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United States Court of Appeals RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 20a0161p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT IN RE: FLINT WATER CASES. ┐ ___________________________________________ │ │ │ LUKE WAID, Parent and Next-Friend of SR, a minor, │ et al., > Nos. 19-1425/1472/1477/1533 Plaintiffs, │ │ │ ELNORA CARTHAN et al., │ Plaintiffs-Appellees, │ │ v. │ │ │ DARNELL EARLEY, GERALD AMBROSE, HOWARD │ CROFT, MICHAEL GLASGOW, DAUGHERTY JOHNSON, │ and CITY OF FLINT, MICHIGAN (19-1425); RICHARD │ DALE SNYDER, former Governor of Michigan, ANDY │ DILLON, former Treasurer of Michigan, and │ GRETCHEN WHITMER, present Governor of Michigan │ (19-1472); LIANE SHEKTER-SMITH, STEPHEN BUSCH, │ PATRICK COOK, MICHAEL PRYSBY, AND BRADLEY │ WURFEL (19-1477); and ADAM ROSENTHAL (19-1533), │ Defendants-Appellants. │ ┘ Appeal from the United States District Court for the Eastern District of Michigan at Ann Arbor. No. 5:16-cv-10444—Judith E. Levy, District Judge. Argued: April 27, 2020 Decided and Filed: May 22, 2020 Before: MERRITT, MOORE, and MURPHY, Circuit Judges. Nos. 19-1425/1472/1477/1533 Waid et al. v. Snyder et al. Page 2 _________________ COUNSEL ARGUED: William Y. Kim, CITY OF FLINT LAW DEPARTMENT, Flint, Michigan, for Appellant City of Flint, and Christopher J. Marker, O’NEIL, WALLACE & DOYLE, P.C., Saginaw, Michigan, for Appellant Glasgow in 19-1425. Margaret A. Bettenhausen, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan for Appellants in 19-1472. Charles E. Barbieri, FOSTER, SWIFT, COLLINS & SMITH, P.C., Lansing, Michigan, for Appellants in 19-1477. James A. Fajen, FAJEN AND MILLER, PLLC, Ann Arbor, Michigan, for Appellant in 19-1533. Samuel R. Bagenstos, Ann Arbor, Michigan, for Appellees. ON BRIEF: William Y. Kim, CITY OF FLINT LAW DEPARTMENT, Flint, Michigan, Frederick A. Berg, Jr., BUTZEL LONG, P.C., Detroit, Michigan, Sheldon H. Klein, Joseph E. Richotte, BUTZEL LONG, P.C., Bloomfield Hills, Michigan, Christopher J. Marker, O’NEIL, WALLACE & DOYLE, P.C., Saginaw, Michigan, Todd R. Perkins, THE PERKINS LAW GROUP PLLC, Detroit, Michigan, Alexander S. Rusek, WHITE LAW, PLLC, Okemos, Michigan, Barry A. Wolf, Flint, Michigan, Edwar A. Zeineh, LAW OFFICE OF EDWAR A. ZEINEH, Lansing, Michigan, for Appellants in 19-1425. Margaret A. Bettenhausen, Richard S. Kuhl, Nathan A. Gambill, Zachary C. Larsen, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan for Appellants in 19-1472. Charles E. Barbieri, FOSTER, SWIFT, COLLINS & SMITH, P.C., Lansing, Michigan, Michael J. Pattwell, Jay M. Berger, CLARK HILL PLC, Lansing, Michigan, Thaddeus E. Morgan, FRASER, TREBILCOCK, DAVIS & DUNLAP, Lansing, Michigan, Philip A. Grashoff, Jr., SMITH HAUGHEY RICE & ROEGGE, Grand Rapids, Michigan, for Appellants in 19-1477. James A. Fajen, FAJEN AND MILLER, PLLC, Ann Arbor, Michigan, James W. Burdick, BURDICK LAW, P.C., Bloomfield Hills, Michigan, for Appellant in 19-1533. Samuel R. Bagenstos, Ann Arbor, Michigan, for Appellees. MOORE, J., delivered the opinion of the court in which MERRITT, J., joined. MURPHY, J. (pp. 39–45), delivered a separate opinion concurring in the judgment in part and dissenting in part. _________________ OPINION _________________ KAREN NELSON MOORE, Circuit Judge. This is a case about the Flint Water Crisis. From 2014 to 2015, City of Flint and Michigan State officials caused, sustained, and covered up the poisoning of an entire community with lead- and legionella-contaminated water. The crisis started in April 2014 when the City began delivering Flint River water to its predominantly poor and African-American residents, knowing that it was not treated for corrosion. In a matter of weeks, Flint residents reported that there was something wrong with the way the water looked, Nos. 19-1425/1472/1477/1533 Waid et al. v. Snyder et al. Page 3 tasted, and smelled, and that it was causing rashes. In response, the City treated the water with additional chlorine—exacerbating the corrosion in the old water lines. The corrosion contaminated the water with hazardous levels of lead and caused an outbreak of Legionnaires’ disease. State and City officials failed to stop the delivery of Flint River water and obstinately assured the public that the water was safe, when they knew it was not. Now, Flint residents can expect to see their children permanently developmentally stunted. It has been six years since the start of the crisis and corroded pipes still infect the water and poison the people of Flint. The question before us is whether these Defendants-Appellants allegedly responsible for the crisis are immune from suit. This appeal arises out of a consolidated class action in the In re Flint Water Cases litigation. It follows from the denial of motions to dismiss certain defendants based on qualified and absolute immunity. The Plaintiffs-Appellees are individuals affected by the Flint Water Crisis.1 The Defendants-Appellants are City and State officials and the City of Flint.2 Plaintiffs- Appellees claim that City and State officials’ deliberate indifference to their being poisoned violated their substantive due process right to bodily integrity, a constitutional claim we have already recognized in Guertin v. Michigan, 912 F.3d 907, 921 (6th Cir. 2019), cert. denied, 140 S. Ct. 933 (2020). Acknowledging that Guertin controls, Defendants-Appellants contend that their alleged individual conduct does not plausibly amount to a constitutional violation. Or, in the case of the City of Flint and Governor Whitmer,3 that the Eleventh Amendment requires their dismissal from this action—an argument we rejected in prior appeals. See Guertin, 912 F.3d at 936; Boler v. Earley, 865 F.3d 391, 412–13 (6th Cir. 2017), cert. denied, 138 S. Ct. 1281 (2018). 1We use the term “Plaintiffs” when referring to all plaintiffs belonging to the putative class, and we use the term “Plaintiffs-Appellees” when referring solely to the plaintiffs that are party to this appeal. 2We use the term “Defendants” when referring to all named defendants, and we use the term “Defendants- Appellants” when referring solely to the defendants that are party to this appeal. 3Governor Whitmer was elected into office in January 2019 and continues to serve as Michigan’s Governor at the time of this writing. For the sake of consistency with its earlier Flint Water decisions, the district court solely referred to Governor Snyder in its opinion, even where claims are made against the present Governor in her official capacity. R. 798 (Op. & Order at 8 n.4) (Page ID #21110). Nos. 19-1425/1472/1477/1533 Waid et al. v. Snyder et al. Page 4 We AFFIRM the district court’s denial of the motions to dismiss with respect to every Defendant-Appellant except Treasurer Dillon. We REMAND for the district court to decide whether Dillon should be dismissed in light of its decision in Brown v. Snyder (In re Flint Water Cases), No. 18-cv-10726, 2020 WL 1503256, at *9 (E.D. Mich. Mar. 27, 2020). I. BACKGROUND4 Plaintiffs allege that, from June 2013 through April 25, 2014, City and State officials created a public health crisis. R. 620-3 (Fourth Am. Compl. at 47–48, ¶ 133) (Page ID #17850– 51). Officials “ordered and set in motion the use of highly corrosive and toxic Flint River water knowing that the [treatment plant] was not ready.” Id. “By January 29, 2015, State officials understood that the public health crisis was caused by the corrosion of the entire infrastructure of the Flint water system. Yet no action was taken to warn the public of the health crisis or to correct the harm.” Id. at 81, ¶ 238 (Page ID #17884).5 Accordingly, “the complaint alleges constitutional violations that occurred during two relevant periods: (1) the period leading up to the April 2014 switch to the Flint River, during which Defendants were callously indifferent to the facts showing that the water would be dangerous; and (2) the 18-month period from April 2014 to October 2015, during which Defendants were callously indifferent to the mounting evidence that the water was actually causing serious harm, including death.” Appellees Br. at 4–5. A. The Switch to the Flint River The City of Flint did not always receive its water from the Flint River. For decades, the City received clean water from Lake Huron through the Detroit Water and Sewerage Department (“DWSD”). R. 620-3 (Fourth Am. Compl. at 34–35, ¶¶ 86–91) (Page ID #17837–38). At some 4The facts are taken from Plaintiffs’ Fourth Amended Complaint, as we take all factual allegations to be true at this stage. See Guertin, 912 F.3d at 916. 5Some Defendants-Appellants contend that they were not aware that the water was contaminated. They point out that Plaintiffs themselves allege that private engineering firms provided inaccurate information about water quality to government officials. See R. 620-3 (Fourth Am. Compl. at 51–80, ¶¶ 148–232) (Page ID #17854–83). But those allegations do not negate the separate allegations that City and State officials nevertheless had knowledge from other sources that the water was contaminated. Therefore, the role of private engineering firms is irrelevant at the motion to dismiss stage. Nos. 19-1425/1472/1477/1533 Waid et al. v. Snyder et al. Page 5 point, however, the City became concerned with the DWSD’s cost and decided to look into alternative water sources. Id. at 35–37, ¶ 92 (Page ID #17838–40). In 2011, City officials had a study conducted to see if the Flint River could be used as a safe water source if it was processed through the old Flint Water Treatment Plant (“FWTP”). Id. at 33–34, ¶¶ 82–86 (Page ID #17836–37); id. at 36–37, ¶ 92 (Page ID #17839–40). The reports issued from the study concluded that Flint River water could meet regulatory requirements if properly treated—but that would require over $69 million in improvements to the FWTP, including improvements that would protect the water from corrosion.
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