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Guertin v. Michigan

United States Court of Appeals for the Sixth Circuit

June 6, 2018, Argued; January 4, 2019, Decided; January 4, 2019, Filed

File Name: 19a0003p.06

Nos. 17-1698 /1699 /1745 /1752 /1769


 [*915]  [***2]   GRIFFIN, Circuit Judge.

This case arises out of the infamous government-created environmental disaster commonly known as the Flint Water Crisis. As a cost-saving measure until a new water authority was to become operational, public officials switched the City of Flint municipal water supply from the Detroit Water and Sewerage Department (DWSD) to the Flint River to be processed by an outdated and previously mothballed water treatment plant. With the approval of State of Michigan regulators and a professional engineering firm, on April 25, 2014, the City began dispensing drinking water to its customers without adding chemicals to counter the river water's known corrosivity.

 [***3]  The harmful effects were as swift as they were severe. Within days, residents complained of foul smelling and tasting water. Within weeks, some residents' hair began to fall out and their skin developed rashes. And within a year, there were positive tests for E. coli, a spike in deaths from Legionnaires' disease, and reports of dangerously high blood-lead levels in Flint children. All of this resulted because the [**4]  river water was 19 times more corrosive than the water pumped from Lake Huron by the DWSD, and because, without corrosion-control treatment, lead leached out of the lead-based service lines at alarming rates and found its way to the homes of Flint's residents. The crisis was predictable, and preventable. See generally Mason v. Lockwood, Andrews & Newnam, P.C., 842 F.3d 383, 387 (6th Cir. 2016).

Plaintiffs Shari Guertin, her minor child E.B., and Diogenes Muse-Cleveland claim personal injuries and damages from drinking and bathing in the lead-contaminated water. Plaintiffs' complaint asserted various claims against numerous state, city, and private-actor defendants. In response to motions to dismiss, the district court granted in part and denied in part the motions. In its written order, the court dismissed many of the original claims and original defendants. Plaintiffs have not filed a cross appeal. The defendants who were not dismissed now appeal and are collectively referred to as "defendants" throughout this opinion. The plaintiffs' sole remaining claim is that defendants violated their right to bodily integrity as guaranteed by the Substantive Due Process Clause of the Fourteenth Amendment. They bring this claim pursuant to 42 U.S.C. § 1983, under which "an individual may bring a private cause of action against [**5]  anyone who, under color of state law, deprives a person of rights, privileges, or immunities secured by the Constitution or conferred by federal statute." Wurzelbacher v. Jones-Kelley, 675 F.3d 580, 583 (6th Cir. 2012).

On this appeal, we decide two substantial issues of public importance. First, viewing each defendant individually, did the district court err in denying defendants' motions to dismiss based upon qualified immunity? Specifically, did plaintiffs plead a plausible Fourteenth Amendment  [*916]  Due Process violation of their right to bodily integrity and was such a constitutional  [***4]  right clearly established when the defendants acted? We join the United States District Court for the Eastern District of Michigan, In re Flint Water Cases, 329 F. Supp. 3d 369 (E.D. Mich. 2018), vacated on other grounds (Nov. 9, 2018), and Guertin v. Michigan, 2017 U.S. Dist. LEXIS 85544, 2017 WL 2418007 (E.D. Mich. June 4, 2017), the Michigan Court of Appeals, Mays v. Snyder, 323 Mich. App. 1, 916 N.W.2d 227 (Mich. Ct. App. 2018), and the Michigan Court of Claims, Mays v. Snyder, No. 16-000017-MM (Mich. Ct. Cl. Oct. 26, 2016),1 in holding that plaintiffs have pled a plausible Due Process violation of bodily integrity regarding some of the defendants. For the reasons that follow, we affirm the district court's order denying the motions to dismiss based upon qualified immunity regarding defendants Howard Croft, Darnell Earley, Gerald Ambrose, Liane Shekter-Smith,2 Stephen Busch, Michael Prysby, and Bradley [**6]  Wurfel. However, we reverse the denial of the motions to dismiss regarding defendants Daniel Wyant, Nick Lyon, Eden Wells, Nancy Peeler, and Robert Scott because plaintiffs' complaint alleges mere negligence, and not a constitutional violation against them.

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912 F.3d 907 *; 2019 U.S. App. LEXIS 200 **; 2019 FED App. 0003P (6th Cir.) ***

SHARI GUERTIN, individually and as next friend of her child, E.B., a minor; DIOGENES MUSE-CLEVELAND, Plaintiffs-Appellees, v. STATE OF MICHIGAN, et al., Defendants, CITY OF FLINT, MICHIGAN, HOWARD CROFT, DARNELL EARLEY, and GERALD AMBROSE (17-1699); LIANE SHEKTER-SMITH, DANIEL WYANT, STEPHEN BUSCH, MICHAEL PRYSBY, and BRADLEY WURFEL (17-1745); NANCY PEELER (17-1752); ROBERT SCOTT (17-1769); EDEN WELLS and NICK LYON (17-1698), Defendants-Appellees.

Subsequent History: Rehearing denied by, Rehearing, en banc, denied by Guertin v. Michigan, 924 F.3d 309, 2019 U.S. App. LEXIS 14480 (6th Cir. Mich., May 16, 2019)

Stay denied by Guertin v. Michigan, 2019 U.S. App. LEXIS 16084 (6th Cir., May 29, 2019)

US Supreme Court certiorari denied by City of Flint v. Guertin, 2020 U.S. LEXIS 603 (U.S., Jan. 21, 2020)

US Supreme Court certiorari denied by Busch v. Guertin, 2020 U.S. LEXIS 618 (U.S., Jan. 21, 2020)

Prior History:  [**1] Appeal from the United States District Court for the Eastern District of Michigan at Ann Arbor. No. 5:16-cv-12412—Judith E. Levy, District Judge.

Guertin v. Mich., 2017 U.S. Dist. LEXIS 85544 ( E.D. Mich., June 5, 2017)


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