McMillian et al v. Richard D. Snyder et al

Filing 136

OPINION AND ORDER granting motions to dismiss. Signed by District Judge John Corbett O'Meara. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MYIA MCMILLIAN, et al.,
Plaintiffs,
Case No. 16-10796
v.
Hon. John Corbett O’Meara
GOVERNOR RICHARD DALE
SNYDER, et al.,
Defendants.
___________________________/

OPINION AND ORDER
Before the court are several motions to dismiss Plaintiffs’ first amended
class action complaint. For the reasons explained below, Defendants’ motions to
dismiss are granted.
BACKGROUND FACTS
This action arises out of the contamination of drinking water in Flint,
Michigan. Plaintiffs allege several causes of action against multiple defendants,
including City of Flint and State of Michigan officials and engineering firms that
provided services to the City. Plaintiffs’ first amended complaint alleges the
following causes of action: Count I, violation of the Safe Drinking Water Act;
Count II, violation of the Safe Drinking Water Act; Count III, violation of 42

U.S.C. § 1983, substantive due process, state created danger; Count IV, violation
of § 1983, substantive due process, bodily integrity; Count V, negligence; Count
VI, intentional infliction of emotional distress; Count VII, negligent infliction of
emotional distress; Count VIII, inverse condemnation under Michigan
Constitution; Count IX, nuisance; Count X, trespass; Count XI, unjust enrichment;
Count XII, strict liability; Count XIII, gross negligence; Count XIV, “proprietary
function” in avoidance of governmental immunity; and Count XV, professional
negligence. Defendants seek dismissal of the amended complaint.
LAW AND ANALYSIS
I.

Preclusion of § 1983 Claims
As this court has determined in two other Flint water contamination cases,

Plaintiffs’ constitutional claims brought pursuant to 42 U.S.C. § 1983 are
precluded by the Safe Drinking Water Act. See Boler v. Earley, No. 16-10323,
Docket No. 56 (E.D. Mich., O’Meara, J.); Mays v. Snyder, No. 15-14002, Docket
No. 196 (E.D. Mich., O’Meara, J.). Plaintiffs’ § 1983 claims are indistinguishable
from the claims this court found to be precluded by the SDWA in Boler and Mays.
Accordingly, the court will dismiss Plaintiffs’ § 1983 claims.
II.

Safe Drinking Water Act Claims
Defendants contend that Plaintiffs’ SDWA claims should be dismissed
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because they have not complied with the statute’s jurisdictional requirements. The
SDWA provides:
No civil action may be commenced-(1) under subsection (a)(1) of this section respecting
violation of a requirement prescribed by or under this
subchapter–
(A) prior to sixty days after the plaintiff has given notice
of such violation (i) to the Administrator, (ii) to any
alleged violator of such requirement and (iii) to the State
in which the violation occurs. . . .

42 U.S.C. § 300j-8(b)(1)(A). This sixty-day notice provision was modeled after §
304 of the Clean Air Amendments of 1970. See Hallstrom v. Tillamook Cty., 493
U.S. 20, 23 & n.1 (1989). A number of other federal statues contain notice
provisions also patterned after § 304, including the Resource Conservation and
Recovery Act of 1976 (“RCRA”). Id. at 22-23. In interpreting RCRA’s notice
provision, which is virtually identical to the SDWA’s notice provision, the
Supreme Court concluded that the “language of this provision could not be clearer.
. . . Under a literal reading of the statute compliance with the 60-day notice
provision is mandatory, not optional, condition precedent for suit.” Id. at 26. The
Court directed that when a plaintiff fails to comply with notice provision, “the
district court must dismiss the action as barred by the terms of the statute.” Id. at
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33.
Plaintiffs here have not complied with the SDWA’s notice requirement.
They argue, however, that the plaintiffs in a separate action, Concerned Pastors for
Social Action v. Khouri, No. 16-10277, provided notice regarding the same
violations and that duplicate notice should not be required. Plaintiffs provide no
authority for the proposition that notice provided by separate plaintiffs in a
separate suit serves to excuse the statutory requirement. In the cases cited by
Plaintiffs, at least one plaintiff named in the action provided notice. See, e.g.,
Environmental Defense Fund v. Tidwell, 837 F. Supp. 1344, 1352-53 (E.D.N.C.
1992). None of the Plaintiffs named in this case have provided notice. Consistent
with the statute and Hallstrom, the court must dismiss Plaintiffs’ SDWA claims.
III.

State Claims
The court will decline to exercise supplemental jurisdiction over Plaintiffs’

claims arising under state law. 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)).
ORDER
Accordingly, IT IS HEREBY ORDERED that Defendants’ motions to
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dismiss Plaintiffs’ complaint are GRANTED, consistent with this opinion and
order. Plaintiff’s complaint is DISMISSED.

s/John Corbett O’Meara
United States District Judge
Date: February 7, 2017

I hereby certify that a copy of the foregoing document was served upon
counsel of record on this date, February 7, 2017, using the ECF system.

s/William Barkholz
Case Manager

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