Mays, individually and as next friend of three minor children et al v. Snyder et al

Filing 196

OPINION AND ORDER granting 122 Motion to Dismiss; granting 135 Motion to Dismiss; granting 136 Motion to Dismiss; granting 137 Motion to Dismiss; granting 138 Motion to Dismiss; granting 142 Motion to Dismiss. Signed by District Judge John Corbett O'Meara. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MELISSA MAYS, et al.,
Plaintiffs,
Case No. 15-14002
v.
Hon. John Corbett O’Meara
GOVERNOR RICK SNYDER, et al.,
Defendants.
_________________________________/

OPINION AND ORDER
Before the court are six motions to dismiss Plaintiffs’ amended complaint
filed by Defendants, which have been fully briefed. For the reasons explained
below, Defendants’ motions to dismiss are granted.
BACKGROUND FACTS
This case arises out of the contamination of drinking water in Flint,
Michigan. Plaintiffs intend to represent a class of Flint residents and others who
used Flint water from April 25, 2014, to the present. Defendants are Michigan
Governor Rick Snyder, the State of Michigan, Daniel Wyant, Nick Lyon, Andy
Dillon, Liane Shekter Smith, Adam Rosenthal, Stephen Busch, Patrick Cook,
Michael Prysby, Bradley Wurfel, Jeff Wright, Edward Kurtz, Darnell Earley,

Gerald Ambrose, Dayne Walling, Howard Croft, Michael Glasgow, Daugherty
Johnson, and the City of Flint.
Plaintiffs’ amended complaint alleges the following causes of action: Count
I, substantive due process/state created danger, 42 U.S.C. § 1983; Count II,
substantive due process/bodily integrity, § 1983; Count III, equal protection based
upon race, § 1983; Count IV, equal protection based upon wealth, § 1983; Count
V, conspiracy, § 1985; and Count VI, violation of the public service provisions of
the Elliott-Larsen Civil Rights Act. Plaintiffs allege that “Defendants caused a
public health crisis by exposing Plaintiffs to contaminated water.” Amended
Compl. at ¶ 1. Defendants have moved to dismiss Plaintiffs’ complaint on various
grounds, pursuant to Fed. R. Civ. P. 12(b)(1) and (6).
LAW AND ANALYSIS
I.

Preclusion of § 1983 Claims
In Boler v. Earley, No. 16-10323, Docket No. 56 (E.D. Mich., O’Meara, J.),

another case involving Flint water contamination, the court concluded that the
plaintiffs’ constitutional claims brought pursuant to § 1983 were precluded by the
Safe Drinking Water Act (“SDWA”). Defendants urge the same result here,
contending that if Plaintiffs’ § 1983 claims are not viable, Plaintiffs lack a federal
cause of action and this court should dismiss Plaintiffs’ complaint.
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In determining whether a statute precludes suit under § 1983, “[t]he crucial
consideration is what Congress intended.” Smith v. Robinson, 468 U.S. 992, 1012
(1984). “When 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 Cty. Sewerage Authority v. National
Sea Clammers Assn., 453 U.S. 1, 20 (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 Matoon v. Pittsfield, 980 F.2d
1 (1st Cir. 1992), found that the Safe Drinking Water Act precluded other federal
remedies 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
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preempted by the SDWA, because “Congress occupied the field of public drinking
water regulation with its enactment of the SDWA.” Matoon, 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 water systems to an expert regulatory agency
rather than the courts.” Matoon, 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 §
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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.” Matoon, 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 Sea Clammers,
453 U.S. at 21 (FWPCA and MPRSA supplant remedies under § 1983); City of
Rancho Palos Verdes v. Abrams, 544 U.S. 113 (2005) (remedial scheme in
Telecommunications Act precludes § 1983 action); Smith v. Robinson, 468 U.S.
992 (1984) (Education of Handicapped Act provides exclusive remedy even when
plaintiffs assert constitutional claims); Zombro v. Baltimore City Police Dept., 868
F.2d 1364 (4th Cir.), cert. denied, 493 U.S. 850 (1989) (ADEA, not § 1983, is
exclusive remedy for age discrimination claims under federal law).
The essence of Plaintiffs’ constitutional claims is that Plaintiffs were injured
as a result of exposure to contaminated water. See Amended Compl. at ¶¶ 122,
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138, 146, 154, 170, 186. 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). Indeed, the safety of public water
systems is a field occupied by the SDWA. Matoon, 980 F.2d at 4. Accordingly,
consistent with its decision in Boler, the court concludes that Plaintiffs’ federal
remedy is under the SDWA, regardless of how their legal theories are characterized
in the complaint.
Plaintiffs argue that their § 1983 claims are not precluded, relying on
Charvat v. Eastern Ohio Regional Wastewater Authority, 246 F.3d 607 (6th Cir.
2001) and Fitzgerald v. Barnstable School Comm., 555 U.S. 246 (2009). Charvat
and Fitzgerald are distinguishable, however. In Fitzgerald, the Supreme Court
determined that Title IX did not preclude an equal protection claim alleging
unconstitutional gender discrimination in schools. The Court found that, unlike the
statutes at issue in Sea Clammers, Smith, and Rancho Palos Verdes, Title IX did
not provide a carefully tailored private enforcement mechanism. The Court noted
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that Title IX’s remedies (withdrawal of federal funds and an implied cause of
action) “stand in stark contract to the ‘unusually elaborate,’ ‘carefully tailored,’
and ‘restrictive’ enforcement schemes of the statutes at issue in Sea Clammers,
Smith, and Rancho Palos Verdes.” Fitzgerald, 555 U.S. at 255. Like those statutes,
and unlike Title IX, the SDWA “establishes an elaborate enforcement scheme”
with respect to safe drinking water. Allowing parallel § 1983 claims to proceed
would “circumvent” the SDWA’s procedures and would be “inconsistent with
Congress’ carefully tailored scheme.” Id. at 254-55 (citation omitted).
In Charvat, the Sixth Circuit concluded that the SDWA’s whistleblower
provisions did not preclude the plaintiff from bringing suit under § 1983 for a First
Amendment violation. The whistleblower provisions of the SDWA, however, do
not contain the same “elaborate enforcement scheme” as the substantive provisions
of the statute. Rather, the whistleblower provisions provide for an administrative
remedy, which “is not necessarily sufficient to demonstrate Congress intended to
foreclose a § 1983 remedy.” Charvat, 246 F.3d at 614-15 (citation omitted).
The court is mindful that it is not to “lightly conclude that Congress intended
to preclude reliance on § 1983 as a remedy for a substantial equal protection
claim.” Smith, 468 U.S. at 1012. The elaborate enforcement scheme of the
SDWA, however, leads it to conclude that § 1983 claims seeking to remedy unsafe
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drinking water would be “inconsistent with Congress’ carefully tailored scheme.”
Id. See also Hildebrand v. Allegheny Cty., 757 F.3d 99, (3d Cir. 2014) (“The
Supreme Court has consistently indicated that the comprehensiveness of a statute’s
remedial scheme is the primary factor in determining congressional intent.”).
Without viable constitutional claims, Plaintiffs’ conspiracy claim under §
1985(3) based upon the same conduct also fails. See Beztak Land Co. v. City of
Detroit, 298 F.3d 559, 568-69 (6th Cir. 2002). The court will dismiss Plaintiffs’
claims under §§ 1983 and 1985.
II.

ELCRA Claim
The court will decline to exercise supplemental jurisdiction over Plaintiffs’

remaining claim, which arises under Michigan’s Elliott-Larsen Civil Rights Act.
Generally, “if the federal claims are dismissed before trial, . . . the state claims
should be dismissed as well.” Taylor v. First of Am. Bank-Wayne, 973 F.2d 1284,
1287 (6th Cir. 1992) (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 726
(1966)).

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ORDER
Accordingly, IT IS HEREBY ORDERED that Defendants’ motions to
dismiss are GRANTED and Plaintiffs’ complaint is DISMISSED.

s/John Corbett O’Meara
United States District Judge
Date: February 2, 2017

I hereby certify that a copy of the foregoing document was served upon
counsel of record on this date, February 2, 2017, using the ECF system.

s/William Barkholz
Case Manager

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