Johnson v. Michigan Department of Health and Human Services et al

Filing 57

OPINION AND ORDER granting in part and denying in part 46 Motion to Dismiss. Signed by District Judge Sean F. Cox. (EVra)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SHAYLA JOHNSON,
Case No. 23-cv-11039

Plaintiff,
v.

Hon. Sean F. Cox
United States District Court Judge

M.W. and A.W.,
Defendants.
___________________________________/

OPINION & ORDER
GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION
TO DISMISS (ECF No. 46)
In this civil action, Shayla Johnson pleads that the State of Michigan placed her daughter,
M.S., with Defendants M.W. and A.W. as foster parents and that Defendants failed to prevent
M.S.’s accidental death. Johnson seeks to recover from Defendants under state common law and
under 42 U.S.C. §§ 1981 and 1983 in her individual capacity and as the personal representative
of M.S.’s estate (the “Estate”). Defendants now move to dismiss.
Johnson lacks standing to maintain this action on her own behalf, so the Court shall
dismiss any claims that Johnson brings in her individual capacity. The Court shall also dismiss
the Estate’s state-law claims because Defendants are entitled to parental immunity and the
Estate’s § 1983 claim because Defendants parents were not state actors. But the Estate’s § 1981
claim survives because it pleads facts which, if true, would establish that Defendants interfered
with M.S.’s contractual rights on account of her race.
BACKGROUND
M.S. was a black child whom the State of Michigan placed with foster parents,
Defendants M.W. and A.W., in 2019. In 2021 when M.S. was two years old, a nightstand fell on

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her while she was taking a nap in Defendants’ home and she suffocated to death. This action
against Defendants by M.S.’s biological mother, Shayla Johnson, in her individual capacity and
on behalf of the Estate, followed. The operative (amended) complaint seeks damages for
Defendants’ alleged negligence (Counts I and II) and violations of 42 U.S.C. §§ 1983 (Count III)
and 1981 (Count IV) and additionally states that Johnson brings this action “[i]ndividually.”1
(ECF No. 34, PageID.219). Defendants now move to dismiss.
Johnson filed the Complaint through counsel, but that counsel later moved to withdraw.
Defendants then filed the instant motion to dismiss, and the Court granted Johnson’s counsel’s
motion to withdraw. The Court also ordered Johnson to obtain new counsel on or before January
28, 2025, and held the instant motion in abeyance until that date. Johnson has yet to obtain new
counsel and is therefore pro se in this action. The Court also ordered Johnson to file any
response to the instant motion on or before February 21, 2025, but Johnson never filed any
response. The Court now resolves the instant motion without oral argument pursuant to Local
Rule 7.1(f)(2).
STANDARD OF REVIEW
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.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). And “[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.

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The original complaint brought claims against the State of Michigan, the Michigan
Department of Health and Human Services, and several state officials, but the Court dismissed
those claims. (ECF No. 20).
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ANALYSIS
I.

Johnson’s Claims
As a preliminary matter, Johnson pleads that she brings this action on behalf of the Estate

and herself. But Johnson does not allege facts which, if true, would show that she suffered any
injuries in fact. Johnson alleges that Defendants breached common-law duties they owed to
M.S. (Counts I and II); violated M.S.’s constitutional rights (Count III); and interfered with
M.S.’s contractual rights on account of her race (Count IV). But these allegations only concern
violations of M.S.’s legally protected interests, and not Johnson’s. It follows that Johnson lacks
standing to maintain this action in her individual capacity. See Lujan v. Defenders of Wildlife,
504 U.S. 555, 560 (1992) (explaining that “the irreducible constitutional minimum of standing”
requires “an ‘injury in fact,’” i.e., “an invasion of a legally protected interest”).
II.

The Estate’s § 1983 Claim
To prevail on its § 1983 claim (Count III), the Estate must prove that Defendants

“deprived [M.S.] of a right, privilege, or immunity secured by the Constitution or laws of the
United States” while they were “acting under color of state law.” Smith v. Williams-Ash, 520
F.3d 596, 599 (6th Cir. 2008). The Estate claims that Defendants violated M.S.’s rights to be
free from the infliction of unnecessary harm in a state-regulated foster home and to equal
protection of the laws. But the Estate alleges no facts which, if true, would show that Defendants
acted under color of state law.
Whether Defendants acted under color of state law turns on whether their alleged
misconduct “may be ‘fairly attributable to the state.’” Wolotsky v. Huhn, 960 F.2d 1331, 1335
(6th Cir. 1992) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)). But courts in
this Circuit have repeatedly held that physical injuries to foster children caused by their foster
parents are not fairly attributable to the state under § 1983. See, e.g., Brown v. Hatch, 984 F.
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Supp. 2d 700, 707–09 (E.D. Mich. 2013); Abessolo v. Smith, No. 11-cv-680, 2012 WL 668773,
at *7 (S.D. Ohio Feb. 29, 2012); Lintz v. Skipski, 807 F. Supp. 1299, 1305–07 (W.D. Mich.
1992); accord Leshko v. Servis, 423 F.3d 337 (3d Cir. 2005); Milburn ex rel. Milburn v. Anne
Arundel Cnty. Dep’t of Soc. Servs., 871 F.2d 474 (4th Cir. 1989). The Estate accordingly fails to
plead a § 1983 claim.
III.

The Estate’s § 1981 Claim
The Estate brings a § 1981 claim (Count IV), and that statute states in relevant part that

“[a]ll persons” shall “have the same right” of “enjoyment of all benefits, privileges, terms, and
conditions of [a] contractual relationship” that “is enjoyed by white citizens.” § 1981(a), (b).
And § 1981 prohibits “nongovernmental discrimination” as well as “impairment under color of
State law.” § 1981(c). Here, the Estate alleges that M.S. “was a party in and/or beneficiary of[]
a contractual relationship between the Federal government and Defendants A.W. and M.W. for
the purpose of her placement in foster care.” (ECF No. 34, PageID.230). The Estate further
alleges that Defendants denied M.S. the benefits of this contract on account of her race.2
Generally, a plaintiff “must initially identify an impaired ‘contractual relationship’ under
which the plaintiff has rights” to plead a § 1981 claim. Domino’s Pizza, 546 U.S. 470, 470
(2006) (citation omitted) (quoting § 1981(b)). Here, the Estate identifies such a contractual
relationship: a foster-care contract between Defendants and the Federal Government that M.S.
was a party to or beneficiary of. Defendants nonetheless maintain that the Estate fails to plead
the contractual-relationship element of its § 1981 claim. As support for their position,
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The Estate tries to make out the discrimination element of its § 1981 claim by alleging
facts from which a jury could infer discrimination, and therefore McDonald-Douglas’s burdenshifting framework controls whether the Estate pleads that element. See Christian v. Wal-Mart
Stores, Inc., 252 F.3d 862, 868 (6th Cir. 2001). But the Court need not apply McDonald-Douglas
to resolve the instant motion because Defendants only challenge whether the Estate pleads the
contractual-relationship element of its § 1981 claim.
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Defendants point to the facts that a plaintiff must prove to prevail “[i]n a § 1981 commercial
establishment case,” namely, that the plaintiff “sought to make or enforce a contract for services
ordinarily provided by the defendant.” Christian v. Wal-Mart Stores, Inc., 252 F.3d 862, 872
(6th Cir. 2001). Defendants conclude that the Estate’s § 1981 claim fails because it does not
plead facts showing that M.W. “sought to make or enforce a contract for services” that
Defendants “ordinarily provided.” (ECF No. 46, PageID.296).
But this is not a commercial establishment case; this is a case about foster-care services.
Taking the Estate’s allegations as true, Defendants contracted with the Federal Government to
provide childcare services to M.S., M.S. was a party to or beneficiary of that contract, and
Defendants impaired M.S.’s rights under that contract on account of her race. This conduct
violates § 1981’s plain text, and therefore the Estate ostensibly pleads a § 1981 claim.
Defendants disagree and point to House of Providence v. Meyers, which involved a § 1981 claim
stemming from the defendants’ alleged interference with the plaintiff’s efforts to construct and
operate a foster home. 458 F. Supp. 3d 621 (E.D. Mich. 2020). This Court dismissed the
Meyers plaintiff’s § 1981 claim because it “d[id] not rely on any impaired contractual
relationships.” Id. at 632. Here, however, the Estate alleges that Defendants impaired a contract
under which M.S. had rights. Defendants’ challenge to the Estate’s § 1981 claim fails.
IV.

The Estate’s Tort Claims
The Estate advances three theories of state-law tort liability. First, that Defendants failed

to reasonably mitigate the risk that M.S. would be injured by a dangerous condition on their land
in breach of the duty they owed to M.S. as land possessors. Second, that Defendants failed to
maintain property “security measures” in breach of the duty that they owed to M.S. as the owners

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of the “foster care residence providing for [M.S.]’s care.”3 (ECF No. 34, PageID.224). And
third, that Defendants failed to adequately supervise M.S. while she was napping in breach of the
duty that they owed to M.S. as the adults responsible for her wellbeing. The Estate concludes
that these breaches were negligent (Count I), that they caused M.S.’s death, and that the Estate is
entitled to damages.
Defendants argue that they are entitled to parental immunity from liability for these
breaches. As relevant to this argument, the Michigan Supreme Court in Plumley v. Klein
partially abrogated the common-law rule that children cannot recover from their parents in tort.
199 N.W.2d 169 (Mich. 1972). Plumley held that “[a] child may maintain a lawsuit against his
parent for injuries suffered as a result of the alleged ordinary negligence of the parent” unless
“the alleged negligent act involves an exercise of reasonable parental authority over the child” or
“the alleged negligent act involves an exercise of reasonable parental discretion with respect to
the provision of food, clothing, housing, medical and dental services, and other care.” Id. at
172–73. The Michigan legislature has extended these parental-immunity principles to foster
parents, Mich. Comp. Laws Ann. § 722.163 (West 2019), and Michigan courts recognize that
“the first exception to the abrogation of parental immunity, the ‘parental authority’ exception,
does apply to bar a claim of negligent parental supervision.” McCallister v. Sun Valley Pools,
Inc., 298 N.W.2d 687, 691 (Mich. Ct. App. 1980).
Here, the gravamen of the Estate’s tort claims is negligent supervision. The Estate pleads
that Defendants were in loco parentis with respect to M.S. and that M.S. would not have been
fatally injured while taking a nap if Defendants had properly supervised her. See, e.g., Wright v.

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Whether and to what extent the Estate’s second theory of tort liability implicates the duty
it alleges Defendants owed to M.S. as possessors of land is unclear.
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Wright, 351 N.W.2d 868, 869, 872 (Mich. Ct. App. 1984) (per curiam) (holding that “the
gravamen of the negligence was the failure of the parents to adequately warn or take steps to
prevent potential injury” where the seven-year-old party in interest had “accidentally shot herself
with a revolver she found in an automobile”); McCallister, 298 N.W.2d at 689, 691 (holding that
“[t]he gravamen of plaintiff’s pleadings can only be construed as an action for negligent parental
supervision” where the fifteen-year-old plaintiff alleged that he “dove into the deep end of the
family swimming pool” and “suffered permanent paralysis from the neck down”). Defendants
are accordingly entitled to parental immunity from the Estate’s negligence claims.
The Estate also advances a separate claim for gross negligence (Count II). In Michigan,
“[t]he term ‘gross negligence’ prescribes no standard of conduct” because “[t]here are no degrees
of negligence” in Michigan. Grabowski v. Seyler, 246 N.W. 189, 190 (Mich. 1933). Rather, a
plaintiff who proves gross negligence overcomes a defendant’s claim that the plaintiff’s
contributory negligence bars his or her recovery in tort. See Graves v. Dachille, 43 N.W.2d 64
(Mich. 1950). Because the Estate cannot recover for Defendants’ negligent supervision in the
first instance, whether Defendants were grossly negligent is irrelevant.
CONCLUSION & ORDER
Johnson brings claims against Defendants, but she lacks standing for those claims. The
Estate also brings claims against Defendants, but Defendants were not state actors under § 1983
and they are entitled to parental immunity for failing to supervise M.S. But the Estate pleads
facts which, if true, would show that Defendants violated M.S.’s contractual rights on account of
her race. Accordingly, IT IS ORDERED that Defendants’ motion to dismiss (ECF No. 46) is
GRANTED to the extent that it seeks dismissal of the Estate’s negligence (Counts I and II) and
§ 1983 (Count III) claims with prejudice and is DENIED in remaining part. IT IS FURTHER

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ORDERED that any claims Johnson brings in her individual capacity are DISMISSED without
prejudice.
IT IS SO ORDERED.
s/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: March 7, 2025

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