees. Servicemaster moves to dismiss Counts II, III, and IV of the complaint. Ungaretti moves to dismiss the counterclaim. DISCUSSION The purpose of a 12(b)(6) motion to dismiss is to test the sufficiency of the complaint, not to resolve the case on the merits. 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1356, at 354 (3d ed. 2004). Under federal notice- pleading standards, a complaint need not contain "detailed factual allegations," but it must have more than mere "labels and conclusions." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). A plaintiff is obligated to provide the factual grounds of his entitlement to relief, and a "formulaic recitation" of the elements of a claim will not do. Id. The complaint [*5] must contain sufficient facts to raise a plaintiff's right to relief above a "speculative" level, id. at 555, and the claim must be "plausible on its face," id. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, U.S. , , 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). When evaluating a motion to dismiss a complaint, we must accept as true all factual allegations in the complaint, but not its legal conclusions. Id. at 1949-50. A. Servicemaster's Motion to Dismiss Counts II, III, and IV 1. Quantum Meruit and Unjust Enrichment (Counts II and IV) Servicemaster contends that Ungaretti's quasi- contractual claims should be dismissed because the relationship between the parties was governed by Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6975 Page 59 of 77 Page 3 of 7 Ungaretti & Harris, LLP v. ServiceMaster Co. Christopher Bradley Clare an express contract, citing, inter alia, our opinion in Song v. PIL, L.L.C., 640 F. Supp. 2d 1011 (N.D. Ill. 2009). Ungaretti responds that the claims are proper alternative theories of recovery. "An express contract is a contract in which the terms of the contract or agreement are openly and fully uttered and avowed at the time of [*6] the making." Impo Glazetile, Inc. v. Florida Tile Indus., Inc., No. 92 C 6930, 1994 U.S. Dist. LEXIS 15975, 1994 WL 630550, at *4 (N.D. Ill. Nov. 8, 1994) (internal quotation marks omitted). Our decision in Song was based on the principle that a plaintiff may not bring quasi-contract claims where there is an express contract governing the parties' relationship. Song had alleged, and the defendants did not dispute, the existence of an express contract. The instant case is distinguishable from Song because Ungaretti has not alleged that the agreement between the parties was an express contract, and indeed, it appears that the parties do not agree on the terms of their agreement. Therefore, plaintiff will be permitted to proceed on its quasi-contractual claims. However, it has not properly alleged those claims in the alternative because Counts II and IV incorporate by reference its contradictory prior allegation of an agreement between the parties. Therefore, Counts II and IV will be dismissed without prejudice, and Ungaretti will be given leave to file an amended complaint that does not incorporate the contradictory allegation in those claims. 2. Common-Law Fraud (Count III) In Count III, Ungaretti alleges that Servicemaster [*7] "made several misleading material omissions and/or false statements of material fact regarding the $ 100,000 Rebate given by [Ungaretti] on its outstanding bills for legal fees." (Compl. P 76.) It is further alleged: 77. For months in late 2007 and early 2008, Servicemaster requested a rebate in the amount of $ 100,000 for amounts owed to [Ungaretti] for legal services previously performed. 78. On multiple occasions, [Ungaretti] expressly conditioned any rebate . . . . on Servicemaster sending future legal work to [Ungaretti]. 79. On several occasions in late 2007 and early 2008, Servicemaster acknowledged its understanding and acceptance of [Ungaretti's] condition for giving the Rebate, including but not limited to an in-person meeting in Syracuse, New York with representatives of [Ungaretti] in April 2008. 80. At the time that Servicemaster made these statements that it would send future legal work to [Ungaretti], it knew or should have known that the statements were false. 81. At the time that Servicemaster made these statements, its intent was to induce [Ungaretti] to rebate its outstanding bills by $ 100,000. 82. [Ungaretti] relied upon the purported truth of Servicemaster's statements [*8] regarding the Rebate and, as a result of this reliance, reduced the amount of its outstanding bills owed by Servicemaster by $ 100,000. 83. [Ungaretti] relied upon the purported truth of Servicemaster's statements regarding the Rebate and, as a result of this reliance, reduced the amount of another outstanding bill owed by Servicemaster by $ 28,015.38 . . . . 84. As a result of [its] reliance upon Servicemaster's false statements of material fact regarding the Rebate, [Ungaretti] has suffered damages in excess of $ 128,015.38. (Id. PP 77-84.) Servicemaster seeks dismissal of Count III on three grounds. The first is that the claim is not pled with sufficient particularity. Because plaintiff alleges fraud, the heightened pleading requirements of Federal Rule of Civil Procedure 9(b) apply. Rule 9(b) requires a plaintiff to plead with particularity the factual bases for averments of fraud, including Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6976 Page 60 of 77 Page 4 of 7 Ungaretti & Harris, LLP v. ServiceMaster Co. Christopher Bradley Clare "the identity of the person making the misrepresentation, the time, place, and content of the misrepresentation, and the method by which the misrepresentation was communicated to the plaintiff." Hefferman v. Bass, 467 F.3d 596, 601 (7th Cir. 2006); see also DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir. 1990) [*9] (stating that the plaintiff must plead the who, what, when, where, and how of the alleged fraud). Servicemaster's second argument for dismissal of the fraud claim is that Ungaretti's claim amounts to promissory fraud, which is not actionable unless the alleged misrepresentations were part of a scheme to defraud, and a scheme is not alleged. Ungaretti responds that it has adequately alleged such a scheme in that the "primary firm network was the scheme" and the "false promises of future work were the scheme" by which it was defrauded by Servicemaster. (Pl.'s Opp'n at 9.) Defendant correctly states that promissory fraud, which involves false statements of intent regarding future conduct, is not actionable under Illinois law unless the plaintiff alleges that the statements were part of a scheme to defraud. Association Benefit Servs., Inc. v. Caremark Rx, Inc., 493 F.3d 841, 853 (7th Cir. 2007). "The scheme exception applies where a party makes a promise of performance, not intending to keep the promise but intending for another party to rely on it, and where the other party relies on it to his detriment." Bower v. Jones, 978 F.2d 1004, 1011 (7th Cir. 1992) (internal quotation marks omitted). [*10] On the distinction between a mere promissory fraud and a scheme of promissory fraud, the Seventh Circuit has observed: The distinction certainly is unsatisfactory, but it reflects an understandable ambivalence, albeit one shared by few other states, about allowing suits to be based on nothing more than an allegation of a fraudulent promise. There is a risk of turning every breach of contract suit into a fraud suit, of circumventing the limitation that the doctrine of consideration is supposed however ineptly to place on making all promises legally enforceable, and of thwarting the rule that denies the award of punitive damages for breach of contract. A great many promises belong to the realm of puffery, bragging, "mere words," and casual bonhomie, rather than to that of serious commitment. They are not intended to and ordinarily do not induce reliance; a healthy skepticism is a better protection against being fooled by them than the costly remedies of the law. In any event it is not our proper role as a federal court in a diversity suit to read "scheme" out of Illinois law; we must give it some meaning. Our best interpretation is that promissory fraud is actionable only if it either [*11] is particularly egregious or, what may amount to the same thing, it is embedded in a larger pattern of deceptions or enticements that reasonably induces reliance and against which the law ought to provide a remedy. Desnick v. American Broad. Cos., 44 F.3d 1345, 1354 (7th Cir. 1995). Although Count III alleges that Servicemaster made "several misleading material omissions and/or false statements of material fact," P 76, none are alleged with sufficient particularity. The closest plaintiff comes is paragraph 51, which states: "During an in- person conversation in Syracuse, New York in April 2008, [Timothy] Harrison 1 confirmed his understanding on behalf of Servicemaster that it would send future legal work assignments to [Ungaretti] in return for the $ 100,000 rebate Servicemaster requested." We do not agree with Servicemaster's contention that plaintiff must specify "the type of work at issue" or when the work would be assigned; the content of the alleged promise is adequately presented. But we do agree that plaintiff must specify the identity of the person to whom the misrepresentation was communicated. See, e.g., Sears v. Likens, 912 F.2d 889, 893 (7th Cir. 1990). Clearly, this information [*12] is available to the plaintiff. 1 According to paragraph 46 of the complaint, Harrison is "Senior Counsel" for Servicemaster. Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6977 Page 61 of 77 Page 5 of 7 Ungaretti & Harris, LLP v. ServiceMaster Co. Christopher Bradley Clare Plaintiff argues that with regard to the $ 28,015.38 rebate, it has sufficiently alleged fraud with particularity by virtue of the allegation that Harrison "threatened to remove" Ungaretti from a particular matter unless Ungaretti "consented to the requested rebate." (Pl.'s Opp'n at 9-10 (citing Compl. P 59).) But plaintiff fails to explain how this threat constituted any sort of misrepresentation. Moreover, Ungaretti has not alleged that Servicemaster engaged in a scheme to defraud. To satisfy the "scheme" requirement, plaintiff must plead a pattern of deceptions. Desnick, 44 F.3d at 1354. Ungaretti has failed to plead even one fraudulent act with specificity, much less a larger pattern of deceptions. Contrary to the argument in its brief, Ungaretti does not allege in the complaint that Servicemaster's "preferred counsel" program was a scheme to defraud (or explain how the program constituted a pattern of deceptions), nor is a pattern of false promises of future work alleged. Servicemaster's third argument for dismissing Count III is that any reliance by Ungaretti [*13] on a letter of January 24, 2008 from Servicemaster, quoted in part in paragraph 49 of the complaint, was unreasonable. Paragraph 49 states: Harrison made affirmative representations that he and Servicemaster understood and accepted [Ungaretti's condition that Servicemaster agree that Ungaretti would receive future work assignments] in return for the rebate Servicemaster was seeking. In a letter sent on January 24, 2008, representatives from Servicemaster wrote: The Servicemaster legal department is also in the process of implementing a Preferred Counsel Program. Some of the selection criteria for the Preferred Counsel Program include agreeing to abide by the Guidelines and offering Servicemaster a reasonable discount on your base billing rates. . . . If you are interested in participating in the program, please respond by February 6, 2008 . . . with the type[] of matters that you would propose handling for Servicemaster, your current billing rates, any existing discount you[] provide us, whether any further discount will be available to us (including based on any volume threshold), the name of any e-billing vendors you currently use, and any other information you want to submit for consideration. (Compl. [*14] P 49.) A copy of the letter is attached as Exhibit 2 to the complaint. Ungaretti asserts that the letter is "evidence of Servicemaster's scheme to defraud" it. (Pl.'s Opp'n at 12.) We disagree. The letter cannot reasonably be construed to be any sort of representation that Ungaretti would receive future work from Servicemaster, or even a representation that Ungaretti would be chosen to participate in the preferred counsel program. The letter is simply an invitation to submit an application, so to speak, for Servicemaster's consideration. Because plaintiff has failed to adequately plead its fraud claim, Count III will be dismissed. Conceivably, plaintiff will be able to state a fraud claim, so the dismissal will be without prejudice. B. Ungaretti's Motion to Dismiss the Counterclaim 1. Breach of Contract (Count I) In Count I of its counterclaim, Servicemaster alleges that Ungaretti breached the "written guarantee of client satisfaction" that appears on Ungaretti's web site. The guarantee states: WE GUARANTEE THAT AS A CLIENT OF UNGARETTI & HARRIS YOU WILL RECEIVE COST-EFFECTIVE LEGAL SERVICES DELIVERED IN A TIMELY MANNER. WE PROMISE TO INVOLVE YOU IN STRATEGIC DECISIONS AND TO COMMUNICATE [*15] WITH YOU REGULARLY. WE CANNOT GUARANTEE OUTCOMES, BUT WE DO GUARANTEE YOUR SATISFACTION WITH OUR SERVICE. IF AT ANY TIME UNGARETTI Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6978 Page 62 of 77 Page 6 of 7 Ungaretti & Harris, LLP v. ServiceMaster Co. Christopher Bradley Clare & HARRIS DOES NOT PERFORM TO YOUR SATISFACTION, WE ASK THAT YOU INFORM US PROMPTLY. WE WILL THEN RESOLVE THE ISSUE TO YOUR SATISFACTION, EVEN IF IT MEANS REDUCING OUR LEGAL FEES. (Countercl., Ex. A.) Servicemaster alleges that it was not satisfied with Ungaretti's services in connection with the two matters discussed in Ungaretti's complaint, that it advised Ungaretti of its dissatisfaction in that the legal fees charged in connection with those matters were two to three times the budgeted amounts, and that Ungaretti refused to reduce its bills. (Countercl. PP 34-35.) According to Servicemaster, Ungaretti's refusal to reduce its legal bills in the amount requested by Servicemaster was a breach of Ungaretti's guarantee of client satisfaction and therefore a breach of contract. Ungaretti argues that Count I should be dismissed because the guarantee was a "marketing tool" and too vague to constitute an enforceable contract. We cannot accept Ungaretti's argument that the guarantee was a mere "marketing tool." It is true that there are many terms in the guarantee [*16] that are too vague to be enforceable, such "cost-effective," "timely," and "strategic decisions." But the guarantee clearly promises that if Ungaretti does not perform to a client's satisfaction, Ungaretti will resolve the issue to the client's satisfaction, even if it means reducing legal fees. This is an enforceable promise. Of course, the law would interpret this provision of the guarantee to contemplate reasonable and actual dissatisfaction; the law always implies reasonableness when interpreting contracts. With that limitation, we see nothing vague about the guarantee of satisfaction. Accordingly, Ungaretti's motion to dismiss Count I will be denied. 2. Breach of Fiduciary Duty (Count II) Servicemaster alleges in Count II that Ungaretti has an ongoing fiduciary duty to maintain the confidences of Servicemaster, its former client, and that Ungaretti breached this duty by disclosing, in the instant complaint, confidential information regarding Servicemaster's litigation policies and strategies. Ungaretti contends that Servicemaster fails to state a claim because it has not adequately alleged that it was harmed by the breach. The counterclaim states: "Servicemaster has been damaged [*17] by [Ungaretti's] breach of fiduciary duty. Among other things, Servicemaster believes that it has been prejudiced as a consequence of [Ungaretti's] disclosure of Servicemaster's litigation policies, strategies and internal communications." (Countercl. P 45.) Servicemaster responds that it need not allege more. Pursuant to Iqbal, Servicemaster must allege facts from which we can draw the reasonable inference that it was harmed. 129 S. Ct. at 1949 (stating that federal pleading standards demand "more than an unadorned, the-defendant-unlawfully-harmed-me accusation"). The vague allegation that Servicemaster "believes that it has been prejudiced" is insufficient, and there are no facts alleged from which we could infer that it suffered damage as a result of the alleged breach. There is another reason (not raised by Ungaretti) why Count II fails to state a claim: absolute privilege. The doctrine of absolute privilege provides complete immunity from civil liability for statements made in judicial proceedings, even if the statements are made with malice, because public policy favors the free flow of information in conjunction with those proceedings. Jurgensen v. Haslinger, 295 Ill. App. 3d 139, 692 N.E.2d 347, 349-50, 229 Ill. Dec. 574 (Ill. App. Ct. 1998). [*18] The privilege covers formal pleadings. Barakat v. Matz, 271 Ill. App. 3d 662, 648 N.E.2d 1033, 1039, 208 Ill. Dec. 111 (Ill. App. Ct. 1995). Usually the doctrine arises in the context of defamation actions, but it has broader application. See, e.g., Jurgensen, 692 N.E.2d at 349-50 (holding that absolute privilege applied to a claim for tortious interference with an expectancy under a will); McNall v. Frus, 336 Ill. App. 3d 904, 784 Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6979 Page 63 of 77 Page 7 of 7 Ungaretti & Harris, LLP v. ServiceMaster Co. Christopher Bradley Clare N.E.2d 238, 240, 271 Ill. Dec. 20 (Ill. App. Ct. 2002) (holding that absolute privilege applied to a negligence claim). Because Count II is based on the statements made by Ungaretti in its pleading, the doctrine of absolute privilege is applicable. CONCLUSION For the foregoing reasons, defendant's motion to dismiss Counts II, III, and IV of the complaint [17] is granted. Counts II, III, and IV of the complaint are dismissed without prejudice, and plaintiff is given leave to file an amended complaint by June 11, 2010. Plaintiff's motion to dismiss defendant's counterclaim [21] is granted as to Count II, which is dismissed with prejudice, and denied as to Count I. The stay of discovery currently in place is hereby lifted. Discovery is to proceed forthwith. DATE: May 27, 2010 ENTER: /s/ John F. Grady John F. Grady, United States District Judge End of Document Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6980 Page 64 of 77 Page 1 of 13 Zola H. v. Snyder Christopher Bradley Clare Neutral As of: December 22, 2016 9:04 PM EST Zola H. v. Snyder United States District Court for the Eastern District of Michigan, Southern Division September 3, 2013, Decided; September 3, 2013, Filed Case No. 12-14073 Reporter 2013 U.S. Dist. LEXIS 125199 *; 2013 WL 4718343 ZOLA H., et al., Plaintiffs, v. RICK SNYDER, et al., Defendants. Subsequent History: Motion granted by, Motion denied by Zola H. v. Snyder, 2013 U.S. Dist. LEXIS 159982 ( E.D. Mich., Nov. 8, 2013) Summary judgment denied by, Without prejudice, Motion denied by, Without prejudice Zola H. v. Snyder, 2014 U.S. Dist. LEXIS 93683 ( E.D. Mich., July 10, 2014) Dismissed without prejudice by, in part Zola H. v. Snyder, 2015 U.S. Dist. LEXIS 41747 ( E.D. Mich., Mar. 31, 2015) Core Terms benefits, sovereign immunity, allegations, qualified immunity, injunction, social worker, Defendants', absolute immunity, adoptive parent, invoking, applies, rights, injunctive relief, motion to dismiss, waived, signs Case Summary Overview HOLDINGS: [1]-In a 42 U.S.C.S. § 1983 action in which plaintiffs, adoptive parents, alleged that defendant social workers harassed and intimidated them during the adoption process, a social worker was entitled to qualified immunity because plaintiffs did not explain how any of their rights were violated when the social worker allegedly refused to answer questions about an adoption and relied on the authority of an adoption order; [2]- Plaintiffs' claims against defendant state officials for money and child-welfare payments were barred under the doctrine of sovereign immunity; [3]- Plaintiffs' claim for a non-monetary injunction was moot because such relief would not affect plaintiffs; [4]-Plaintiffs failed to state a § 1983 claim against defendant private agency because no material allegations suggested a conspiracy between the state and the private agency. Outcome The court granted defendants' motions to dismiss. LexisNexis® Headnotes Civil Procedure > ... > Defenses, Demurrers & Objections > Motions to Dismiss > Failure to State Claim Civil Procedure > ... > Pleadings > Complaints > Requirem ents for Complaint HN1 To survive a motion to dismiss, a complaint must contain sufficient factual matter to state a claim for relief that is plausible on its face. Constitutional Law > State Sovereign Immunity > General Overview Governments > State & Territorial Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6981 Page 65 of 77 Page 2 of 13 Zola H. v. Snyder Christopher Bradley Clare Governments > Claims By & Against Governments > State & Territorial Governments > Employees & Officials HN2 The doctrine of sovereign immunity-an implicit constitutional principle, partly confirmed by the Eleventh Amendment-bars a federal action against a state absent its consent. Sovereign immunity governs an action against a state official if the plaintiff in effect seeks relief from the state, such as money from the state treasury. Governments > State & Territorial Governments > Claims By & Against HN3 Ex Parte Young applies only if the relief sought against state officials is equitable and prospective. Governments > State & Territorial Governments > Claims By & Against HN4 Sovereign immunity bars a request for relief from a state that will lead inexorably to the payment of state funds. Civil Procedure > Remedies > Damages > Monetary Damages Civil Rights Law > ... > Protection of Disabled Persons > Americans With Disabilities Act > Remedies HN5 Under the anti-retaliation provision in 42 U.S.C.S. § 12203, money damages are unavailable. Governments > State & Territorial Governments > Claims By & Against HN6 A Michigan Department of Human Services county branch, as part of the State, is invested with sovereign immunity. Civil Procedure > Remedies > Injunctions > General Overview Governments > State & Territorial Governments > Claims By & Against HN7 A court may enter a prospective injunction that costs the state money if the monetary impact is ancillary, i.e., not the primary purpose of the suit. Civil Procedure > Parties > Real Party in Interest > Fictitious Names HN8 Fed. R. Civ. P. 10(a) requires a complaint to name each party. If there is a compelling need for secrecy-as when the plaintiff is a child, for example-a plaintiff may, with leave from the district court, proceed under a pseudonym. Civil Procedure > Parties > Real Party in Interest > General Overview HN9 Where a complaint names the wrong plaintiff, Fed. R. Civ. P. 17(a)(3) allows a reasonable time for the real party in interest to ratify, join, or be substituted into the action, after which the action proceeds as if it had been originally commenced by the real party in interest. Family Law > Child Custody > Jurisdiction > General Overview HN10 The domestic relations exception to federal jurisdiction applies only to an action in which the plaintiff sues in federal court for divorce, alimony, or child custody. There are no exceptions to the exception. A federal court is divested not of the power to decide a tort action connected to an adoption, but of the power literally to issue a child- custody decree. Civil Procedure > ... > Preclusion of Judgments > Full Faith & Credit > Rooker-Feldman Doctrine HN11 The Rooker-Feldman doctrine prohibits a party that loses an action in state court from seeking in federal court a rejection of the adverse state-court order or judgment. Rooker-Feldman neither bars federal jurisdiction simply because a matter was previously litigated in state court nor addresses potential conflicts between federal and state court orders. Civil Procedure > Preliminary Considerations > Federal & State Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6982 Page 66 of 77 Page 3 of 13 Zola H. v. Snyder Christopher Bradley Clare Interrelationships > Abstention HN12 Younger abstention is not jurisdictional. Civil Rights Law > Protection of Rights > Immunity From Liability > Defenses HN13 There is no standard charge, no trick of pleading, by which a plaintiff may curvet a claim of qualified immunity without an understandable legal analysis. Indefinite principle does not prevail; a plaintiff may not merely cite a general right and assert its violation. A successful deflection of qualified immunity cannot be founded on an unexplained quotation only vaguely on point, or a string of inference unaccompanied by authority. A plaintiff must establish beyond debate the existence, at the time the defendant acted, of a discrete right violated. Civil Rights Law > Protection of Rights > Immunity From Liability > Judicial & Quasi-Judicial Functions HN14 For a social worker, as for a prosecutor, the margin of absolute immunity runs not with title but with function, the pertinent function in both instances being work at law; petitioning a court, conducting an action, testifying under oath, and so forth. Absolute immunity protects a social worker as she acts as a legal advocate-that is it. Governments > Legislation > Statutory Remedies & Rights HN15 A plaintiff invoking a law must prove that Congress meant to let her use it in pursuit of a defined end. Civil Rights Law > ... > Elements > Color of State Law > General Overview HN16 Liability under 42 U.S.C.S. § 1983 typically arises only from the conduct of a state actor. A private party that conspires with the state to violate someone's rights can at once expose itself to § 1983 yet deprive itself of qualified immunity. Counsel: [*1] For Zola H., a minor, by her next friend, Ann L. McNitt, Lisa Anderson, a minor, other child of above listed plaintiff parents, by her next friend, Ann L. McNitt, Robert Jones, a minor, other child of above listed plaintiff parents, by his next friend, Ann L. McNitt, John Smith, a minor, other child of above listed plaintiff parents, by his next friend, Ann L. McNitt, Kimberly H., named adoptive parent of the children listed above, John H., named adoptive parent of the children listed above, Elisa G., named adoptive parent of the children listed above, Mario G., named adoptive parent of the children listed above, Tracy F., named adoptive parent of the children listed above, James F., named adoptive parent of the children listed above, Ann E., named adoptive parent of the children listed above, David E., named adoptive parent of the children listed above, Luann D., named adoptive parent of the children listed above, Greg D., named adoptive parent of the children listed above, Odette C., named adoptive parent of the children listed above, Fredrick C., named adoptive parent of the children listed above, Jean B., named adoptive parent of the children listed above, Mark B., named adoptive [*2] parent of the children listed above, Kathleen A., named adoptive parent of the children listed above, David A., named adoptive parent of the children listed above, Michael G., a minor, by his next friend, Ann L. McNitt, Gary G., a minor, by his next friend, Ann L. McNitt, Thomas F., a minor, by his next friend, Ann L. McNitt, Anthony F., a minor, by his next friend, Ann L. McNitt, Erica F., a minor, by her next friend, Ann L. McNitt, Anna F., a minor, by her next friend, Ann L. McNitt, Andrea F., a minor, by her next friend, Ann L. McNitt, Gregory E., a minor, by his next friend, Ann L. McNitt, Rachel E., a minor, by her next friend, Ann L. McNitt, Mary E., a minor, by her next friend, Ann L. McNitt, Dirk E., a minor, by his next friend, Ann L. McNitt, Katherine D., a minor, by her next friend, Ann L. McNitt, Justin D., a minor, by his next friend, Ann L. McNitt, Amelia C., a minor, by her next friend, Ann L. McNitt, Emily B., a minor, by her next friend, Ann L. McNitt, Donald B., a minor, by his next friend, Ann L. McNitt, Jackson B., a minor, by his next friend, Ann L. McNitt, Mark A., Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6983 Page 67 of 77 Page 4 of 13 Zola H. v. Snyder Christopher Bradley Clare a minor, by his next friend, Ann L. McNitt, Plaintiffs: David A. Kallman, Kallman Legal Group, [*3] PLLC, Lansing, MI. For Rick Snyder, in his official capacity as Governor of the State of Michigan, Kumari Reynolds, individually and in her official capacity as Foster Worker at OFS, Latrice Neal, individually and in her official capacity as Foster Worker at OFS, Rebecca Fockler, individually and in her official capacity as Adoption Worker at St. Clair County DHS, Deborah Walbecq, individually and in her official capacity as Adoption Worker at St. Clair County DHS, Kay Andrzejak, individually and in her official capacity as Director of St. Clair County DHS, St. Clair County Department of Human Services, Felisha Beadle, individually and in her official capacity as Foster Worker at ECCI, Nancy Hill-Leadmon, individually and in her official capacity as Foster Adoption Worker for Genesee County DHS, Linda Keller, individually and in her official capacity as Foster Adoption Worker for Genesee County DHS, Barbara McElmore, individually and in her official capacity as Foster Adoption Worker for Genesee County DHS, Alma Sykes-Edwards, individually and in her official capacity as Foster Adoption Worker for Genesee County DHS, Erin Deering, individually and in her official capacity as Foster [*4] Adoption Worker for Genesee County DHS, Tania Otero, individually and in her official capacity as Protective Services Worker for Genesee County DHS, Kalilah Mageed, individually and in her official capacity as Foster Adoption Supervisor for Genesee County DHS, Melissa Jenniches, individually and in her official capacity as Protective Services Worker for Genesee County DHS, Jennifer Dillard, individually and in his official capacity as Foster Adoption Worker for Genesee County DHS, Timothy Spencer, individually and in his official capacity as Foster Adoption Worker for Genesee County DHS, Stacie Bowens, individually and in her official capacity as Director for Genesee County DHS, Genesee County Department of Human Services, Angela Wright, in her official capacity as a Supervisor for Clinton County DHS, Joel Brown, in his official capacity as a Protective Services Worker for Clinton County DHS, Clinton County Department of Human Services, Ingham County Department of Human Services, Martha Ballou, in her official capacity as Adoption Subsidy Program Specialist, Veronica Jones, in her official capacity as Adoption Subsidy Program Specialist, Bonnie Watkins, in her official capacity as [*5] Supervisor of the Adoption Subsidy Program, Cathe Hoover, in her official capacity as Director of the Adoption Services, Steve Yager, in his official capacity as Acting Director of the Department of Human Services Children's Services, Duane Berger, in his official capacity as Chief Deputy Director of the Michigan Department of Human Services, Maura Corrigan, in her official capacity as Director of the Michigan Department of Human Services, Defendants: Joshua S. Smith, MI Department of Attorney General, Health Education and Family Services, Lansing, MI; Katherine J. Bennett, Michigan Department of Attorney General, Lansing, MI. For Ennis Center for Children, Incorporated, as licensed sub-contractor and agent for the Department of Human Services, Kristin Varner, individually and in her official capacity as Supervisor of ECCI, Robert. E. Ennis, individually and in his official capacity as President of ECCI, Defendants: James M. Straub, Straub, Seamon, St. Joseph, MI; Sarah J. Hartman - NOT SWORN, Straub, Seaman & Allen, P.C., St. Joseph, MI. For Catholic Services of Macomb, as licensed sub- contractor and agent for the Department of Human Services, Defendant: Karen L. Piper, Bodman LLP, [*6] Troy, MI. For Child and Family Charities, as licensed sub- contractor and agent for the Department of Human Services, James Paparella, individually and in his official capacity as Executive Director at CFC, Defendants: Dennis D. Alberts, Ogne, Alberts, Troy, MI. For Oakland Family Services, as licensed sub- Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6984 Page 68 of 77 Page 5 of 13 Zola H. v. Snyder Christopher Bradley Clare contractor and agent for the Department of Human Services, Rachel Lubetsky, individually and in her official capacity as Foster Worker at OFS, Lisa Westphal, individually and in her official capacity as Foster Worker at OFS, Naomi Schwartz, individually and in her official capacity as Adoption Supervisor at OFS, Michael S. Earl, individually and in his official capacity as President/CEO of OFS, Defendants: Karen Libertiny Ludden, Maddin Hauser, Southfield, MI; Richard M. Mitchell, Maddin, Hauser, Southfield, MI. Judges: ROBERT H. CLELAND, UNITED STATES DISTRICT JUDGE. Opinion by: ROBERT H. CLELAND Opinion OPINION AND ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS Plaintiffs, adoptive parents, nineteen adopted children (proceeding through a "next friend," see Whitmore v. Arkansas, 495 U.S. 149, 162-64, 110 S. Ct. 1717, 109 L. Ed. 2d 135 & n.4 (1990)), and three adoptive siblings (that is, biological children of the adoptive parents), sue the governor [*7] of Michigan, managers in the Michigan Department of Human Services (DHS), county branches of the DHS, the county branches' officials and social workers, social-service contractors, and the contractors' employees. Plaintiffs allege that social workers mistreated children awaiting adoption, that social workers failed to disclose children's disabilities to adoptive parents, that social workers harassed and intimidated adoptive parents, and that the State has withheld child-welfare payments. The parties submit hundreds of pages of briefing contesting five motions to dismiss the 133-page complaint. No hearing is needed, see E.D. Mich. LR 7.1(f)(2); each motion will be granted. I. BACKGROUND Plaintiffs sue four government offices, twenty-six government officials, four adoption charities, and fifteen charity workers-forty-nine defendants in all. Fourteen Defendants-ten of the government officials and the four government offices-are sued only in an official capacity. Thirty-five Defendants are alleged to have individual liability, but twenty- eight of the thirty-five are never accused in the complaint of any specific wrongdoing. The accusations against the remaining seven Defendants arise from [*8] only four of the nineteen referenced adoptions. As will become clear, at present only those four require description (the four in any case resemble the others). The allegations that follow come from the complaint and are, at this stage, accepted as the truth. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). A. Amelia C. Mr and Mrs C. began caring for Amelia C. in 2007, when she was four months old; but they accepted her temporarily, as an "emergency" placement, and formed no plan to keep her. Unidentified DHS agents ignored Amelia's signs of alcohol and drug withdrawal, and they failed to tell Mr and Mrs C. of Amelia's mother's drinking during pregnancy. They apparently told Mr and Mrs C. of Amelia's skin infection and syphilis, but they never said how to manage or limit the infection, and they never had Amelia tested for other diseases. They refused to register Amelia for benefits, and one of them, upon inquiry, "angrily" told Mr and Mrs C. of Amelia's fine health-her habit of running herself into the wall notwithstanding. For more than a year Mr and Mrs C. declined to adopt Amelia. In February 2008, the DHS sent Mr and Mrs C. a letter reporting other couples' interest in Amelia and [*9] asking Mr and Mrs C. to decide promptly, within four days, whether to adopt her. They agreed to. They then tried again, several times, to obtain benefits for her. Unnamed DHS agents obstructed Mr and Mrs C. by threatening to investigate them, by providing incomplete applications, by neglecting to process applications, Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6985 Page 69 of 77 Page 6 of 13 Zola H. v. Snyder Christopher Bradley Clare and by wrongfully denying an application. Although Mr and Mrs C. asked in writing to delay the adoption, in April 2009 the DHS scheduled, without notice, and six days apart, two adoption hearings; at the hearings, in their absence, Mr and Mrs C. became Amelia's adoptive parents. When they learned of the adoption, Mr and Mrs C. went to a DHS county office, where they met Linda Keller, the only Defendant Amelia names in the complaint. Keller refused to answer questions and, handing Mr and Mrs C. the order of adoption, said, "She's yours now." Amelia attacked Mr and Mrs C.'s granddaughter, and tried repeatedly to kill their dog. B. Gary and Michael G. Defendant Catholic Services of Macomb (CSM) placed for adoption Gary G. and his brother Michael G. Mr and Mrs G. paid to adopt Gary and Michael but say that CSM should have charged its fee to the State. Gary's adoption became final [*10] in November 1996. Before the adoption CSM failed to report signs that Gary's birth parents abused him, failed to tell Mr and Mrs G. that Gary displayed signs of fetal exposure to alcoholism, failed to obtain psychological testing or treatment, and failed to tell Mr and Mrs G. about available benefits. The DHS later ignored Mr and Mrs G.'s requests for benefits and for reimbursement of the money paid to CSM. A CSM manager, Defendant Joanne Ales, often asked Mr and Mrs G. to adopt Michael; in time, they did; the adoption became final in August 1999. Michael arrived from his birth parents with marks of abuse, with signs of sexual molestation, and with signs of prenatal harm, none of which CSM had reported to the authorities or to Mr and Mrs G. Ales declined to speak to Mr and Mrs G. about Michael's abuse and disability, and she said Mr and Mrs G. needed to pay her to arrange a psychological evaluation that should have been free. Although testing revealed that Michael suffers from reactive attachment disorder, a "complex psychiatric illness" that causes disruptive and dissociative behavior and that, "without treatment, . . . can affect permanently a child's social and emotional development,"1 [*11] Ales, after hearing the diagnosis, told Mr and Mrs G., "All you have to do is love [Michael] and he'll be fine." Ales told Mrs G., "If you ask for an adoption subsidy, we'll take [Michael] away." Mrs G. "wrote requests" for benefits, apparently to the DHS, for the next seven years. Eventually a hearing occurred, and an administrative law judge ordered the DHS to process an application for benefits. The DHS complied and denied the application, and a probate court affirmed the DHS's decision (which Mr and Mrs G. call "fraudulent"). Michael breaks windows and doors, sets fires, beats and bites his family, and exposes himself. C. Zola H. Defendant Oakland Family Services (OFS) placed Zola H. with Mr and Mrs H.; the adoption became final in April 2011. OFS failed to tell Mr and Mrs H. that Zola had been twice hospitalized before her adoption. Defendant Latrice Neal failed, when meeting with Mr and Mrs H., to mention [*12] Zola's sickle-cell disease. See Sickle Cell Disease, Centers for Disease Control and Prevention, http:// www.cdc.gov/ ncbddd/ sicklecell/ facts.html. When Mr and Mrs H. sought Zola's medical records, Defendant Rachel Lubetsky stated that the DHS had none. Someone, perhaps a DHS agent, gave Mr and Mrs H. an incomplete benefits application. When Mr and Mrs H. asked about benefits for Zola, Defendant Lisa Westphal said Zola did not qualify. Mr and Mrs H. waived benefits (as a result, they say, of fraud). Since her adoption, Zola has had multiple surgeries and blood transfusions and has been hospitalized a 1 Reactive Attachment Disorder, American Academy of Child & Adolescent Psychiatry, http:// www.aacap.org/AACAP/Families_and_Youth/Facts_for_Families/ Facts_for_Families_Pages/Reactive_Attachment_Disorder_85.aspx (websites visited Aug. 26, 2013) (spaces inserted in each URL reference). Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6986 Page 70 of 77 Page 7 of 13 Zola H. v. Snyder Christopher Bradley Clare dozen times. II. STANDARD HN1 "To survive a motion to dismiss, a complaint must contain sufficient factual matter . . . to state a claim for relief that is plausible on its face." Iqbal, 556 U.S. at 678. III. DISCUSSION Plaintiffs sue different types of defendants (government and private) in different capacities (official and personal) and with different measures of factual allegation (often none at all). Defendants, in shifting alignments, raise an array of arguments of both broad and discrete application. In addressing the five motions to dismiss, attentive categorization is therefore essential. A. [*13] The State Defendants 1. Official Capacity Against the State, Plaintiffs seek an award of compensatory damages, an injunction requiring the payment of child welfare, and several other broad injunctions and declaratory judgments. "Not every violation of a right yields a remedy," however. Kiyemba v. Obama, 555 F.3d 1022, 1027, 384 U.S. App. D.C. 375 (D.C. Cir. 2009), vacated, 559 U.S. 131, 130 S. Ct. 1235, 175 L. Ed. 2d 1070 (2010), reinstated, 605 F.3d 1046, 390 U.S. App. D.C. 429 (2010). The fastest way to see the flaws in the action against the State Defendants as officials is to assume the violation of a right, and then look for an available remedy-and none appears. a. Monetary Relief (Sovereign Immunity) HN2 The doctrine of sovereign immunity-an implicit constitutional principle, partly confirmed by the Eleventh Amendment, Hans v. Louisiana, 134 U.S. 1, 10-16, 10 S. Ct. 504, 33 L. Ed. 842 (1890); In re State of N.Y., 256 U.S. 490, 497, 41 S. Ct. 588, 65 L. Ed. 1057 (1921); Alden v. Maine, 527 U.S. 706, 728-29, 119 S. Ct. 2240, 144 L. Ed. 2d 636 (1999)-bars a federal action against a State absent its consent. Sovereign immunity governs an action against a state official if the plaintiff in effect seeks relief from the State, Pennhurst St. Sch. & Hosp. v. Halderman, 465 U.S. 89, 101-02, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984), such as money from the State treasury, Edelman v. Jordan, 415 U.S. 651, 663, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974). [*14] The State Defendants, when acting as officials, can pay Plaintiffs only the State's money. An action against them as officials for money, including for child-welfare payments, is therefore barred. See Ernst v. Rising, 427 F.3d 351, 367-72 (6th Cir. 2005) (en banc); Barton v. Summers, 293 F.3d 944, 950 (6th Cir. 2002). Plaintiffs present a series of unconvincing responses to the bar. First, they cite a DHS manual as a waiver of sovereign immunity. But the manual warns merely that the Eleventh Amendment will not protect a misbehaving employee from personal liability. (Dkt. # 47 Pg ID 2085.) That does Plaintiffs no good, because personal liability is not sovereign liability-the manual waives nothing. See also Pennhurst, 465 U.S. at 99 (noting that a waiver of sovereign immunity must be "unequivocal"). Second, Plaintiffs say that they may try to invoke the theory of Ex Parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908). Perhaps so, but HN3 Ex Parte Young applies only if "the relief sought is . . . equitable and prospective." Westside Mothers v. Haveman, 289 F.3d 852, 860 (6th Cir. 2002). Ex Parte Young notwithstanding, HN4 sovereign immunity bars a request for relief from the State that will "lead inexorably to [*15] the payment of state funds." Ernst, 427 F.3d at 371. Third, Plaintiffs assert a claim under the Americans with Disabilities Act, and they say that that claim, at least, may proceed, because the ADA, remedial legislation under § 5 of the Fourteenth Amendment, see Tennessee v. Lane, 541 U.S. 509, 518, 124 S. Ct. 1978, 158 L. Ed. 2d 820 (2004), abrogates sovereign immunity, 42 U.S.C. § 12202. But the complaint alleges a violation only of HN5 the ADA's anti-retaliation provision, 42 U.S.C. § 12203, under which money damages are unavailable, Kramer v. Banc of Am. Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6987 Page 71 of 77 Page 8 of 13 Zola H. v. Snyder Christopher Bradley Clare Sec., LLC, 355 F.3d 961, 965 (7th Cir. 2004). Fourth, Plaintiffs argue at length that "municipalities no longer retain[] sovereign immunity." (Dkt. # 47 Pg ID 2002 (quoting Will v. Mich. Dep't of State Police, 491 U.S. 58, 67 n.7, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989)).) There is, however, no "municipality" in this action. Finally, Plaintiffs say that "sovereign immunity does not protect against violations of Medicaid regulations" and that "this [abrogation of sovereign immunity]" applies here "because Medicaid must accompany" child-welfare payments. (Dkt. # 47 Pg ID 2000-01.) No explanation accompanies this abstruse argument, which is therefore waived. See White Oak Dev., LLC v. Wash. Township, 606 F.3d 842, 850 (6th Cir. 2010); [*16] Romo v. Largen, 723 F.3d 670, 2013 U.S. App. LEXIS 14878, 2013 WL 3801640 (6th Cir. July 23, 2013) (Sutton, J., concurring in part and in the judgment) (noting that a brief waives an issue if "it leaves the reader guessing what [the party] means to argue"). Plaintiffs cite Rosie D. v. Swift, 310 F.3d 230, 237 (1st Cir. 2002), and Reynolds v. Giuliani, 118 F. Supp. 2d 352, 382 (S.D.N.Y. 2000), but those cases hold merely that nothing in the Medicaid Act forecloses the kind of prospective injunctive relief normally allowed under Ex Parte Young. They never contradict the Sixth Circuit authority prohibiting an injunction against the State that will "lead inexorably to the payment of state funds." Ernst, 427 F.3d at 371. The parties disagree about whether a DHS county branch constitutes a State office with sovereign immunity. At first each side declared a position without explanation. In an invited supplemental brief, however, the State Defendants establish that the DHS, main office and county branches together, receives per year more than a billion dollars from the State, and less than thirty-three million from local sources. See 2012 Mich. Pub. Acts 200 p.143, http:// www.legislature.mi.gov/ documents/ 2011- 2012/ [*17] publicact/ pdf/ 2012-PA-0200.pdf. Defendants report that within the DHS, the main office writes each policy manual, creates each training course, and controls each matter of hire and discipline. (Dkt. # 58, Ex. 57.) The State pays any judgment against a county branch. See Mich. Comp. Laws § 18.1396; Lintz v. Skipski, 807 F. Supp. 1299, 1303 n.3 (W.D. Mich. 1992). Accordingly, HN6 a county branch, as part of the State, is invested with sovereign immunity. HN7 "A court may enter a prospective injunction that costs the state money . . . if the monetary impact is ancillary, i.e., not the primary purpose of the suit." Ernst, 427 F.3d at 371. Plaintiffs might succeed, later, at demonstrating their entitlement to an injunction that requires the State to comply with federal child-welfare law and that "happens" to result in the payment of money to Plaintiffs. At present, however, Plaintiffs offer neither authority nor argument (as opposed to bare assertion) showing that they seek money "ancillary" to other relief. b. Injunctive Relief (Mootness) There are problems with the injunctive relief sought beyond just the fiscal implications. For one thing, Plaintiffs seek too much. They want, for example, an [*18] injunction commanding the DHS "to reform [its] adoption system" to "compl[y]" with "the Americans with Disabilities Act, the Rehabilitation Act, 42 U.S.C. [§] 1983," and several other laws. (Dkt. # 1 Pg ID 132.) That is the pattern of an unwarrantable "obey-the-law" injunction. See E.E.O.C. v. Wooster Brush Co. Emp. Relief Ass'n, 727 F.2d 566, 576 (6th Cir. 1984); S.E.C. v. Goble, 682 F.3d 934, 949 (11th Cir. 2012). Nonetheless, overbreadth is, at this stage, the small problem. The big problem is that the adopted children have been adopted. An order of adoption places a child wholly in the custody of her adoptive parents, Mich. Comp. Laws § 710.60, and no Plaintiff seeks to disturb an adoption order. Plaintiffs say they want to stop the State Defendants' "harassing" and "intimidating" behavior. But the State Defendants' alleged mistreatment of Plaintiffs during the adoption process is over. And although mistreatment allegedly continued after the adoptions, Plaintiffs Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6988 Page 72 of 77 Page 9 of 13 Zola H. v. Snyder Christopher Bradley Clare never identify and seek to enjoin specific, ongoing wrongful conduct not directly connected to the granting of benefits. Whatever harm Plaintiffs suffered in the past, a non-monetary injunction will not affect them now. [*19] This part of the action is moot. See DeFunis v. Odegaard, 416 U.S. 312, 316-19, 94 S. Ct. 1704, 40 L. Ed. 2d 164 (1974). 31 Foster Children v. Bush, 329 F.3d 1255 (11th Cir. 2003), declared part of an action moot in a similar situation. Alleging "widespread deficiencies in [Florida's] foster care system," the plaintiffs sought equitable relief, including an injunction against "arbitrary and capricious actions," the placing of children "into unnecessary state-created danger," and the denial, "without an adequate and fair procedure," of "state-created entitlements." 329 F.3d at 1261-62. Two of the plaintiffs were adopted during the appeal. Bush states: "Because [the two children] have been adopted, they are no longer in the defendants' legal or physical custody and therefore cannot be further harmed by the defendants' alleged illegal practices. Because the plaintiffs . . . seek[] only prospective injunctive relief against the defendants to prevent future harm, no live controversy exists[.]" 329 F.3d at 1263. Plaintiffs here, like the plaintiffs in Bush, seek to alter the future operation of an adoption process that allegedly harmed them, but that almost definitely will not harm them again. And to the extent they seek [*20] a remedy for wrongs after an adoption, Plaintiffs here, like the plaintiffs in Bush, request relief too vaguely to avoid mootness. c. Declaratory Relief Because Plaintiffs establish no entitlement to injunctive relief, declaratory relief is neither proper nor prudent. See Apple, Inc. v. Motorola, Inc., 869 F. Supp. 2d 901, 923-24 (N.D. Ill. 2012) (Posner, J.). There is therefore no remedy to be had from the State Defendants as officials. 2. Individual Capacity a. Jurisdiction The relevant State Defendants, responding to the claims against them as individuals, raise several jurisdictional defenses, each of which is either defective or indistinct. HN8 Federal Rule of Civil Procedure 10(a) requires a complaint to name each party. If there is a compelling need for secrecy-as when the plaintiff is a child, for example-a plaintiff may, with leave from the district court, proceed under a pseudonym. Doe v. Porter, 370 F.3d 558, 560 (6th Cir. 2004). The State Defendants assert, without authority or argument, that Plaintiffs cannot now repair their failure to first seek permission to proceed anonymously, and that the entire action must therefore be dismissed for lack of jurisdiction. The State Defendants [*21] narrow the argument, although insufficiently, in a reply, saying that only some of the anonymous Plaintiffs had to ask to use a pseudonym, but continuing to assert that the action brought by those Plaintiffs must end. A State's defendants, in an action involving the State's citizens, and in the absence of controlling authority, might do better to "reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits." Conley v. Gibson, 355 U.S. 41, 48, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). In any event, there is no support for the State Defendants' argument. Indeed, HN9 where the complaint names the wrong plaintiff, Rule 17(a)(3) allows "a reasonable time . . . for the real party in interest to ratify, join, or be substituted into the action," after which "the action proceeds as if it had been originally commenced by the real party in interest." See EW v. NY Blood Ctr, 213 F.R.D. 108, 109-10 (E.D.N.Y. 2003); Doe v. Barrow Cnty, Ga., 219 F.R.D. 189, 192 (N.D. Ga. 2003). The State Defendants contend that the "domestic relations" exception to federal jurisdiction bars most [*22] of the action. HN10 The exception applies, however, only to an action in which the plaintiff "sues in federal court for divorce, alimony, or child custody." Catz v. Chalker, 142 F.3d 279, Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6989 Page 73 of 77 Page 10 of 13 Zola H. v. Snyder Christopher Bradley Clare 292 (6th Cir. 1998), overruling on other grounds recognized, Coles v. Granville, 448 F.3d 853, 859 n.1 (6th Cir. 2006); see 13E Wright & Miller, Federal Practice & Procedure § 3609 & n.8 (3d ed. 2009). There are no exceptions to the exception: Ankenbrandt v. Richards, 504 U.S. 689, 702-04, 112 S. Ct. 2206, 119 L. Ed. 2d 468 (1992), holds that a federal court is divested not of the power to decide a tort action connected to an adoption, but of the power literally to issue a child-custody decree. The parents in this action, in suing State agents as individuals, seek payment for the alleged neglect and ill-treatment they suffered during and after the adoption process. They seek neither to gain nor to yield custody of a child. The State Defendants' argument that the domestic relations exception nonetheless applies stands on authority that predates Ankenbrandt. Zak v. Pilla, 698 F.2d 800, 801 (6th Cir. 1982). The State Defendants say that most of the action is barred by HN11 the Rooker-Feldman doctrine, which prohibits a party that loses [*23] an action in state court from seeking in federal court a rejection of the adverse state-court order or judgment. Berry v. Schmitt, 688 F.3d 290, 298-99 (6th Cir. 2012). But Plaintiffs never ask to have a state-court order or judgment enjoined, set aside, or declared unlawful. See Berry, 688 F.3d at 300; 18B Wright & Miller, supra § 4469.1. The State Defendants note that evidence produced in this action might show that some state-court adoption orders stand on faulty conclusions of fact; but Rooker-Feldman neither "bar[s] federal jurisdiction simply because . . . a matter [was] previously litigated in state court" nor "address[es] potential conflicts between federal and state court orders." Berry, 688 F.3d at 298-99. Plaintiffs never attack a state-court order or judgment and, therefore, Rooker-Feldman does not apply. The State Defendants raise the possibility of abstention under Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971), and the requirement that a plaintiff exhaust an administrative remedy, but do not develop either point. Without discussion in briefing it is hard to tell what, if anything, might be barred by Younger or by a failure to exhaust. The court need not speculate, however, because [*24] HN12 Younger abstention is not jurisdictional, Chase Bank USA, N.A. v. Cleveland, 695 F.3d 548, 558 (6th Cir. 2012); Kaufman v. Kaye, 466 F.3d 83, 88 n.1 (2d Cir. 2006), and the State Defendants cite no jurisdictional exhaustion requirement, see Bangura v. Hansen, 434 F.3d 487, 493 n.1 (6th Cir. 2006); Bartlett v. U.S. Dept. of Agric., 716 F.3d 464, 472 (8th Cir. 2013). The State Defendants raise also affirmative defenses-res judicata, collateral estoppel, and a limitation-which at this stage require no attention. See Lutz v. Chesapeake Appalachia, L.L.C., 717 F.3d 459, 464 (6th Cir. 2013); Gilbert v. Ferry, 413 F.3d 578, 579 (6th Cir. 2005); DLX, Inc. v. Kentucky, 381 F.3d 511, 519 n.4 (6th Cir. 2004). b. Failure to Plead Although the complaint alleges many wrongs by "a DHS worker" or "social workers," only one State Defendant, Linda Keller, is both sued as an individual and accused of specific wrongdoing (and all she allegedly did was refuse to talk with Mr and Mrs C. except to say, of Amelia C., "She's yours now"). The State Defendants enjoy qualified immunity, but, even apart from that, the action against them as individuals (Keller aside) fails for want of individualized allegation. In [*25] Bank of America, N.A. v. Knight, 725 F.3d 815, 2013 U.S. App. LEXIS 16474, 2013 WL 4016522 (7th Cir. Aug. 8, 2013) (Easterbrook, J.), the plaintiff bank alleged that the defendants committed fraud and drained money from a failing firm. The district judge dismissed the action for failure to state a claim because the complaint addressed each defendant at once. The court of appeals, affirming, explained that a complaint must allege who did what: According to the Bank, its claims do not depend on proof of fraud, so [the heightened pleading standard of] Rule 9(b) is irrelevant. Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6990 Page 74 of 77 Page 11 of 13 Zola H. v. Snyder Christopher Bradley Clare We need not decide, because the problem the district court identified spoils the complaint as a matter of normal pleading standards. Iqbal and Twombly hold that a complaint must be dismissed unless it contains a plausible claim. A contention that "the defendants looted the corporation"-without any details about who did what-is inadequate. Liability is personal. An allegation that someone looted a corporation does not propound a plausible contention that a particular person did anything wrong. The Rules of Civil Procedure set up a system of notice pleading. Each defendant is entitled to know what he or she did that is asserted to be wrongful. Knight, F.3d , 2013 U.S. App. LEXIS 16474, 2013 WL 4016522. [*26] Like the complaint in Knight, the complaint in this action, when it fails "to imput[e] concrete acts to specific litigants," id., fails to state a plausible claim. And like the defendants in Knight, the State Defendants in this action (besides Keller) lack notice; each is ignorant of what he supposedly did wrong and, so, ignorant of how to respond and defend himself. The complaint's allegations suffice, Plaintiffs argue, because the State should know from its own records which Defendants worked with which children. The principle this point seems to aim for is that a pleading standard may be relaxed if pertinent information "is only within the opposing party's knowledge." Yuhasz v. Brush Wellman, Inc., 341 F.3d 559, 566 (6th Cir. 2003) (affirming the district court's holding that a plaintiff "is not entitled to a relaxed standard because the information he seeks is not exclusively in the possession of [the defendant]"). Plaintiffs should know who talked to them-or ignored them, harassed them, or lied to them-as well as or better than the State Defendants do. It is not the defendant's task to guess at which, if any, of an enormous complaint's allegations address her; it is not for her, [*27] either by herself or in concert with other defendants, to piece disordered allegations into a functioning case; she need not do the work. It is the plaintiff who must show that he is not guessing when he names a defendant, that he has designed his action, that he has not been careless about suing people. Plaintiffs appear to name all possible defendants in the hope that some, after being wrung through discovery, will look like the right defendants. This a plaintiff may not do. c. Qualified Immunity Keller raises qualified immunity, which protects her from liability under 42 U.S.C. § 1983-the source of Plaintiffs' federal right of action-unless she clearly violated the law. Plaintiffs must disprove Keller's immunity. Sutton v. Metro. Gov. of Nashville & Davidson Cnty, 700 F.3d 865, 871 (6th Cir. 2012). HN13 There is no standard charge, no trick of pleading, by which a plaintiff may curvet a claim of qualified immunity without an understandable legal analysis. Indefinite principle does not prevail; a plaintiff may not merely cite a general right and assert its violation. Brosseau v. Haugen, 543 U.S. 194, 198, 125 S. Ct. 596, 160 L. Ed. 2d 583 (2004); Anderson v. Creighton, 483 U.S. 635, 639-40, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987). A successful deflection [*28] of qualified immunity cannot be founded on an unexplained quotation only vaguely on point, or a string of inference unaccompanied by authority. A plaintiff must establish "beyond debate" the existence, at the time the defendant acted, of a discrete right violated. Ashcroft v. Al- Kidd, 131 S.Ct. 2074, 2083, 179 L. Ed. 2d 1149 (2011). Plaintiffs have not come to grips with this standard. The complaint contains lists of putative rights- lists that go on for pages. To confirm the operation of these rights, Plaintiffs offer a block quote, of less than obvious relevance, from a 1988 decision, in another circuit, that was vacated. See Del A. v. Edwards, 855 F.2d 1148 (5th Cir. 1988), vacated, 862 F.2d 1107 (1988), appeal dis'd, 867 F.2d 842 (1989). They cite nothing else. Instead of sustaining the rights at issue, and explaining a violation of each, they repeat "just a sample" of the rights they Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6991 Page 75 of 77 Page 12 of 13 Zola H. v. Snyder Christopher Bradley Clare invoke, assert the validity of them all, and assert that clear violation of each "is readily apparent." (Dkt. # 47 Pg ID 1996-97.) Actual analysis is absent. Plaintiffs basically contend that the complaint alleges violations of the law too obvious to require elaboration. That is not so, as the action against Keller demonstrates. [*29] If a DHS employee refuses to answer a couple's questions about an adoption, and retreats to the authority of an adoption order, what obviously apparent right has she offended? Plaintiffs mention often the right to due process, a right that rarely applies self- evidently outside a courtroom. (It was in a case on due process that Justice Holmes famously wrote, "Such words as 'right' are a constant solicitation to fallacy." Jackman v. Rosenbaum Co., 260 U.S. 22, 31, 43 S. Ct. 9, 67 L. Ed. 107 (1922); see also Anderson, 483 U.S. at 639 (noting the ease-and impropriety-of invoking the right to due process abstractly).) Plaintiffs claim the adoption order was uncertified, but they never say why that would mean Keller acted illegally, rather than just rudely and in haste. Plaintiffs speak consistently of plotting and fraud, but never in sufficient detail, see Bennett v. MIS Corp., 607 F.3d 1076, 1101 (6th Cir. 2010) (observing that because "claims of fraud can be fabricated easily," a plaintiff must plead fraud with description), and never in express and cogent connection to a federal law. The complaint asserts claims under state law and Keller may, of course, seek state-law qualified immunity. See Odom v. Wayne Cnty, 482 Mich. 459, 760 N.W.2d 217 (Mich. 2008). [*30] As things stand, however, there is a substantial possibility of the court's relinquishing supplemental jurisdiction, so only federal law needs discussion. B. The Private Defendants To repeat: Plaintiffs fail to engage the issue of qualified immunity or, for the most part, to plead personalized facts, and affirmative defenses and state law as yet need no attention. With these points settled, the remainder of this round of the action comes quickly to an end. a. Absolute Immunity The private Defendants argue that they enjoy federal-law absolute immunity. HN14 For a social worker, as for a prosecutor, the margin of absolute immunity runs not with title but with function, the pertinent function in both instances being work at law; petitioning a court, conducting an action, testifying under oath, and so forth. Absolute immunity protects a social worker as she acts as a legal advocate-that is it. Kovacic v. Cuyahoga Cnty Dept. of Children & Family Servs., 724 F.3d 687, 2013 U.S. App. LEXIS 15805, 2013 WL 3929859, *3 (6th Cir. July 31, 2013); Holloway v. Brush, 220 F.3d 767, 774-77 (6th Cir. 2000). A lot of the complaint alleges deceit or torment outside a legal process. The complaint says, for example, that CSM and Joanne Ales [*31] hid from Mr and Mrs G the abuse and illness of Gary and Michael, never informed them about Michael's need for treatment, never informed them about the availability of benefits, and threatened to remove Michael if they applied for benefits. Although these alleged acts occurred near the time a court approved Gary and Michael's adoption, none of the acts constitutes legal advocacy. Cf. Holloway, 220 F.3d at 776-77 (holding that a social worker lacks absolute immunity for out-of-court acts such as misinforming a parent about her legal rights). If an amended complaint states an actionable claim, a dispute will arise about which specific acts absolute immunity protects. At the moment it is enough to say that such immunity affects only a small part of the action. b. State Action Two groups of private Defendants face specific allegations, CSM and its manager, Ales, and OFS and its workers, Neal, Lubetsky, and Westphal. Contesting the federal-law claims against them, the two groups raise conflicting but equally successful arguments. If the private Defendants are state actors-it is possible, see Bartell v. Lohiser, 215 Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6992 Page 76 of 77 Page 13 of 13 Zola H. v. Snyder Christopher Bradley Clare F.3d 550, 556-57 (6th Cir. 2000)-then, the OFS group says, qualified immunity [*32] applies and, Plaintiffs having neglected the issue, defeats the federal claims. If they are not state actors, then, according to the CSM group, the federal claims fail because usually only a state actor can be sued under 42 U.S.C. § 1983. Both groups are right. (Who is a state actor is, therefore, an issue for another day.) No doubt the complaint accuses CSM, OFS, and their employees of behaving odiously, but the question arises how they violated federal law. Plaintiffs' failure to present a sound answer has been addressed. An additional point merits some discussion. Although they acknowledge that only § 1983 gives or might give a right of action for many of their federal claims, Plaintiffs also search for a right of action in assorted statutes and regulations. There are two problems here. First, the counts of the complaint are tangled and in disarray. Count nine invokes eight laws or rules; count ten alleges the violation of entire sub-chapters of regulations; count six proclaims illimitable "violation of civil rights"-no count approaches precision. "We no longer insist upon technical rules of pleading, but it will ever be difficult in a jury trial"-or in motion practice-"to segregate [*33] issues which counsel do not separate in their pleading, preparation or thinking." O'Donnell v. Elgin, J. & E. Ry. Co., 338 U.S. 384, 392, 70 S. Ct. 200, 94 L. Ed. 187 (1949) (Jackson, J.). Second, Plaintiffs address only in passing the issue of allowing a private right of action. HN15 A plaintiff invoking a law must prove that Congress meant to let her use it, Alexander v. Sandoval, 532 U.S. 275, 286-88, 121 S. Ct. 1511, 149 L. Ed. 2d 517 (2001), in pursuit of a defined end, Blessing v. Freestone, 520 U.S. 329, 342-43, 117 S. Ct. 1353, 137 L. Ed. 2d 569 (1997). This type of analysis is absent. As CSM says, HN16 liability under § 1983 typically arises only from the conduct of a state actor. Paige v. Coyner, 614 F.3d 273, 278 (6th Cir. 2010). True, a private party that conspires with the State to violate someone's rights can at once expose itself to § 1983 yet deprive itself of qualified immunity, Cooper v. Parrish, 203 F.3d 937, 952 n.2 (6th Cir. 2000), but no material allegations suggest a conspiracy between State and private actors. Cf. Filarsky v. Delia, 132 S.Ct. 1657, 1666- 67, 182 L. Ed. 2d 662 (2012) (discussing other narrow authority not currently applicable, and in any event waived, that constrains a private defendant's invoking qualified immunity). IV. CONCLUSION IT IS ORDERED that each motion to dismiss [*34] [Dkts. ## 29, 32-35] is GRANTED. Plaintiffs may by September 24, 2013, (1) submit a complaint amended in accord with this order and (2) move for a protective order allowing the use of pseudonym. /s/ Robert H. Cleland ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE Dated: September 3, 2013 End of Document Case 1:16-cv-00874-GJQ-PJG ECF No. 75-1 filed 12/23/16 PageID.6993 Page 77 of 77