Lake v. Southgate, City of et al

Filing 27

OPINION and ORDER granting deft City of Southgate's 21 MOTION for Summary Judgment Signed by District Judge Nancy G. Edmunds. (CBet)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CHRISTINA LAKE
Plaintiff,
Case No.16-10251
v.
Honorable Nancy G. Edmunds
CITY OF SOUTHGATE, et al.,
Defendants.
/
OPINION AND ORDER GRANTING DEFENDANT CITY OF SOUTHGATE'S MOTION
FOR SUMMARY JUDGMENT [21]
Plaintiff Christina Lake is suing Defendant City of Southgate under 42 U.S.C. § 1983
for allegedly violating her constitutional rights. Plaintiff specifically claims that Southgate
violated her right to substantive due process by failing to enforce city ordinances with
respect to her residence, which contained toxic mold and backed-up sewage. The matter
now before the Court is Southgate's motion to dispose of Plaintiff's claim either through
judgment on the pleadings or summary judgment. For the reasons below, the Court treats
Southgate's motion purely as a motion for summary judgment and GRANTS the motion.
I.

Background
This case centers on a residence that Plaintiff rented in Southgate, Michigan for a

large portion of 2015. The relevant facts date back to June 2014, when Southgate
corresponded with the owner of record for the residence, H&E Holdings, LLC. Southgate
advised H&E that the City Code requires inspections for single family residential rental units
each time they are rented, re-rented, or every three years. (Dkt. 25-1, at 2.) In response,
the principal owner of H&E, Hysen Elmazaj, applied for a Certificate of Occupancy. (Dkt.

21-8.) Southgate then conducted an inspection, identified several items in need of repair,
and refused to issue a Certificate. (Dkt. 21-9.) The City also informed Elmazaj that the
property could not be occupied until a Certificate was obtained. (Id.)
Ignoring this admonition, Elmazaj sought to rent the property without approval, and,
in early January 2015, he and Plaintiff entered into a rental agreement. (Dkt. 21-2, at 6.)
On January 9, Plaintiff moved into the residence. (Id.) Before then, Plaintiff did not ask
Elmazaj if the property had a valid Certificate of Occupancy, nor did she contact Southgate.
(Id. at 6-7.) Her first contact with Southgate occurred on January 9 or 10, when she called
the Water Department to turn on the water. (Id. at 6.)
Then, in March 2015, raw sewage began building up in the home, so Plaintiff called
Southgate's Building Department to discuss the residence. (Id.) According to Plaintiff, this
call ended with a woman's stating that someone would call Plaintiff back; however, nobody
followed up. (Id.) Plaintiff subsequently made no attempt to contact Southgate again until
June 2015, when she complained of a musty smell coming from the basement. (Id.) At
that time, Southgate informed her that the property should not have been rented, and it
sent a plumbing inspector to inspect the property. (Id. at 10.) When the inspection ended,
the inspector informed Plaintiff that the property was going to be condemned. (Id.)
Around the same time, Plaintiff contacted an environmental group to test for molds
and other toxins. (Id.) That group conducted a test in July that revealed that the home
contained toxic mold. (Dkt. 25-4.) Following that revelation, Plaintiff confronted Elmazaj
about all she had learned. He told her the "City was full of crap and that he would handle
it." (Dkt. 21-2, at 10.) He then stopped communicating with Plaintiff. (Id. at 11.)

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Two months later, in September 2015, the news media began reporting on Plaintiff's
situation. (Dkt. 21-4.) Also in September, Plaintiff moved out of the residence and
contacted the Mayor's office regarding the property. (Dkt. 21-2, at 11.) The office told
Plaintiff how to obtain city records for the property, which she subsequently received. (Id.
at 12-13.) Soon after, on September 11, Southgate issued a civil citation against Elmazaj
for renting the property without a Certificate of Occupancy. (Dkt. 21-10.)
Meanwhile, Elmazaj sued Plaintiff in state court because she had stopped paying rent
after she moved out. The court ruled in Plaintiff's favor on September 18, and it ordered
the placement of red tags on the property to indicate that it was condemned. (Dkt. 21-5.)
A second tag was placed on the property on September 26, 2015, and a third was placed
on October 20, 2015. (Dkt. 21-7.) According to Plaintiff, Elmazaj was removing the tags.
(21-2, at 13.)
Plaintiff then commenced this action on November 10, 2015 by filing a complaint in
state court against Southgate, Elmazaj, H&E, and MK Painting, Inc. (Dkt. 1.) On January
25, 2016, the matter was removed to this Court based on the § 1983 claim against
Southgate. (Id.) Following a motion to remand by Plaintiff, this Court remanded the claims
against Elmazaj, H&E, and MK Painting to state court. (Dkt. 10.) As a result, only the §
1983 claim remains before the Court. (Id.)
At issue here is Southgate's motion for judgment on the pleadings under Federal Rule
of Civil Procedure 12(c) or, in the alternative, for summary judgment under Rule 56(a).
Both parties have submitted briefs and exhibits related to the motion, and the Court heard
arguments from both sides at a hearing on February 23, 2017. The Court now decides the
motion as follows.
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II.

Treatment of Southgate's Motion Purely as a Motion for Summary Judgment
If, on a motion under Rule 12(c), "matters outside the pleadings are presented to and

not excluded by the court, the motion must be treated as one for summary judgment[.]"
Fed. R. Civ. P. 12(d). And if a court coverts a motion into one for summary judgment, "[a]ll
parties must be given a reasonable opportunity to present all the material that is pertinent
to the motion." Id. Here, discovery is complete, and both parties have submitted briefing
and exhibits related to Southgate's motion for summary judgment. The Court also heard
oral argument regarding the propriety of summary judgment. As a result, the Court finds
that it is proper and equitable to consider Southgate's motion purely as one for summary
judgment. See Max Arnold & Sons, LLC v. W.L. Hailey & Co., 452 F.3d 494, 503 (6th Cir.
2006) ("[Rule 12(d)] requires only one action by the district court for the conversion to a
summary judgment motion to occur: failure to exclude presented outside evidence.");
Pierzynowski v. Police Dept. City of Detroit, 941 F. Supp. 633, 639-40 (E.D. Mich. 1996)
(ruling on converted motion where plaintiffs had opportunity to respond but never did so).
III.

Summary Judgment Standard
Summary judgment under Federal Rule of Civil Procedure 56(a) is proper when the

movant “shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." Id. When reviewing the record, “the court must
view the evidence in the light most favorable to the non-moving party and draw all
reasonable inferences in its favor.” U.S. SEC v. Sierra Brokerage Servs., Inc., 712 F.3d
321, 327 (6th Cir. 2013) (internal citation omitted). “[S]ummary judgment will not lie if the
dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable

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jury could return a verdict for the nonmoving party.” Id. (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).
IV.

Analysis
To establish a viable claim under 42 U.S.C. § 1983, a plaintiff "must satisfy two

elements: 1) the deprivation of a right secured by the Constitution or laws of the United
States and 2) the deprivation was caused by a person acting under color of state law."
Tahfs v. Proctor, 316 F.3d 584, 590 (6th Cir. 2003) (quoting Ellison v. Garbarino, 48 F.3d
192, 194 (6th Cir. 1995)). Where, as here, the plaintiff seeks to hold a municipality liable,
she must also establish that the constitutional violation resulted from an official municipal
policy or custom. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978).
While Plaintiff's Complaint does not specify the right underlying her § 1983 claim (Dkt.
1, at 18-19), her Response to Southgate's motion asserts that Southgate violated her
Fourteenth Amendment right to substantive due process. Government conduct violates
substantive due process only if it (1) "deprives an individual of a particular constitutional
guarantee" or (2) otherwise "shocks the conscience." In re City of Detroit, 841 F.3d 684,
699 (6th Cir. 2016) (internal citations omitted). If the plaintiff can establish the deprivation
of a "fundamental" right, then the government's conduct violates due process unless it "is
narrowly tailored to serve a compelling state interest." Washington v. Glucksberg, 521 U.S.
702, 721 (1997). But if the government's conduct neither implicates a "fundamental" right
nor "shocks the conscience," it satisfies due process so long as it passes "rational basis"
review. Does v. Munoz, 507 F.3d 961, 966 (6th Cir. 2007) ("We conduct rational-basis
review of [government actions] that do not implicate a plaintiff's fundamental rights.").

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Plaintiff's specific legal theory is not a model of clarity, but she appears to contend
either: (1) that Southgate infringed her fundamental right to "health" and "free[dom] from
bodily harm"; or (2) that Southgate was so "grossly negligent" that it shocks the
conscience.1 (Dkt. 25, at 12-15.) For the reasons that follow, the Court finds that
Southgate is entitled to summary judgment under either theory because the record does
not establish that Plaintiff was deprived of a constitutional right.2
A. There is No Fundamental Right to Health or Freedom from Bodily Harm
Plaintiff appears to argue that she has a fundamental liberty interest in her health and
freedom from bodily harm, which was deprived by Southgate. The Court finds that no such
fundamental interest exists. As the Supreme Court and the Sixth Circuit have noted, the
list of fundamental liberty interests is "short" and "seldom expanded." In re City of Detroit,
841 F.3d at 700 (internal citations omitted); see also County of Sacramento v. Lewis, 523
U.S. 833, 842 (1998) ("[W]e have always been reluctant to expand the concept of
substantive due process.") (internal citations and quotation marks omitted). "[I]n addition
to the specific freedoms protected by the Bill of Rights, the 'liberty' specially protected by

1

Unlike plaintiffs in similar cases, Plaintiff does not claim that she has a protected
property interest in the enforcement of municipal regulations. If she had, her claim would
likely still fail, for courts have routinely rejected such claims as a matter of law. See, e.g.,
Hopkins v. DeStefano, 2009 WL 4349535, at *7 (D. Conn. Nov. 25, 2009) (rejecting
substantive due process claim based on deprivation of property where plaintiffs alleged that
municipal defendants wrongfully issued certificates of occupancy); Assoko v. City of New
York, 539 F. Supp. 2d 728, 737-40 (S.D.N.Y. 2008) (rejecting substantive due process
claim based on deprivation of property where plaintiff alleged that municipality failed to
enforce housing regulations and wrongfully issued certificates of occupancy).
2

As a result of this finding, the Court need not and does not reach the issues of whether
someone acting under color of state law caused a constitutional deprivation, or whether
a deprivation occurred pursuant to Southgate's official custom or policy.
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the Due Process Clause includes the rights to marry, to have children, to direct the
education and upbringing of one's children, to marital privacy, to use contraception, to
bodily integrity, and to abortion." EJS Props., LLC v. City of Toledo, 698 F.3d 845, 860 (6th
Cir. 2012) (quoting Glucksberg, 521 U.S. at 720).
Based on Plaintiff's arguments and its own research, the Court has found no case
holding that a categorical interest in health or freedom from bodily harm is a fundamental
right. See MacNamara v. Council of Sussex Cnty., 738 F. Supp. 134, 142 (D. Del. 1990),
aff'd, 922 F.2d 832 (3d. Cir. 1990) (finding no support for the argument that there is a
"constitutionally protected liberty interest in a person's health"). Therefore, the Court
concludes that substantive due process doctrine does not currently rank Plaintiff's alleged
interest as fundamental.
Nor will the Court take the extraordinary step of announcing it as a new fundamental
interest here. Before conferring fundamental status upon a previously unrecognized right,
the Supreme Court requires "a careful description of the asserted fundamental liberty
interest," and a demonstration that the "interest is objectively, deeply rooted in this Nation's
history and tradition, and implicit in the concept of ordered liberty, such that neither liberty
nor justice would exist if [it were] sacrificed." Glucksberg, 521 U.S. at 720-21 (internal
citations and quotation marks omitted). Plaintiff has not made the requisite showing.
First, Plaintiff has not provided a "careful description" of the right. Glucksberg, 521
U.S. at 720. She only asserts broadly that she has an interest in her "health" and a "right
to be free from bodily harm." (Dkt. 25, at 14.) Second, Plaintiff has not adduced any
evidence that her alleged right is rooted in our nation's traditions or implicit in the concept
of ordered liberty, and the Court has found cases indicating the opposite. Indeed,
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whenever federal courts have faced assertions of fundamental rights to a "healthful
environment" or to freedom from harmful contaminants, they have invariably rejected those
claims.3 See, e.g., Ely v. Velde, 451 F.2d 1130, 1139 (4th Cir. 1971) (holding that there
is no constitutional right to a healthful environment); SF Chapter of A. Philip Randolph Inst.
v. U.S. EPA, 2008 WL 859985, at *7 (N.D. Cal. Mar. 28, 2008) (rejecting asserted rights
to be free from climate change pollution and to have a certain quality of life); In re Agent
Orange Prod. Liab. Litig., 475 F. Supp. 928, 934 (E.D.N.Y. 1979) ("[T]here is not yet any
constitutional right ... to be free of the allegedly toxic chemicals involved in this litigation.");
Pinkney v. Ohio EPA, 375 F. Supp. 305, 310 (N.D. Ohio 1974) ("[T]he Court is unable to
rule that the right to a healthful environment is a fundamental right under the Constitution.");
Tanner v. Armco Steel Corp., 340 F. Supp. 532, 537 (S.D. Tex. 1972) ("[N]o legally
enforceable right to a healthful environment, giving rise to an action for damages, is
guaranteed by the Fourteenth Amendment or any other provision of the Federal
Constitution."). In light of the foregoing, the Court concludes that the due process clause
does not guarantee a fundamental right to health or freedom from bodily harm. Southgate
is therefore entitled to summary judgment on the issue of whether Plaintiff was deprived
of a fundamental liberty interest.
B. Southgate's Alleged Conduct Does Not "Shock the Conscience"
Plaintiff next appears to argue that Southgate was so "grossly negligent" that it
"shocks the conscience." According to the Supreme Court, government conduct shocks

3

The only arguable exception is Juliana v. United States, where the District of Oregon
recently announced a very narrow right to "a climate system capable of sustaining human
life." 2016 WL 6661146, at *16 (D. Or. Nov. 10, 2016).
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the conscience if it "violates the 'decencies of civilized conduct.'" Lewis, 523 U.S. at 846
(quoting Rochin v. California, 342 U.S. 165, 173 (1952)). Whether particular conduct
shocks the conscience depends on the factual circumstances of the case.4 See Lewis, 523
U.S. at 851-53. "Merely negligent tortious conduct is categorically beneath constitutional
due process, but conduct on the other extreme end of the culpability spectrum, that which
is 'intended to injure' without any justifiable government interest, most clearly rises to the
'conscience-shocking' level." Range v. Douglas, 763 F.3d 573, 590 (6th Cir. 2014) (internal
citations omitted). However, "recklessness or gross recklessness, such as deliberate
indifference, is a 'matter for closer calls.'" Id. (internal citations omitted). In such cases,
the Sixth Circuit instructs courts to consider the following: "1) the voluntariness of the
plaintiff's relationship with the government, 2) whether there was time for the government
actor to deliberate, and 3) whether the government actor was pursuing a legitimate
governmental purpose." Id. (citing Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ., 542
F.3d 529, 536 (6th Cir. 2008)).
Reading the record in the light most favorable to Plaintiff, the Court concludes that no
reasonable jury could find that Southgate's conduct shocks the conscience. First of all, two
of the three considerations enunciated by the Sixth Circuit weigh unequivocally against
Plaintiff's claim. As to the voluntariness of Plaintiff's relationship with Southgate, Plaintiff

4

Sixth Circuit precedent is "somewhat conflicted as to whether an underlying
constitutionally-protected right must be established in order for a government action to
violate one's rights by shocking the conscience." Range v. Douglas, 763 F.3d 573, 589
(6th Cir. 2014) (citing EJS Props., 698 F.3d at 861-62). But resolving that conflict is
unnecessary here. Regardless of whether Southgate's conduct implicates an underlying
constitutionally-protected right, no reasonable jury could find "conscience-shocking"
behavior based on the evidence adduced.
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elected to rent a home in Southgate and subject herself to its housing authority. Her opting
into that relationship significantly weakens her claim. Hunt, 842 F.3d at 536 (noting that
claims proceeding under the "shocks the conscience" theory "are particularly unlikely to
succeed" if the relationship with the government is voluntary). The third consideration,
whether Southgate's conduct pursued a legitimate government purpose, also undermines
Plaintiff's case. Southgate has a legitimate interest in conserving and allocating limited
resources, and its decision not to respond immediately to each complaint advances that
interest.

United States v. Collins, 683 F.3d 697, 704 (6th Cir. 2012) (identifying a

"legitimate government interest in the efficient allocation of government resources"); Equal.
Found. of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289, 301 (6th Cir. 1997)
(holding that city had "valid" interest in conserving financial resources).
That leaves only one consideration--the time that Southgate had to deliberate. Taking
Plaintiff's allegations as true, there were three periods when Southgate remained inactive
despite awareness of issues with the residence: (1) when Southgate did not investigate
Elmazaj's use of the property after it denied him the Certificate of Occupancy; (2) when the
Building Department failed to call Plaintiff back after she complained about the raw sewage;
and (3) when Southgate took three months after the plumbing inspector visited the property
to initiate condemnation. But, even with all reasonable inferences taken in Plaintiff's favor,
these facts do not establish "conscience-shocking" behavior. See Range, 763 F.3d at 590
(rejecting substantive due process claim where defendants had "years ... to appreciate
whatever risks they could glean from the alleged knowledge that [a co-worker] was drinking
and having sex with live women at the [county] morgue").

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Indeed, to find for Plaintiff, a jury would have to conclude that Southgate violated "the
decencies of civilized conduct" by failing to monitor a home denied a Certificate of
Occupancy, neglecting to follow up on an isolated complaint about plumbing, and taking
three months after an inspection to initiate condemnation. Lewis, 523 U.S. at 846. No
reasonable jury could make such a finding. And the Court believes it would be absurd to
conclude otherwise when federal courts have held that actively issuing undeserved building
permits--conduct more egregious than the alleged misconduct here--did not violate
substantive due process. See Rymer v. Douglas Cnty., 764 F.2d 796, 803 (11th Cir. 1985)
(finding that issuing building permit where city knew or should have known that land could
not accommodate septic tank system did not rise "to the stature of a constitutional
violation"); Seabrook v. City of New York, 509 F. Supp. 2d 393, 405 (S.D.N.Y. 2007)
(finding that wrongfully issuing certificates of occupancy "does not cause an injury
attributable to the government that rises to a constitutional level").
Furthermore, as the Sixth Circuit has stated, the "purpose of the time element is not
to transform any reckless action from a tort to conscience-shocking behavior simply
because the government actor had time to appreciate any risk of harm." See Range, 763
F.3d at 590 (emphasis in original). There must be evidence that "the officials knew of facts
from which they could infer a 'substantial risk of serious harm,' that they did infer it, and that
they acted with indifference 'toward the individual's rights.'" Id. at 591 (internal citations
omitted). Here, the record contains no evidence that any individual Southgate official
subjectively inferred a substantial risk of serious harm and ignored that risk. Therefore, the
Court concludes that no reasonable jury could find that Southgate's conduct shocks the
conscience.
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C. Southgate's Alleged Misconduct Passes Rational Basis Review
Given that Southgate's alleged failure to enforce its municipal ordinances neither
implicates a fundamental right nor shocks the conscience, substantive due process
requires only that its conduct pass rational basis review. Shoemaker v. City of Howell, 795
F.3d 553, 567 (6th Cir. 2015). Under rational basis review, the question is whether
Southgate's conduct is "rationally related to legitimate government interests." Glucksberg,
521 U.S. at 728. This standard is "highly deferential," and courts find that conduct fails
rational basis review "only in rare or exceptional circumstances." Doe v. Michigan Dept.
of State Police, 490 F.3d 491, 501 (6th Cir. 2007). The purported rational basis may be
based on "rational speculation unsupported by evidence or empirical data" and need not
have a foundation in the record. Midkiff v. Adams Cnty. Reg'l Water Dist., 409 F.3d 758,
770 (6th Cir. 2005) (internal citations omitted). And the burden falls on the plaintiff to
establish that the defendant's action is not rationally related to a legitimate interest. Valot
v. Southeast Local Sch. Dist. Bd. of Educ., 107 F.3d 1220, 1228 (6th Cir. 1997).
Here, Plaintiff has not carried her burden of establishing that Southgate's conduct fails
rational basis review.

As stated above, Southgate has a legitimate interest in not

responding immediately to each complaint it receives so that it can conserve and allocate
its limited resources. Collins, 683 F.3d at 704. And Plaintiff has not presented any
evidence suggesting that Southgate's alleged delays in responding to her complaints and
inquiries were not relationally related to that legitimate interest. Therefore, the Court finds
that Southgate's conduct passes rational basis review, leaving Plaintiff without any avenue
for sustaining a substantive due process claim.
IV.

Conclusion
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For the reasons stated above, the Court finds that the record does not support a
finding that Plaintiff was deprived of substantive due process. Plaintiff's § 1983 thus fails
as a matter of law, and Southgate's motion for summary judgment is GRANTED. Given
that the Court remanded the rest of Plaintiff's claims, this case is also DISMISSED.
SO ORDERED.

s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: February 28, 2017
I hereby certify that a copy of the foregoing document was served upon counsel of record
on February 28, 2017, by electronic and/or ordinary mail.
s/Carol J. Bethel
Case Manager

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