Bacon v. Lockwood Andrews & Newnam, PC et al
Filing
113
OPINION AND ORDER granting in part and denying in part 89 Motion to Dismiss; granting in part and denying in part 90 Motion to Dismiss; granting in part and denying in part 91 Motion to Dismiss; granting in part and denying in part 93 Motion to Dismiss. Signed by District Judge Judith E. Levy. (WBar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
In re Flint Water Cases.
________________________________/
Judith E. Levy
United States District Judge
This Order Relates To:
Bacon v. Snyder, et al.
Case No. 18-10348
________________________________/
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS’ MOTIONS TO DISMISS PLAINTIFF’S
SHORT-FORM COMPLAINT [89, 90, 91, 93]
This is one of the many cases that are collectively referred to as the
Flint Water Cases. Plaintiffs allege that Defendants, a combination of
private and public individuals and entities, set in motion a chain of
events that led to bacteria and lead leaching into the City of Flint’s
drinking water. Plaintiffs in the various Flint Water Cases claim that
Defendants subsequently concealed, ignored, or downplayed the risks
that arose from their conduct, causing them serious harm. These
plaintiffs contend that the impact of what has since been called the Flint
Water Crisis is still with them and continues to cause them problems.
The Plaintiff in this particular case is Deborah Sapolin, personal
representative of the Estate of Margaret A. Bacon.1 In previous Flint
Water decisions, the Court has set forth descriptions of each Defendant
in these cases, and adopts those descriptions as if fully set forth here. See
In re Flint Water Cases, 384 F. Supp. 3d 802, 824–825 (E.D. Mich. 2019).
Before the Court are four motions to dismiss. On June 16, 2020,
Defendants Lockwood, Andrews & Newnam, Inc. and Lockwood,
Andrews & Newnam, P.C. (together, “LAN”) moved to dismiss Plaintiff’s
complaint. (ECF No. 89.) Defendant Leo A. Daly Company (“LAD”) also
moved to dismiss on the same day. (ECF No. 90.) On June 17, 2020, the
Michigan Department of Environmental Quality (“MDEQ”) individual
Defendants Stephen Busch, Patrick Cook, and Michael Prysby
(collectively, “MDEQ Defendants”) moved to dismiss.2 (ECF No. 91.) And
finally, on the same day, Defendants the City of Flint, Darnell Earley,
The Court will refer to Ms. Sapolin, as personal representative of Ms. Bacon’s
estate as Plaintiff, and will refer to Ms. Bacon herself as Bacon.
1
Defendants former Governor Richard D. Snyder and Andy Dillon filed a notice
of joinder/concurrence in the MDEQ Defendants’ motion to dismiss. (ECF No. 92.)
(Defendants Snyder and Dillon are, collectively, the “State Defendants.”) Defendant
Adam Rosenthal also filed a joinder and concurrence in the MDEQ Defendants’
motion. (ECF Nos. 97, 99.) Rosenthal will be included in the Court’s reference to the
“MDEQ Defendants.”
2
2
Gerald Ambrose, Dayne Walling, Howard Croft, Michael Glasgow, and
Daugherty Johnson (collectively “City Defendants”) moved to dismiss.
(ECF No. 93.) For the reasons set forth below, the Court grants in part
and denies in part Defendants’ motions to dismiss the complaint.
I. Prior Precedent in the Flint Water Cases
This Court has previously adjudicated other motions to dismiss in
the Flint Water Cases. First, there was Guertin v. Michigan, No. 1612412, involving individual plaintiffs and many of the same claims and
Defendants in the present case. Next, there was Carthan v. Snyder, No.
16-10444, a consolidated class action that also involved similar
Defendants and claims. Also, there were Walters v. City of Flint, No. 1710164, and Sirls v. Michigan, No. 17-10342, which involved individual
plaintiffs and the same Master Complaint as the present case.
Most recently, there were Brown v. Snyder, No. 18-10726, and
Marble v. Snyder, No. 17-12942, which not only involved individual
plaintiffs and similar claims, facts, Defendants, and the same Master
Complaint as the present case, but also involved legionella bacteria,
which is the focus of this case.
3
The Flint Water Cases have already produced several Sixth Circuit
opinions. These are binding on this Court and include Carthan v. Earley,
960 F.3d 303 (6th Cir. 2020); Walters v. Flint, No. 17-10164, 2019 WL
3530874 (6th Cir. August 2, 2019); Guertin v. Michigan, 912 F.3d 907
(6th Cir. 2019); Boler v. Earley, 865 F.3d 391 (6th Cir. 2017); and Mays v.
City of Flint, 871 F.3d 437 (6th Cir. 2017).
The Court will also adhere to its own prior decisions where
appropriate, including Guertin v. Michigan, No. 16-12412, 2017 WL
2418007 (E.D. Mich. June 5, 2017); Carthan v. Snyder, 329 F. Supp. 3d
369 (E.D. Mich. 2018); Carthan v. Snyder, 384 F. Supp. 3d 802 (E.D.
Mich. 2019); and Walters v. City of Flint, No. 17-10164, 2019 WL 3530874
(E.D. Mich. Aug. 2, 2019). In particular, it will rely on Marble v. Snyder,
453 F. Supp. 3d 970 (E.D. Mich. 2020) and Brown v. Snyder, No. 1810726, 2020 WL 1503256 (E.D. Mich. Mar. 27, 2020) to resolve the
current motions where appropriate. This opinion will describe Plaintiff’s
legal claims and then explain why a similar or different result is justified
based on the factual allegations pleaded here.
II. Procedural History and Background
A. The Master Complaint
4
As the number of Flint Water Cases increased over the years, the
Court entered case management orders to manage the litigation. For
example, in early 2018, it appointed and then directed co-liaison lead
counsel for the individual plaintiffs to file a Master Complaint that would
apply to all pending and future non-class action cases. (Carthan, No. 1610444, ECF No. 347.) The Master Complaint was filed in Walters.
(Walters, No. 17-10164, ECF no.185-2.) The attorneys in each of the
individual cases were also ordered to file a Short Form Complaint,
adopting only the pertinent allegations from the Master Complaint as
they saw fit. The Short Form Complaints also allowed for an Addendum
if any Plaintiff wished to allege a new cause of action or include
additional Defendants. This would allow the Court to issue opinions that
would apply to multiple individuals, rather than to address each case in
turn and cause a delay in the administration of justice. This is the
procedure that Plaintiff was required to follow in this case.
B. Plaintiff’s Operative Short-Form Complaint Filed June
1, 2020
Plaintiff’s operative Short Form Complaint was filed on June 1,
2020 (the “June 2020 Short Form Complaint”). (ECF No. 86.) In it, she
5
fully adopts the relevant facts alleged in the Master Complaint from
Walters. (Walters, No. 17-cv-10164, ECF No. 185-2.) The Master
Complaint’s facts, setting forth the background of the Flint Water Crisis,
were summarized in this Court’s opinion in Walters and will not be
reproduced here. Walters v. City of Flint, No. 17-cv-10164, 2019 WL
3530874, at *4–*11 (E.D. Mich. Aug. 2, 2019). However, as set forth
above, unlike Walters, Plaintiff does not allege injuries from lead
poisoning. Rather, she alleges injuries from Bacon’s exposure to
legionella.
Plaintiff’s June 2020 Short Form Complaint involves the following
claims against the following Defendants. First, she checked boxes on the
short form for the following Defendants.3
Governor Richard D. Snyder4
Plaintiff originally included Bradley Wurfel in her operative complaint, but
stipulated to his dismissal shortly thereafter. (ECF No. 88.) The operative complaint
also named Darnell Earley and Gerald Ambrose. (ECF No. 86.) However, in her
response to the City Defendants’ motion to dismiss, and as further discussed below,
Plaintiff consented to the dismissal of her claims against Earley and Ambrose. (ECF
No. 105, PageID.1476.) Accordingly, these three individuals are not included in this
list.
3
Plaintiff does not specify whether she sues former Governor Snyder in his
official or individual capacity. For the sake of consistency with earlier Flint Water
decisions, former Governor Snyder will be referred to as Governor Snyder or the
Governor where it appears that the claim against him is in his individual capacity.
Where it appears that the claim is against him in his official capacity, the claim is
4
6
The City of Flint
Howard Croft
Michael Glasgow
Daugherty Johnson
Stephen Busch
Patrick Cook
Michael Prysby
Adam Rosenthal
Andy Dillon
Lockwood, Andrews & Newnam P.C.
Lockwood Andres & Newnam, Inc.
Leo A. Daly Company
Rowe Professional Services Company and Rowe Engineering
(together, “Rowe”)
(ECF No. 86.)
Next, she checked the boxes on the short form complaint for the
following claims:
Count I: 42 U.S.C. § 1983–14th Amendment, Substantive Due
process- State Created Danger
Count II: 42 U.S.C. § 1983–14th Amendment. Substantive
Due Process- Bodily Integrity
Count IV: 42 U.S.C. § 1983 – 5th and 14th Amendments,
Equal Protection of the Law- Wealth Based
Count VIII: Punitive damages
Count IX: Professional Negligence (LAN PC, LAN Inc. and
LAD)
now against Governor Gretchen Whitmer. See Fed. R. Civ. P. 25(d). But, again, for
consistency, the Court will still refer to Governor Snyder.
7
Count X: Professional Negligence (Rowe)5
Count XIII: Survival and Wrongful Death, MCL 600.2922 (All
Defendants)
(ECF No. 86, PageID.1189–90.)
C. Plaintiff’s
Previous
Defendants
Complaints,
Claims,
and
Before analyzing Defendants’ motions to dismiss, it is helpful to set
forth some of the background of Plaintiff’s case. Before she died, Bacon
initially filed her lawsuit in the State of Michigan, Genesee County
Circuit Court. She amended her complaint on April 26, 2016 (the “April
2016 Complaint”). The Defendants in that case removed it to this Court.
(Bacon v. Rowe et al., No. 16-11579, (E.D. Mich. May 3, 2016) (O’Meara,
J.).) The following month, in May 2016, Bacon voluntarily dismissed the
individual Defendants in that case. (Id. at ECF No. 32.) The remaining
parties stipulated to remand the case back to the Genesee County Circuit
Court, and they stipulated to permit Bacon to file a second amended
complaint. (Id. at ECF Nos. 34, 35.)
Now back in the Genesee County Circuit Court, Bacon progressed
with her second amendment to the complaint, which was titled the First
5
Defendant Rowe answered the complaint. (ECF No. 98.)
8
Amended Short Form Complaint, pursuant to the Master Individual
Complaint adopted by the Genesee County Circuit Court. On November
9, 2017, she filed her First Amended Short Form (the “November 2017
Complaint”). Bacon v. Lockwood, Andrews & Newman, P.C. et al., No. 17106692, Consol. Docket No. 17-108646 (Mich. Genesee Cir. Ct. Nov. 9,
2017) (ECF No. 1-1, PageID.47–57; ECF No. 1-3, PageID.59–146.) On
January 30, 2018, Defendants jointly removed Bacon’s action to this
Court. (ECF No. 1.)
As set forth above, on March 26, 2018, after this Court’s
consolidation and case management orders were entered, Bacon adopted
the Master Complaint from Walters in full and filed a Short Form
Complaint with new allegations and new Defendants (the “March 2018
Short Form Complaint”). (ECF No. 14.)
On April 10, 2018, Bacon unfortunately passed away. (ECF No. 26,
27.) The Court granted a substitution of parties, replacing Bacon with
Plaintiff. (ECF No. 31.) Plaintiff and several Defendants then stipulated
to dismissal of certain Defendants and certain claims. (ECF Nos. 82, 83.)
9
On June 1, 2020, Plaintiff filed the operative June 2020 Short Form
Complaint.6 (ECF No. 86.) This complaint differed from her previous
complaints in many regards, not only reflecting a new post-death cause
of action for wrongful death, but also reflecting several other changes in
Defendants and claims.
For example, the June 2020 Short Form Complaint omits some of
the claims Bacon previously brought in this case before her death,
including: gross negligence, negligent nuisance in fact, public nuisance,
intentional nuisance in fact, intentional infliction of emotional distress,
grossly negligent infliction of emotional distress, assault and battery,
breach of contract, breach of implied warranty, trespass, unjust
enrichment, and a CERCLA violation.
Further, the operative complaint omits Bacon’s previous claims
against Defendants Daniel Wyant, Laine Shekter Smith, Nick Lyon,
State of Michigan, Jeff Wright, Edward Kurtz, Dayne Walling, Veolia
LLC, Veolia, Inc., and others. Notably, the June 2020 Short Form
Complaint also includes new claims Bacon never brought before: a 41
Plaintiff did so pursuant to the Court’s order allowing Plaintiffs in any
remaining post-Marble and post-Brown legionella cases to amend their complaints
before June 3, 2020. (ECF No. 1150.)
6
10
U.S.C.§ 1983 claim based on wealth, a claim for punitive damages, and a
state law claim for survival and wrongful death. Finally, Plaintiff did not
check the operative complaint’s checkbox for “Property Damage,” as
Bacon had in past iterations of her complaint. (ECF No. 86 PageID.1189.)
Nevertheless, Plaintiff filled out paragraph seven of the short form
complaint, which instructs that the paragraph should only be filled out
“[i]f alleging property damage.” (Id., PageID.1188.)
One reason for highlighting this is because Plaintiff requests in her
response brief that she be permitted to amend her complaint again if the
Court finds her operative complaint fails to state a claim. (ECF No. 105,
PageID.1473.)
Although Federal Rule of Civil Procedure 15(a)(2) instructs courts
to “freely give leave” to amend, this policy does not include arguments
made as an aside in a response brief. A “request for leave to amend almost
as an aside, to the district court in a memorandum in opposition to the
defendant’s motion to dismiss is ... not a motion to amend.” Kuyat v.
MioMimetic Theraputics, Inc., 747 F.3d 435, 444 (6th Cir. 2014) (citing
La. Sch. Emps.' Ret. Sys. v. Ernst & Young, LLP, 622 F.3d 471, 486 (6th
Cir. 2010)). In Kuyat, the Sixth Circuit evaluated language from the
11
plaintiffs in a response brief that stated, “Alternatively, Plaintiffs request
leave to amend the Complaint in the event that the Court finds that it
falls short of the applicable pleading standards in any respect.” (Id. at
444.) The plaintiffs in that case did not attach a copy of their proposed
amended complaint. Taking these two factors together, the Sixth Circuit
found that this type of argument for an amendment, made in a response
in opposition to a Rule 12(b)(6) motion is essentially “throwaway
language” and that the district court did not abuse its discretion in
refusing to allow the plaintiffs to amend. Id.
Here, Plaintiff argues that “if arguendo, Plaintiff has not alleged
sufficient facts linking her death to her Legionella sickness, the
appropriate remedy is to grant Plaintiff leave to further amend.” (ECF
No.105, PageID.1473.) She argues that “any such deficiencies can be
readily cured by granting” leave to amend. (Id.) Plaintiff did not include
her proposed amendment. Instead, she includes a short paragraph
stating that Bacon suffered, “numerous severe infections to her lungs and
other parts of her body – which in turn affected her ability to oxygenate
and heal from other illnesses that were either pre-existing or contracted
after she contracted Legionella sickness.”(Id. at PageID.1474.) Then, she
12
states that these additional facts “should arguably be sufficient to cure
the factual deficiencies.” (Id.)
Plaintiff’s purported factual-support paragraph is not a proposed
amendment. Indeed, all it does is raise more questions. What was the
nature of Bacon’s severe illness, and what other parts of her body besides
her lungs were infected? What were her “other illnesses”? Were they
contracted before or after her legionella exposure and illness? What were
her “pre-existing conditions” that are referenced, and how do they tie into
her claims? Her response to factual deficiencies raise more questions
than answers. In this way, Plaintiff’s request to further amend her
complaint is not meaningfully different from that which was rejected in
Kuyat. Accordingly, her request for leave to amend is denied.
III. Legal Standard
When deciding a motion to dismiss under Federal Rule of Procedure
12(b)(6), the Court must “construe the complaint in the light most
favorable to the plaintiff and accept all allegations as true.” Keys v.
Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012). “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.
13
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). A plaintiff’s claim is facially plausible “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. A plausible claim need not contain “detailed factual
allegations,” but it must contain more than “labels and conclusions” or “a
formulaic recitation of the elements of a cause of action.” Twombly, 550
U.S. at 555.
IV. Analysis
A. Incorporation of Prior Complaints
1. The State-Court First Amended Master Long Form
Complaint
As an initial matter, Plaintiff did not properly incorporate the items
that she references in the June 2020 Short Form Complaint. Federal Rule
of Civil Procedure 10(c) governs adoptions by reference, and states, “A
statement in a pleading may be adopted by reference elsewhere in the
same pleading or in any other pleading or motion. A copy of a written
instrument that is an exhibit to a pleading is a part of the pleading for
all purposes.” The Sixth Circuit rule that “[m]atters outside the pleadings
are not to be considered by a court in ruling on a 12(b)(6) motion to
14
dismiss” applies. Weiner v. Klais & Co., 108 F.3d 86, 98 (6th Cir.1997),
(overruled on other grounds, Swierkiwica v. Sorema, N.A., 534 U.S. 506,
(2002)).
Plaintiff did not attach the First Amended Long Form Complaint to
her pleadings, nor is it anywhere else on her docket. In paragraph twelve
of the June 2020 Short Form Complaint, Plaintiff states that she
“incorporates herein by reference” the factual allegations and conduct of
Defendants “set forth in the First Amended Master Long Form
Complaint and her Short form Complaint filed in the Genesee County
Circuit Court on November 9, 2017, prior to being removed to this
Honorable Court on or about January 20, 2018.” (ECF No. 86,
PageID.1190 (emphasis added).)
The state-court First Amended Master Long Form Complaint,
which she specifically names, is not part of the record in this case. Rather,
the state-court Second Amended Master Long Form Complaint was the
operative state-court long form complaint at the time of removal, and is
included on the docket. Plaintiff was clear in her reference to the First
Amended Long Form Complaint, and not the Second. Plaintiff does not
address this discrepancy or seek to make a correction in her response
15
briefs.7 Indeed, she does not address this discrepancy at all. Accordingly,
she will be taken at her word regarding the item she specifically
referenced, and the First Amended Master Long Form Complaint is not
incorporated.
2. The November 2017 Complaint
Plaintiff does, however, properly incorporate portions of Bacon’s
state-court November 2017 Complaint. Unlike the state-court First
Amended Master Long Form complaint, the November 2017 Complaint
was filed on the docket in this case. (ECF No. 1-2.) However, the
November 2017 Complaint is rife with internal inconsistencies, and it
involves parties and claims that do not align with the boxes she checked
in her June 2020 Short Form Complaint.
Moreover, Plaintiff doubles down on this discrepancy in her sur-reply,
claiming that she may have never intended to incorporate the state-court filings at
all, where she states:
The MDEQ Defendants have incorrectly represented that Plaintiff is
relying on the Master Long Form Complaint filed in the Genesee County
Circuit Court. This is simply not true. Plaintiff is relying on her
Amended Short Form Complaint ([ECF No. ]86), which expressly
adopted the Master Long Form Complaint that was filed with this Court
in Walters . . .
(ECF No. 111-1, PageID.1527.) Her sur-reply is not a factor in this decision, but it
does illustrate more of the inconsistencies she presents in this case.
7
16
For example, in her short form November 2017 Complaint, Bacon
sets forth introductory descriptions of individuals identified as
governmental defendants, including Dennis Muchmore, Eden Victoria
Wells, M.D., Linda Dykema, Nancy Peeler, and Robert Scott. But then,
she fails to specifically name them when setting forth her counts. (ECF
No. 1-2, PageID.53–56.) Further complicating the puzzle, her November
2017 Complaint incorporates by reference paragraphs of the state-court
Second Amended Master Long-Form Complaint. The state-court Second
Amended Master Long-Form Complaint does allege counts against these
specific individuals. When the two are taken together, it is unclear
whether Plaintiff was suing those individuals by incorporation or not
since she only partially addressed them in her short form complaint. Yet,
it is not the job of this Court to sort this out, particularly since these
individuals are not defendants here.
The only relevant paragraphs that the Court can discern in Bacon’s
November 2017 Complaint are her specific allegations regarding
legionella exposure. They are set forth below:
2. As a direct and proximate result of using Flint River water
in her activities of daily living, Plaintiff Margaret A. Bacon
contracted Legionella pneumonia on or about September 12,
2014 in her home, resulting in lengthy hospitalizations during
17
which she was intubated and placed on mechanical
ventilation and treated with intravenous antibiotics.
3. As a direct and proximate result of Plaintiff Margaret
Bacon’s Legionella pneumonia and lengthy hospitalizations,
mechanical ventilation, and life threatening infections, she
suffered severe and permanent injuries and damages.
(ECF No. 1-2, PageID.48.) These are the only paragraphs where Plaintiff
provides any detail regarding her legionella exposure and illness. The
Court will accept as incorporated only those paragraphs set forth above
that describe Plaintiff’s legionella exposure and subsequent illness.
B. Plaintiff Fails to State a Wrongful Death Claim
MDEQ Defendants, State Defendants, City Defendants, LAN and
LAD’s and motions to dismiss Plaintiff’s wrongful death claim are
granted because Plaintiff did not plead any facts to demonstrate that
Bacon’s death, or injuries resulting in death, were caused by the wrongful
act, neglect, or fault of Defendants. Plaintiff alleges wrongful death under
Michigan Compiled Laws § 600.2922. The statute provides for the
recovery of damages for a wrongfully caused death, and governs the
distribution of wrongful death damages. Id. Actions under this statute
are derivative and must be brought by the personal representative of the
18
estate. Mich. Comp. Laws § 600.2922(2). The statute states, in relevant
part,
Whenever the death of a person, injuries resulting in death,
. . . shall be caused by wrongful act, neglect, or fault of another,
and the act, neglect, or fault is such as would, if death had not
ensued, have entitled the party injured to maintain an action
and recover damages, the person who or the corporation that
would have been liable, if death had not ensued, shall be liable
to an action for damages . . . .
Mich. Comp. Laws § 600.2922(1) (emphasis added). Plaintiff did not
plead any facts to demonstrate that Bacon’s death, or injuries resulting
in death, were caused by the “wrongful act, neglect, or fault” of
Defendants.
In paragraph ten of her June 2020 Short Form Complaint, Plaintiff
sets forth her claims. Her claim for survival and wrongful death against
all Defendants, is identified as an “additional claim” that is not identified
in the Master Complaint from Walters. Accordingly, to sustain her
additional claim, Plaintiff was required to provide factual support in
paragraph twelve.
Paragraph twelve of Plaintiff’s June 2020 Short Form Complaint
states:
19
12. If additional claims against the Defendants
identified in the Master Long Form Complaint are alleged in
paragraph 10, the facts supporting these allegations must be
pleaded. Plaintiff asserts the following factual allegations
against the Defendants identified in the Master Long Form
Complaint:
A.
Plaintiff, Deborah Sapolin, as the Personal
Representative of the Estate of Margaret A. Bacon,
incorporates herein by reference all preceding factual
allegations set forth in the First Amended Master Long
Form Complaint and her Short Form Complaint filed in
the Genesee County Circuit Court on November 9, 2017,
prior to being removed to this Honorable Court on or
about January 30, 2018.
B.
The conduct of Defendants, as described in the First
Amended Master Long Form Complaint and Plaintiff’s
Short Form Complaint filed in the Genesee County
Circuit Court on November 9, 2017, was the proximate
cause of Margaret A. Bacon’s death.
C.
Plaintiff, as Personal Representative of the Estate of
Margaret A. Bacon, Deceased, is entitled to the following
damages as a result of Defendants’ conduct:
i. All damages recoverable pursuant to Michigan’s
wrongful death statute, MCL 600.2922;
ii. Damages for pain and suffering sustained by
decedent Margaret A. Bacon before her death on
April 10, 2018;
iii. Loss of past and future earnings;
iv. Funeral and burial expenses;
v. Medical and hospital expenses;
vi. Damages for the loss of society and companionship
suffered by Margaret A. Bacon’s family members.
(ECF No. 86, PageID.1190–91.)
20
As set forth above, Plaintiff failed to properly incorporate her statecourt complaints except for paragraphs 2–3, which specifically relate to
Bacon’s legionella exposure and illness. However, even the incorporated
paragraphs do not provide any facts related to the cause of Bacon’s death
because they were written before April 2018 when she died.
Therefore, the June 2020 Short Form Complaint was the place to
set forth allegations regarding Bacon’s cause of death. Yet, the only
allegation regarding Bacon’s death in the June 2020 Short Form
Complaint is Plaintiff’s conclusory allegation that Defendants were “the
proximate cause of Margaret A. Bacon’s death.” (PageID.1190–91.) This
bare allegation provides no facts regarding how her 2014 illness, while
very serious, contributed to or caused her 2018 death.
Plaintiff argues in her response briefs that Bacon died “as a result
of complications associated with her Legionella sickness.” (ECF No. 101,
PageID.1395; ECF No. 102, PageID.1414.) She states that she “advised
the court of this” and was given a “green light” to add wrongful death and
survival claims to her short form complaint. (Id.) She also defends the
brevity of her pleadings, stating that the format of long-and-short-form
complaints adopted in this case:
21
allow each individual Plaintiff to simply check boxes for
Defendants and claims, and they are set up in a way that
minimizes the amount of additional factual information that
each individual Plaintiff must allege in addition to what is
already alleged in the Master Complaint. These special
pleading requirements clearly supersede any conflicting
procedural requirements contained elsewhere.
(ECF No. 105, PageID.1471.) She argues that these forms create a
“relaxed specificity standard.” (Id. at 1472.)
Finally, Plaintiff argues that, even without the “relaxed” standard,
her facts were sufficient to support a wrongful death claim:
Her [June 2020] Short Form Complaint clearly identifies that
she contracted legionella sickness as a result of being exposed
to the contaminated Flint water supply, and that she became
violently ill immediately thereafter as a result. Her
Complaint further confirms that she subsequently underwent
extensive medical treatment and died with a reasonable short
amount of time after contracting Legionella sickness and
undergoing extensive medical treatment for all of the harms
that it brought upon her. Given the nature and severity of her
legionella sickness and the timing of her death, it is clearly
reasonable to infer circumstantially that Plaintiff’s ultimate
death was brought on by her legionella sickness.
(ECF No. 105, PageID.1472 (emphasis added).)
This is not an accurate account of the contents of the June 2020
Short Form Complaint. As set forth above, Plaintiff alleges Bacon was
22
exposed to legionella in September 2014, and died over three-and-a-half
years later in April 2018. Three-and-a-half years is not a “reasonable
short amount of time,” particularly when Plaintiff has not provided any
additional detail regarding the length of Bacon’s illness, or what harms
it brought about that could reasonably lead the Court to conclude that
legionella exposure, and therefore Defendants, caused her death.
Nor are Plaintiff’s arguments that the streamlined process for longand-short-form complaints creates a “relaxed” specificity standard
persuasive. The short form complaint itself states, “factual support for
these allegations must be pleaded.” (ECF No. 86, PageID.1190.) The
Master Complaint from Walters specifically states that, “[a]ny separate
facts and additional claims of individual Plaintiffs may be set forth as
necessary in the actions filed by the respective Plaintiffs.” (Walters, No.
17-0164, ECF No.185-2, PageID.5044.) Factual support for a complaint
is a basic pleading requirement under Federal Rule of Civil Procedure 8,
which is unchanged by the streamlined process in the Flint Water cases.
Accordingly, Defendants’ motions to dismiss Plaintiff’s wrongful
death claim are granted. Rowe answered the complaint and did not move
to dismiss this claim. However, in light of this decision, Rowe may file a
23
motion under Rule 12(c) within sixty days, which is Monday December
21, 2020.
C. Plaintiff’s Remaining Long-Form Counts
All of Plaintiff’s remaining claims rely in their entirety on the
Master Complaint from Walters. (Walters, No. 17-10164, ECF No. 86,
PageID.1186.) The Court will address each claim in turn as set forth
below.
1. State-Created Danger Claim
Plaintiff alleges that MDEQ Defendants, State Defendants, and
City Defendants violated Bacon’s right to be free from a state-created
danger. (ECF No. 86, PageID.1189.) The Defendants moved to dismiss.
(ECF No. 91, PageID.1307–08); (ECF No. 93, PageID.1327.)
Plaintiff concedes in her response that, “the Court dismissed
identical State Created Danger claims” in Marble and Brown. (ECF No.
104, PageID.1459.) She acknowledges that the Court’s ruling in those
cases govern this issue but notes that she disagrees with those rulings.
(Id.)
24
For the reasons set forth in Marble and Brown, Plaintiff’s statecreated danger claims are dismissed. Brown, 2020 WL 1503256, at * 16;
Marble, 453 F. Supp. 3d at 988–91.
2. Bodily Integrity Claim
Plaintiff alleges that MDEQ Defendants, State Defendants, and
City Defendants violated her right to bodily integrity. (ECF No. 86,
PageID.1189.) The Defendants moved to dismiss. (ECF No. 91,
PageID.1296–1306); (ECF No. 93, PageID.1333–1337.)
As in Marble, the Court adopts the governing legal standard for a
bodily integrity claim set forth previously in Walters and Carthan:
The right to bodily integrity is a fundamental interest
protected by the Due Process Clause of the Fourteenth
Amendment. Guertin, 912 F.3d at 918–19; Guertin, 2017 U.S.
Dist. LEXIS 85544, at *63 (citing Union Pac. Ry. Co. v.
Botsford, 141 U.S. 250, 251 (1891)). And although violations
of the right to bodily integrity usually arise in the context of
physical punishment, the scope of the right is not limited to
that context. Kallstrom v. City of Columbus, 136 F.3d 1055,
1062–63 (6th Cir. 1998). For instance, the “forcible injection
of medication into a nonconsenting person’s body represents
a substantial interference with that person’s liberty.” Guertin,
912 F.3d at 919 (citing Washington v. Harper, 494 U.S. 210,
229 (1990)). And “compulsory treatment with anti-psychotic
drugs may [also] invade a patient’s interest in bodily
integrity.” Guertin, 2017 U.S. Dist. LEXIS 85544, at *66
(citing Lojuk v. Quandt, 706 F.2d 1456, 1465–66 (7th Cir.
1983)). The key is whether the intrusion is consensual. See
Guertin, 912 F.3d at 920. There is no difference between the
25
forced invasion of a person’s body and misleading that person
into consuming a substance involuntarily. Guertin, 2017 U.S.
Dist. LEXIS 85544, at *71 (citing Heinrich v. Sweet, 62 F.
Supp. 2d 282, 313–14 (D. Mass. 1999)). As such, officials can
violate an individual’s bodily integrity by introducing lifethreatening substances into that person’s body without their
consent. Guertin, 2017 U.S. Dist. LEXIS 85544, at *65 (citing
Washington, 494 U.S. at 229).
However, to state a claim, plaintiffs must do more than point
to the violation of a protected interest; they must also
demonstrate that it was infringed arbitrarily. Guertin, 912
F.3d at 922. But see Range v. Douglas, 763 F.3d 573, 589 (6th
Cir. 2014) (observing that in some contexts government action
may violate substantive due process without a liberty interest
at stake). And with executive action, as here, only the most
egregious conduct can be classified as unconstitutionally
arbitrary. Cty. of Sacramento v. Lewis, 523 U.S. 833, 846
(1998). In legal terms, the conduct must “shock[ ] the
conscience.” Guertin, 2017 U.S. Dist. LEXIS 85544, at *63
(quoting Lewis, 523 U.S. at 846).
Whether government action shocks the conscience depends on
the situation. Ewolski v. City of Brunswick, 287 F.3d 492, 510
(6th Cir. 2002). Where unforeseen circumstances demand the
immediate judgment of an executive official, liability turns on
whether decisions were made “maliciously and sadistically for
the very purpose of causing harm.” Lewis, 523 U.S. at 852–53
(quoting Whitley v. Albers, 475 U.S. 312, 320–21 (1986)). But
where an executive official has time for deliberation before
acting, conduct taken with “deliberate indifference” to the
rights of others “shocks the conscience.” See Claybrook v.
Birchwell, 199 F.3d 350, 359 (6th Cir. 2000). This case
involves the latter of these two situations. And as a result,
plaintiffs must demonstrate that (1) officials knew of facts
from which they could infer a “substantial risk of serious
harm,” (2) that they did infer it, and (3) that they nonetheless
acted with indifference, Range, 763 F.3d at 591 (citing
26
Ewolski, 287 F.3d at 513), demonstrating a callous disregard
towards the rights of those affected, Guertin, 912 F.3d at 924
(quoting Schroder v. City of Fort Thomas, 412 F.3d 724, 730
(6th Cir. 2005)).
Marble, 453 F. Supp. 3d at 991–92 (citing Walters, 2019 WL 3530874, at
*14–*15; Carthan, 384 F. Supp. 3d at 839–40).
As set forth, the Court’s inquiry is whether each Defendant had
knowledge of the facts from which they could infer a substantial risk of
serious harm to Bacon, did infer it, and nonetheless acted with
indifference demonstrating a callous disregard towards Bacon’s rights.
Accordingly, the pertinent time frame for this knowledge-based analysis
is the time before Bacon became ill on September 12, 2014. In analyzing
the bodily integrity claims in Walters, the Court relied upon many facts
that occurred after Bacon became ill. Those facts are not applicable to the
bodily integrity claim here, which is limited to whether Defendants can
be held liable for the conditions that resulted in Bacon contracting
legionella. For this reason, only conduct undertaken by Defendants
before Plaintiff fell ill with legionella on September 12, 2014 can be
considered in this analysis.
a) Legionella Exposure
27
As an initial matter, in both Marble and Brown, the Court
determined that bodily integrity claims based on legionella exposure
could proceed on the same bases as claims based on lead exposure.
Marble, 453 F. Supp. 3d at 992–93; Brown, 2020 WL 1503256 at *5–*8.
It also held that the Defendants’ actions that allegedly hid the Flint
water’s lead and legionella content implicated the plaintiffs’ right to
bodily integrity. Id. The Court fully adopts those conclusions in this case.
MDEQ Defendants and State Defendants urge the Court to decide
this issue differently here because, they argue, state-level legionella
exposure regulations do not rest with MDEQ as the state regulator. (ECF
No. 91, PageID.1300.) Plaintiff does not address this argument in her
response. (ECF No. 104.)
In Brown, MDEQ Defendants and State Defendants also argued
that legionella-related cases should be decided differently from lead
injury cases. (Brown, ECF No. 83, PageID.442, 444); (ECF No. 91,
PageID.1310–1312.) The Court rejected that argument in Brown,
explaining:
“[T]his is not a case about the right to a contaminant-free
environment or clean water. Rather, this case implicates the
consumption of life-threatening substances. Indeed, neither
side disagrees that lead and legionella are life threatening,
28
nor that plaintiffs ingested these contaminants and others
through the water supply.” [Carthan,] 384 F. Supp. 3d at 840
(internal citations removed). Similarly, as the Sixth Circuit
held in Guertin, a related Flint Water Case: “Involuntarily
subjecting nonconsenting individuals to foreign substances
with no known therapeutic value—often under false
pretenses and with deceptive practices hiding the nature of
the interference—is a classic example of invading the core of
the bodily integrity protection.” Guertin v. State, 912 F.3d 907,
920–21 (6th Cir. 2019).
Brown, 2020 WL 1503256, at * 7. The presence of legionella bacteria was
a foreseeable consequence of the April 2014 switch to the Flint River. As
such,
Plaintiff plausibly alleges that the presence of legionella
bacteria in Flint was a foreseeable result of the April 2014
switch to Flint River water. Because Defendants allegedly hid
the fact that Flint’s water contained life-threatening
substances like lead and legionella, and because under state
and municipal law, Plaintiff was not permitted to receive
water in any other way, Flint Code of Ord. §§ 46-25, 46-26, 4650(b), Plaintiff’s claim implicates the right to bodily integrity.
See Walters, 2019 WL 3530874, at *15.
Brown, 2020 WL 1503256, at * 7. Moreover, the Court’s reasoning
regarding exposure in Brown applies with the same force here:
The right to bodily integrity is not dependent upon which
particular dangerous or even lethal substance came from
Flint’s pipes. Defendants made a choice to utilize the long
dormant Flint Water Treatment Plant (“FWTP”), knowing
29
that the plant required millions of dollars in upgrades before
it could process the raw water from the Flint River, and that
those upgrades would not be implemented.
Id. at *8.
As such, this issue has already been fully litigated in Marble and
Brown. MDEQ Defendants and State Defendants advance no compelling
arguments to justify treating legionella-related cases differently from
lead injury cases. Accordingly, the Court will adhere to its prior decisions
in Marble and Brown.
b) Defendants Cook and Dillon
In Brown, the Court dismissed the bodily integrity claims against
Cook and Dillon because the Master Complaint contained insufficient
factual allegations against them that preceded Odie Brown’s death in
January 2015. Brown, 2020 WL 1503256, at *9, *12. If the pre-January
2015 allegations in Brown were insufficient, then Plaintiff’s preSeptember 2014 allegations here must also fail. For the reasons stated in
Brown, Plaintiff’s bodily integrity claims against Cook and Dillon are
dismissed.8 See Brown, 2020 WL 1503256, at *9, *12.
In her response to the City Defendants’ motion to dismiss, Plaintiff states
that, based on Brown, dismissal should be denied against all Defendants “except for
Defendants Ambrose and Walling.” (ECF No. 105, PageID. 1469–70.) However,
8
30
c) Defendant Governor Snyder
In contrast to Cook and Dillon, the allegations set forth in Brown
indicated that Governor Snyder knew of and inferred a substantial risk
of serious harm to Flint water users prior to September 2014.
[Governor Snyder] knew that the use of “Flint River water as
a primary drinking source had been professionally evaluated
and rejected as dangerous and unsafe” in 2011. (Id. at
PageID.5077.) He also knew that under the plan to create the
Karegnondi Water Authority, Flint River water would be used
as an interim source of water for the City of Flint. (Id.)
Plaintiff also alleges that shortly after the switch to Flint
River water, the Governor’s office began receiving complaints
about the water. (Id. at PageID.5085.) There were also
numerous press stories about water quality problems in Flint
as early as May 2014. (Id.) By June of 2014, “[m]any Flint
water users reported that the water was making them ill[.]”
Id. (citing Walters, No. 17-10164, ECF No. 185-2). As in Brown, it is
reasonable to infer that because Governor Snyder knew of the significant
risks and seriously compromised water quality issues well before then,
he knew of and did infer a substantial risk. Brown, 2020 WL 1503256, at
Walling is not a defendant in this case (ECF No. 86), so it is unclear why Plaintiff
includes this argument. However as to Ambrose, the Court accepts Plaintiff’s
statement in her response that Defendants’ motion to dismiss should be denied except
as to Ambrose as a stipulation to his dismissal. Ambrose is dismissed.
31
*8. Accordingly, the first two elements of a bodily integrity claim have
been adequately plead.
As for the third element of a bodily integrity claim, callous
disregard, the Court in Marble determined that the plaintiff’s claim that
Governor Snyder “authorized the switch to the Flint River, knowing that
‘there was no agreed upon plan in place to implement the necessary
remediation at the FWTP in order to use Flint River water as Flint’s sole
source of water.’” Marble, 453 F. Supp. 3d at 994 (citing Master
Complaint from Walters, No. 17-10164, ECF No. 185-2, PageID.5077.)
The Court in Marble also reasoned that “the Governor’s continued
inaction following the switch reinforces his deliberate indifference.” Id.
Even without the allegations of a cover-up beginning in January 2015,
approximately four months after Bacon contracted legionella-related
illness, Governor Snyder’s failure to act for months despite notice of harm
shows a callous disregard. The Court came to a similar conclusion in
Brown, where it also disregarded allegations that took place after
January 2015. Brown, 2020 WL 1503256, at * 9. Accordingly, Governor
Snyder’s motion to dismiss is denied and Plaintiff’s bodily integrity claim
against him may continue.
32
d) Defendants Croft, Glasgow, and Johnson
In Carthan, the Court summarized Croft, Glasgow, and Johnson’s
alleged actions. The following occurred before September 12, 2014, when
Bacon contracted illness:
As the transition to the Flint River loomed, [in spring of 2014]
all three knew that the FWTP was not ready to process the
raw water. And Croft, in particular, was aware of the lead and
Legionnaires’ disease issues that followed the transition.
Glasgow tested for and found high concentrations of lead in
the water. He also recognized that Flint was not using
corrosion control treatment and had no legitimate lead and
copper testing in place. . . . Despite knowing that the FWTP
was not ready to process the Flint River water, Croft and
Johnson pressured Glasgow to give the green light to the
transition [in April 2014].
Carthan, 384 F. Supp. 3d at 860. Accordingly, it is reasonable to conclude
that these Defendants were aware of the substantial risk of harm facing
Bacon, that they did infer it, and that they acted with callous disregard
toward her.
In Walters, the Court found that the plaintiffs’ bodily integrity
claims in the Master Complaint contained essentially the same
allegations as the Carthan complaint with respect to Croft, Johnson, and
Glasgow. Walters, 2019 WL 3530874, at *18. Accordingly, for the same
33
reasons set forth in Carthan and Walters, Croft, Glasgow, and Johnson
were aware of the substantial risk of harm facing Bacon.
Analyzing the callous disregard element with respect to these three
Defendants again in Marble, the Court stated,
[A]ll three Defendants participated in making the switch to
the Flint River in April 2014, knowing that the FWTP was not
ready to process water. This fact alone is enough to show
callous disregard for Bertie Marble’s bodily integrity.
453 F. Supp. 3d at 1000. Here, this fact alone is also enough to show Croft,
Glasgow, and Johnson’s callous disregard for Bacon’s bodily integrity.
Because these individuals were involved in the switch to the Flint River,
knowing full well of the dangers, and the relevant conduct took place
prior to September 14, 2014, Plaintiff has stated a bodily integrity claim
against Croft, Glasgow, and Johnson.
e) Defendants Busch and Prysby
With respect to Busch and Prysby, the relevant pre-September
2014 facts were also set forth in Marble.
Plaintiffs allege that Busch was involved in resolving the
regulatory hurdles to using Flint River water. (Id. at
PageID.5173–5176.) For example, he helped obtain an
Administrative Consent Order (“ACO”) that was critical to
allowing the City of Flint to begin using the FWTP, although
the plant was “nowhere near ready to begin distributing
34
water.” (Id. at PageID.5176.) Plaintiffs allege that Prysby
reviewed and approved the permit “that was the last approval
necessary for the use of the Flint Water Treatment Plant.” (Id.
at PageID.5081, 5179.)
Moreover, shortly before the switch, the FWTP’s water
quality supervisor wrote to Prysby and Busch that he had
inadequate staff and resources to properly monitor the water.
(Id. at PageID.5080.) As a result, he informed Prysby and
Busch, “I do not anticipate giving the OK to begin sending
water out anytime soon. If water is distributed from this plant
in the next couple of weeks, it will be against my direction.”
(Id.) But Prysby and Busch did not act on this warning.
Id. at 997 (citing Master Complaint from Walters, No. 17-10164, ECF No.
185-2.) The Court found that, based on these facts, Busch and Prysby
knew of and did infer a substantial risk of serious harm to Flint water
users, and showed a callous disregard for Marble’s right to bodily
integrity. These facts apply with equal force to Bacon. Busch and Prysby
argue that “[t]he first allegation that Busch or Prysby had knowledge of
a legionella issue in Flint is alleged to be March 10, 2015, six months
after Plaintiff’s alleged contraction.” (ECF No. 91, PageID.1301.)
However, the Court has already rejected this contention in Brown and
Marble.
[T]he risks of using Flint River water channeled through the
FWTP were substantial. The complaint alleges that many of
35
these MDEQ Defendants knew as early as May 2014 that
Flint’s water was contaminated in ways that could be life
threatening. (Id. at PageID.5130–5131, 5140–5141.) Even if
the MDEQ Defendants were not aware of legionella bacteria
in particular by the time of Odie Brown’s death, the facts
alleged plausibly show that Busch, . . . and Prysby were aware
of the dangerous condition of the City’s water supply before
she died.
Brown, 2020 WL 1503256, at * 10 (citing Walters, No. 17-10164, ECF No.
185-2); see also Marble, 453 F. Supp. 3d at 996–997. Accordingly, Busch
and Prysby’s motion to dismiss Plaintiff’s bodily integrity claim is denied.
Plaintiff’s bodily integrity claim against Busch and Prysby may continue.
f) Defendant Rosenthal
With respect to Rosenthal, the Walters Master Complaint—adopted
in full by Plaintiff here—contains essentially the same allegations
related to the plaintiffs’ bodily integrity claims in Carthan. Walters, 2019
WL 3530874, at *18. On appeal, the Sixth Circuit summarized
Rosenthal’s alleged pre-September 2014 conduct that applies equally to
Bacon in this case.
On April 16, 2014, the week before the switch to the Flint River,
Rosenthal received an email from Michael Glasgow, stating, “[I]t looks as
if we will be starting the plant up tomorrow and are being pushed to start
36
distributing water as soon as possible. . . . I would like to make sure we
are monitoring, reporting and meeting requirements before I give the OK
to start distributing water.” Carthan, 960 F.3d at 314. (citing Amended
Complaint in Carthan, No. 16-10444, ECF No. 349, PageID.11804.) And
the very next day, Glasgow informed the MDEQ that “the FWTP was not
fit to begin operations and that ‘management’ was not listening to him.”
Id. The Sixth Circuit also noted that, “[b]ack in May 2014, MDEQ
officials—including Busch, Prysby, and Rosenthal—knew that [total
trihalomethane] levels were above the EPA’s maximum contaminant
level but did nothing, even as residents raised concerns about the water.”
Id. at 315 (citing Master Complaint in Carthan, No. 16-10444, ECF No.
349, PageID.11813–14.). Moreover, in the summer of 2014, the Michigan
Department of Health and Human Services (“MDHHS”) reported an
outbreak of Legionnaires’ disease, which occurs when water droplets
contaminated with legionella bacteria are inhaled. (Id.) These events all
took place before Bacon became ill.
The relevant allegations that the Sixth Circuit in Carthan found
sufficient to state a claim against Rosenthal for bodily integrity are that
Rosenthal was the MDEQ Water Quality Analyst who “did not stop the
37
switch to the Flint River in spite of Glasgow’s warning that the FWTP
was not ready.” Id. at 327. That Rosenthal “knew as early as May 2014
that the water contained high TTHM levels that were above regulation.
. . and did nothing.” Id. These same facts pleaded in the Walters Master
Complaint are sufficient to show that Rosenthal knew of and did infer a
substantial risk of serious harm to Flint water users, including Bacon.9
Further, these allegations are adequate to show that Rosenthal callously
disregarded Bacon’s right to bodily integrity. Rosenthal’s motion to
dismiss is denied, and Plaintiff’s claim against him may continue.
g) Defendant City of Flint
Plaintiff alleges the City of Flint is liable under 42 U.S.C. §1983 as
a result of the unconstitutional actions taken by Earley and Ambrose.
(Walters, No. 17-10164, ECF No. 185-2, PageID.5051–52, 5055–56.)
Under Monell v. Dep’t of Soc. Servs. of the City of New York, a plaintiff
may bring a § 1983 claim against a city for the unconstitutional conduct
of its employees only if the employees’ conduct implemented a policy
This conclusion still stands even without the facts cited in Carthan regarding
the September 2014 MDHHS report regarding lead poisoning levels in children being
higher than usual, the officials’ October 2014 realization that bacterial contamination
partly stemmed from the over-75-year-old-pipes, or any of the other later-in-time
facts. Carthan, 960 F.2d at 315.
9
38
“officially adopted and promulgated by that body’s officers.” 436 U.S. 658,
690 (1978). However, a municipality “cannot be held liable solely because
it employs a tortfeasor.” Id. at 691. Liability will only attach where the
policy or custom was the “moving force” behind the constitutional
violation. Powers v. Hamilton Cty. Pub. Def. Comm’n, 501 F.3d 592, 607
(6th Cir. 2007).
In Carthan, the Court held that Earley and Ambrose “were final
decisionmakers for Flint with respect to the decision to provide residents
with contaminated water.” 384 F. Supp. 3d at 865 (citing Carthan, 329 F.
Supp. 3d at 421–22). As such, “their actions represented official policy
and Flint could be held liable for their conduct insofar as it violated
plaintiffs’ rights.” Carthan, 329 F. Supp. 3d at 422.
Here, even though Plaintiff has conceded to dismissal of Earley and
Ambrose (ECF No. 105, PageID.1476), she states a claim for Monellbased bodily integrity against the City of Flint for the same reasons set
forth in Carthan and Brown. Carthan, 329 F. Supp. 3d at 422; Brown,
2020 WL 1503256, at * 14.
3. Wealth-Based Equal Protection Claim
39
Plaintiff alleges that MDEQ Defendants, State Defendants, and
City Defendants violated her right to be free from wealth-based
discrimination. (ECF No. 86, PageID.1189.) Plaintiff’s wealth-based
equal protection allegations are based solely on the allegations set forth
in the Master Complaint from Walters. In Walters, the Court analyzed
and dismissed the plaintiffs’ wealth-based discrimination claims because
the plaintiffs failed to identify how their treatment differed from a
similarly situated class of persons. Walters, 2019 WL3530874, at *20. The
Court adopts these conclusions from Walters, and Plaintiff’s wealthbased equal protection claim is dismissed.
4. Professional Negligence Claim
Plaintiff also alleges a professional negligence claim against
Defendants LAN, LAD, and Rowe. (ECF No. 86, PageID.1189.) Only LAN
and LAD moved to dismiss. However, neither LAN nor LAD have
presented any arguments that differ from the arguments presented and
rejected in Walters. 2019 WL 3530874, at *40. For the reasons set forth
in Walters, LAN’s motion to dismiss is denied. Plaintiff’s claims for
professional negligence against LAN and LAD may go forward.
5. Punitive Damages Claim
40
Plaintiff also incorporates the Punitive Damages claim from the
Master Complaint in Walters against all Defendants. (ECF No. 86,
PageID.1189 (Walters, No. 17- 10164, ECF No. 185-2, PageID.5234).)
MDEQ Defendants, State Defendants, and LAN move to dismiss. (ECF
No. 89, 91.) City Defendants and LAD incorporate their motions to
dismiss this claim in other cases. (ECF No. 93, PageID.1327; ECF No. 90,
PageID.1206.)
Punitive damages may be awarded in § 1983 actions “when the
defendant’s conduct is shown to be motivated by evil motive or intent, or
when it involves reckless or callous indifference to the federally protected
rights of others.” King v. Zamiara, 788 F.3d 207, 216 (6th Cir. 2015)
(quoting Smith v. Wade, 461 U.S. 30, 56 (1983)). Based on the allegations
set forth in the above bodily integrity section of this Opinion and Order,
Plaintiff plausibly pleads both recklessness and indifference to the right
to bodily integrity against Defendants Snyder, Croft, Glasgow, Johnson,
Busch, Prysby, Rosenthal, and the City of Flint (Monell-liability). As a
result, Plaintiff may continue to seek punitive damages against these
Defendants with respect to her remaining § 1983 bodily integrity claim.
41
Plaintiff also alleges she is entitled to punitive damages because
she brought professional negligence claims against LAD and Rowe.
Plaintiff acknowledges that these issues were already litigated in Brown
and Marble. There, the Court dismissed the plaintiffs’ claims for punitive
damages related to professional negligence, because the plaintiffs in
those cases acknowledged that punitive damages are not available for
negligence claims. See Marble, 453 F. Supp. 3d at 1010; Brown, 2020 WL
1503256, at *16. The result here is no different. Plaintiff’s punitive
damages claim against LAN and LAD under a professional negligence
theory are dismissed.
Rowe answered the complaint and did not move to dismiss this
claim. However, in light of this decision, Rowe may file a motion under
Rule 12(c) within sixty days, which is Monday December 21, 2020.
6. Joint and Several Liability and Exemplary Damages
Plaintiff acknowledges that her assertions of joint and several
liability and exemplary damages are identical to those rejected in Marble,
Brown, and Walters. (ECF No. 101, PageID.1394.) While she disagrees
with the Court’s rulings in those cases, Plaintiff provides no basis for a
different result here. (Id.) The Court agrees that the rulings in Marble,
42
Brown, and Walters apply and dictate the same result here. Accordingly,
Plaintiff’s assertions of joint and several liability and claim for exemplary
damages are dismissed.
V.
Conclusion
Defendants’ motions to dismiss Plaintiffs’ Short Form Complaint
are granted in part and denied in part. Specifically, Defendants’ motions
to dismiss:
Plaintiff’s wrongful death claim (Count XIII) is
GRANTED as to all Defendants (except Rowe), because
Plaintiff did not plead any facts to demonstrate that
Bacon’s death, or injuries resulting in death, were
caused by legionella exposure or, in turn, by any
wrongful act, neglect or fault Defendants;
Plaintiff’s state-created danger claim (Count I) is
GRANTED as to all Defendants;
Plaintiff’s bodily integrity claim (Count II) is GRANTED
with respect to Dillon, Cook, and the City of Flint, but
DENIED with respect to Snyder, Croft, Glasgow,
Johnson, Busch, Prysby, and Rosenthal;
Plaintiff’s wealth-based equal protection claim (Count
IV) is granted as to all Defendants;
43
Plaintiff’s punitive damages claim (Count VIII) is
GRANTED with respect to Plaintiffs’ professional
negligence claims against LAN and LAD, but DENIED
with respect to Plaintiff’s § 1983 claims; and
Plaintiff’s
request
for
exemplary
damages
and
allegations of joint and several liability are GRANTED.
Plaintiff’s request that she be given leave to amend is DENIED.
As set forth above, Rowe may file a motion under Rule 12(c) as to
Plaintiff’s wrongful death and punitive damages claims within sixty
days, which is Monday December 21, 2020.
VI. Order
IT IS ORDERED THAT,
MDEQ Defendants’ motion to dismiss (ECF No. 91) is GRANTED
in part and DENIED in part; City Defendants’ motion to dismiss (ECF
No. 93) is GRANTED in part and DENIED in part; LAN and LAD’s
motions to dismiss (ECF Nos. 89, 90) are GRANTED in part and
DENIED in part.
As a result, Plaintiff’s bodily integrity claims against Defendants
Snyder, Croft, Glasgow, Johnson, Busch, Prysby, and Rosenthal will
44
proceed; her professional negligence claims against LAN and LAD will
proceed; and Plaintiff may continue to request punitive damages with
respect to her remaining § 1983 claims. All of Plaintiff’s other claims are
dismissed except as to Rowe as set forth above.
IT IS SO ORDERED.
Dated: October 22, 2020
Ann Arbor, Michigan
s/Judith E. Levy
JUDITH E. LEVY
United States District Judge
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on October 22, 2020.
s/William Barkholz
WILLIAM BARKHOLZ
Case Manager
45
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