Snyder Op

5:15-cv-14002-JCO-MKM Doc # 147 Filed 08/08/16 Pg 1 of 59 Pg ID 2813
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MELISSA MAYS, et al., Case no. 15-cv-14002
Plaintiffs, Hon. John Corbett O’Meara

v.
Mag. Judge Mona K. Majzoub
GOVERNOR RICK SNYDER, ORAL ARGUMENT REQUESTED
in his official capacity, et al.
Defendants.
PLAINTIFFS’ RESPONSE TO STATE DEFENDANTS’ MOTION TO

DISMISS UNDER FED. R. CIV. P. 12(b)(1) AND (6)
TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................................. .iii
CONCISE STATEMENT OF ISSUES PRESENTED ............................................ix
CONTROLLING OR MOST APPROPRIATE AUTHORITY ................................ x

INTRODUCTION ..................................................................................................... 1
FACTUAL BACKGROUND .................................................................................... 3
A. Snyder And Dillon Approved The Use Of The Flint River

Water As An Interim Drinking Water Source Knowing That
It Was Unfit For Human Consumption....................................... 3
B. State Defendants Exacerbated The Harm To The Public By

Ignoring Citizen Complaints Of Serious Illness From
Exposure To Flint River Water ................................................... 5
C. Snyder And Lyon Exacerbated The Harm To The Public By
Knowingly Permitting State Agencies To Conceal The True
Threat To Public Health And Delaying The Implementation
Of An Effective Remedial Plan .................................................. 7
LEGAL STANDARDS ............................................................................................. 9

ARGUMENT ............................................................................................................. 9
I. THIS COURT HAS SUBJECT-MATTER JURISDICTION
OVER PLAINTIFFS’ FEDERAL-LAW CLAIMS ............................ 10
A. Defendants Fail To Meet Their Burden Of Establishing

Preclusion Of Plaintiffs’ Constitutional Claims ....................... 10
B. Plaintiffs’ Claims For Prospective Injunctive Relief Are Not

Jurisdictionally Barred By The Eleventh Amendment ............. 15
II. PLAINTIFFS HAVE ADEQUATELY PLED EACH CLAIM
UNDER THE CONSTITUTION AND ALLEGED FACTS
JUSTIFYING AN EXCEPTION TO QUALIFIED IMMUNITY ..... 20
A. Plaintiffs Have Pled Two Substantive Due Process Claims ..... 20
i
1. Plaintiffs Have Adequately Alleged State-Created

Danger............................................................................. 22
2. Plaintiffs Properly Pled Violation Of Their Rights To

Bodily Integrity............................................................... 25
B. Plaintiffs Have Adequately Pled An Equal Protection Claim .. 27

1. Plaintiffs Have Alleged A Fundamental Right Is
Involved .......................................................................... 29
2. Plaintiffs Have Alleged A Viable Race-Based Equal
Protection Claim ............................................................. 29
3. Plaintiffs Have Alleged A Viable Wealth-Based

Equal Protection Claim ................................................... 34
4. Plaintiffs Have Properly Alleged Liability Against
The State ......................................................................... 36
C. Plaintiffs Have Sufficiently Pled The Elements Of Their
Claim For Conspiracy (Count VI) ............................................ 37
D. Snyder, Lyon, And Dillon Are Not Entitled To Qualified

Immunity ................................................................................... 40
III. PLAINTIFFS HAVE PROPERLY PLED A VIOLATION OF

ELCRA REQUIRING THIS COURT TO EXERCISE
SUPPLEMENTAL JURISDICTION.................................................. 43
CONCLUSION ........................................................................................................ 45
ii
TABLE OF AUTHORITIES
Page(s)
Cases
In re Agent Orange,
475 F. Supp. 928 (E.D.N.Y. 1979) ..................................................................... 26
Alexander v. Youngstown Bd. of Ed.,
675 F.2d 787 (6th Cir. 1982) .............................................................................. 32
Anderson v. Creighton,
483 U.S. 635 (1987) ............................................................................................ 42
Aschroft v. al-Kidd,
563 U.S. 731 (2011) ............................................................................................ 41
Bartell v. Lohiser,
215 F.3d 550 (6th Cir. 2000) ........................................................................37, 39
Bass v. Robinson,
167 F.3d 1041 (6th Cir. 1999) ............................................................................ 38
Batson v. Kentucky,
476 U.S. 79 (1986) ........................................................................................27, 33
Baynes v. Cleland,
799 F.3d 600 (6th Cir. 2015) ..................................................................40, 41, 42
Bernal v. Fainter,
467 U.S. 216 (1984) ............................................................................................ 28
Browder v. Tipton,
630 F.2d 1149 (6th Cir. 1980) ............................................................................ 37
Charvat v. E. Ohio Reg’l Wastewater Auth.,

246 F.3d 607 (6th Cir. 2001) ............................................................11, 12, 13, 14
City of Rancho Palos Verdes, Cal. v. Abrams,
544 U.S. 113 (2005) ..........................................................................11, 12, 13, 14
Cmtys. For Equity v. MHSAA,
459 F.3d 676 (6th Cir. 2006) .............................................................................. 12
iii
Cnty. of Sacramento v. Lewis,

523 U.S. 833 (1998) ............................................................................................ 21
Concerned Pastors for Social Action v. Khouri,

No. 16-10277, 2016 U.S. Dist. LEXIS 88217 (E.D. Mich. July 7,
2016) ................................................................................................................... 19
Coshow v. City of Escondido,
34 Cal. Rptr. 3d 19 (Cal. Ct. App. 2005) ......................................................38, 39
Stiles, ex rel. D.S. v. Grainger Cnty., Tenn.,
819 F.3d 834 (6th Cir. 2016) ..................................................................22, 23, 29
Dockweiler v. Wentzell,
425 N.W.2d 468 (Mich. Ct. App. 1988) ............................................................. 44
Doe v. Claiborne County,
103 F.3d 495 (6th Cir. 1996) .............................................................................. 26
Edelman v. Jordan,
415 U.S. 651 (1974) ................................................................................16, 17, 20
Ely v. Velde,
451 F.2d 1130 (4th Cir. 1971) ............................................................................ 26
Farm Labor Org. Comm. v. Ohio State Hwy. Patrol,

308 F.3d 523 (6th Cir. 2002) ............................................................27, 31, 32, 33
Fitzgerald v Barnstable School Committee,
555 U.S. 246 (2009) ..........................................................................12, 13, 14, 15
Global Tech., Inc. v. Yubei (XinXiang) Power Steering Sys. Co.,

807 F.3d 806 (6th Cir. 2015) ................................................................................ 9
Graham v. Richardson,
403 U.S. 365 (1971) ............................................................................................ 17
Grawey v. Drury,
567 F.3d 302 (6th Cir. 2010) .............................................................................. 41
Green v. Mansour,
474 U.S. 64 (1985) .............................................................................................. 19
iv
Griffin v. Breckenridge,
403 U.S. 88 (1971) ........................................................................................37, 39
Grutter v. Bollinger,
539 U.S. 306 (2003) ............................................................................................ 28
Harper v. Virginia Board. of Elections,

383 U.S. 663 (1966) ............................................................................................ 35
Haynes v. Neshewat,
729 N.W.2d 488 (Mich. 2007)............................................................................ 43
Hope v. Pelzer,
536 U.S. 730 (2002) ......................................................................................41, 43
Hui v. Castaneda,
559 U.S. 799 (2010) ............................................................................................ 11
Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ.,

542 F.3d 529 (6th Cir. 2008) ........................................................................21, 22
Hunter v. Underwood,
471 U.S. 222 (1985) ............................................................................................ 32
Hutto v. Finney,
437 U.S. 678 (1978) ............................................................................................ 17
Johnson v. Bredesen,
624 F.3d 742 (6th Cir. 2010) ........................................................................29, 36
Jones v. Reynolds,
438 F.3d 685 (6th Cir. 2006) ........................................................................23, 25
Kentucky v. Graham,
473 U.S. 159 (1985) ............................................................................................ 37
Lawrence v. Texas,
539 U.S. 558 (2003) ............................................................................................ 34
Levin v. Madigan,
692 F.3d 607 (7th Cir. 2012) .............................................................................. 12
v
Loving v. Virginia,
388 U.S. 1 (1967) ................................................................................................ 34
Mattoon v. City of Pittsfield,

980 F.2d 1 (1st Cir. 1992) ................................................................................... 11
McGowan v. Maryland,
366 U.S. 420 (1961) ............................................................................................ 27
McQueen v. Beecher,
433 F.3d 460 (6th Cir. 2006) ........................................................................23, 25
Middlesex County Sewerage Authority v. National Sea Clammers,

453 U.S. 1 (1981) ..............................................................................11, 12, 13, 14
Milliken v. Bradley,
433 U.S. 267 (1977) ......................................................................................17, 18
Moon v. Mich. Reprod. & Ivf Ctr.,

No. 299623, 2011 Mich. App. LEXIS 1717 (Ct. App. Sep. 29,
2011) ................................................................................................................... 44
Moore v. Detroit School Reform Board.,

293 F.3d 352 (6th Cir. 2002) .............................................................................. 34
Obergefell v. Hodges,
135 S. Ct. 2584 (2015) ........................................................................................ 34
Phila. Indem. Ins. Co. v. Youth Alive, Inc.,
732 F.3d 645 (6th Cir. 2013) ................................................................................ 9
Phillips v. Snyder,
No. 13-cv-11370, 2014 U.S. Dist. LEXIS 162097 (E.D. Mich.
Nov. 19, 2014) .................................................................................................... 28
Pinkney v. Ohio Environmental Protection Agency,

375 F. Supp. 305 (E.D. Ohio 1974) .................................................................... 26
Range v. Douglas,
763 F.3d 573 (6th Cir. 2014) ..................................................................22, 26, 27
Reinhardt v. Dennis,
399 F. Supp. 2d 803 (W.D. Mich. 2005) ............................................................ 43
vi
Rogers v. Int’l Ass’n of Lions Clubs,

636 F. Supp. 1476 (E.D. Mich. 1986) ................................................................ 44
Sample v. Bailey,
409 F.3d 689 (6th Cir. 2005) .............................................................................. 41
San Antonio Indep. Sch. Dist. v. Rodriguez,

411 U.S. 1 (1973) ..........................................................................................28, 35
Saucier v. Katz,
533 U.S. 194 (2001) ............................................................................................ 40
Scanlan v. Texas A & M Univ.,

343 F.3d 533 (5th Cir. 2003) .............................................................................. 24
Scheuer v. Rhodes,
416 U.S. 232 (1974) ............................................................................................ 21
Smith v. Robinson,
468 U.S. 992 (1984) ..........................................................................11, 13, 14, 15
Tanner v. Armco Steel Corp.,
340 F. Supp. 532 (S.D. Tex. 1972) ..................................................................... 26
TriHealth, Inc. v. Board. of Commissioners, Hamilton County.,

430 F.3d 783 (6th Cir. 2005) .............................................................................. 34
United States v. City of Birmingham,
727 F.2d 560 (6th Cir. 1984) .............................................................................. 32
United States v. Lanier,
520 U.S. 259 (1997) ............................................................................................ 42
Van Orden v. Borough of Woodstown,
5 F. Supp. 3d 676 (D.N.J. 2014) ......................................................................... 24
Verizon Md., Inc. v. Pub. Serv. Comm’n of Maryland,

535 U.S. 635 (2002) ................................................................................16, 18, 19
Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,

429 U.S. 252 (1977) ............................................................................................ 33
vii
Washington v. Davis,
426 U.S. 229 (1976) ......................................................................................32, 34
Washington v. Glucksberg,
521 U.S. 702 (1997) ............................................................................................ 29
Ex parte Young,
209 U.S. 123 (1908) (Mot. ) ...................................................................15, 16, 19
Statutes
28 U.S.C. § 1331 ...................................................................................................... 10
28 U.S.C. § 1343(a)(3) and (4) ................................................................................ 10
28 U.S.C. § 2201 ...................................................................................................... 10
42 U.S.C. § 1983 ...............................................................................................passim

42 U.S.C. § 1985(3) .....................................................................................37, 38, 40
MCL § 37.2302(a).................................................................................................... 45
MCLA § 37.2701(b) ..........................................................................................44, 45
Michigan Elliot-Larsen Civil Rights Act ..........................................................passim
Michigan Public Act 436, MCLA §§141.1451 et seq. ............................................ 28

SDWA ...............................................................................................................passim
Other Authorities
Fed. R. Civ. P. 12(b)(1) and 12(b)(6) ........................................................................ 9
Fed. R. Evid. 201 ....................................................................................................... 1
Ron Fonger, Drain commissioner assures Genesee County customers

they aren't drinking Flint River water (Jan. 9, 2015, 1:45pm),
http://www.mlive.com/news/flint/index.ssf/2015/01/drain_commis
sioner_assures_wat.html ..................................................................................... 39
Fed. R. Civ. P. 12(b) ........................................................................................1, 2, 24
viii
CONCISE STATEMENT OF ISSUES PRESENTED

1. Whether Congress enacted the federal Safe Drinking Water Act to
preclude and serve as the exclusive remedy for the § 1983 violation of
Plaintiffs’ constitutional rights of freedom from state created danger,
freedom from discrimination on the basis of race and income, and
bodily integrity.
2. Whether the Court has authority under Ex Parte Young to grant the
prospective relief Plaintiffs seek to remedy ongoing violations by
State Defendants.
3. Whether Plaintiffs have adequately pled the requisite elements of a

state-created danger.
4. Whether Plaintiffs have adequately pled a violation of their rights to

bodily integrity.
5. Whether Plaintiffs have adequately pled a violation of the Equal
Protection Clause.
6. Whether Plaintiffs have adequately pled a claim under 42 U.S.C. §

1985(3).
7. Whether Plaintiffs have alleged violations of clearly established

constitutional rights against Governor Snyder, Andy Dillon, and Nick
Lyon to overcome qualified immunity.
8. Whether Plaintiffs have adequately plead a claim under Michigan’s
Elliott-Larsen Civil Rights Act (“ELCRA”); and if so, whether this
Court should exercise supplement jurisdiction over the state-law
claim.
ix
CONTROLLING OR MOST APPROPRIATE AUTHORITY

Bartell v. Lohiser, 215 F.3d 550 (6th Cir. 2000)
Baynes v. Cleland, 799 F.3d 600 (6th Cir. 2015)
Charvat v. Eastern Ohio Regional Wastewater Authority, 246 F.3d 607 (6th
Cir. 2001)
Cmtys. for Equity v. Michigan High Sch. Athletic Ass’n, 459 F.3d 676 (6th Cir.
2006)
Concerned Pastors for Social Action v. Khouri, No. 16-10277, 2016 U.S. Dist.
LEXIS 88217, at * 29-30 (E.D. Mich. July 7, 2016)
Doe v. Claiborne County, 103 F.3d 495 (6th Cir. 1996)
Edelman v. Jordan, 415 U.S. 651 (1974)
Fitzgerald v. Barnstable School Committee, 555 U.S. 246 (2009)
Farm Labor Org. Comm. v. Ohio State Hwy. Patrol, 308 F.3d 523 (6th Cir.
2002)
Haynes v. Neshewat, 729 N.W.2d 488 (Mich. 2007)
Milliken v. Bradley, 433 U.S. 267 (1977)
Phillips v. Snyder, No. 13-cv-11370, 2014 WL 6474344 (E.D. Mich. Nov. 19,
2014)
Sample v. Bailey, 409 F.3d 689 (6th Cir. 2005)
Smith v. Robinson, 468 U.S. 992 (1984)
Stiles, ex rel. D.S. v. Grainger County, Tenn., 819 F.3d 834 (6th Cir. 2016)
U.S. v. Lanier, 520 U.S. 259 (1997)

42 U.S.C. § 1983
x
INTRODUCTION
No one disputes that the Flint drinking water situation has detrimentally
affected Flint residents, businesses, and public entities, and sparked
significant health and safety concerns. The State of Michigan, Governor
Snyder, and all of state government recognize the seriousness of these
concerns. . .1
With these words the State of Michigan, Governor Rick Snyder, former
State Treasurer Andy Dillon and the Michigan Department of Health and Human
Services (“MDHHS”) Director Nick Lyon2 commence their Rule 12(b) Motion to
Dismiss. Not since Dickens’ great portrayal of the fictional hypocrite Uriah Heep
have so many phony and insincere tears been publicly rendered in writing.
Surely, these Defendants had no choice but to concede that terrible things
happened to the people Flint when their water source was changed and the
devastating public health ramifications were criminally concealed. These matters
are undeniable.3 They have reverberated around the world. Yet, having poisoned an
entire community, Defendants now seek relief from litigation and from any
scrutiny.
Thus, while professing sympathy, Defendants demand that Plaintiffs’ claims
1
Defendants’ Motion to Dismiss (ECF No. 122) (hereafter “Mot.”) at 1.
2
In this Brief, Plaintiffs refer to the State of Michigan, Governor Rick Snyder,
Andy Dillon, and Nick Lyon, collectively, as “Defendants” or “State Defendants.”
3
The State Attorney General has filed criminal charges against eight (8) state
employees in two (2) separate departments of state government, the Michigan
Department of Environmental Quality (“MDEQ”) and MDHHS. This court may
take judicial notice of the States’ criminal chargers pursuant to Fed. R. Evid. 201.
See Exhibit A.
be dismissed, without even allowing the facts to be developed and proved. And
they do so in a manner that is wildly inconsistent with the generally understood
principles of Rule 12(b), peppering their Motion with disputed assertions.
Defendants’ strategy throughout their papers is to confuse Plaintiffs’
allegations with claims that may not exist and to portray those recharacterized
claims falsely (retrospective relief against the State of Michigan, the purported
right to pure drinking water, failure to properly treat Flint water under the federal
Safe Drinking Water Act (“SDWA”), respondeat superior liability, etc.) as if
Plaintiffs had actually pled them. Plaintiffs have not.
Contrary to Defendants’ attempts to distort these issues, Plaintiffs’ claims
are quite simple: these Defendants, among others, engaged in actions that caused
Plaintiffs significant bodily harm and loss of property. Defendants undertook these
actions recklessly, disregarding the known risk of harm. Once the actions were
underway and the injuries became realized, Defendants perpetuated the harms by
criminally concealing the truth and perpetuating the harm; meanwhile, Defendants
took steps to protect themselves and their brethren state employees from exposure
to the harm, and they treated Plaintiffs differently than those similarly situated in
communities with more wealth and fewer residents of color. For their injuries,
Plaintiffs seek prospective relief from the State of Michigan to interrupt ongoing
harms and money damages from Defendants sued in their individual capacities.
2
These allegations are pled in great detail in Plaintiffs’ First Amended Complaint
(ECF No. 111) (hereinafter “Amended Complaint” or “Am. Compl.”), and they set
forth violations of clearly established constitutional rights.
In sum, Defendants’ Motion fails to acknowledge or apply the proper
standards imposed by the Federal Rules and the Constitution. It falsely
recharacterizes Plaintifs’ allegations, and it misinterprets and disregards Plaintiffs’
Amended Complaint. The Motion must be denied.
FACTUAL BACKGROUND
Plaintiffs’ First Amended Complaint recounts in extensive detail
Defendants’ deliberate decision to supply Flint water users with poisonous water
from the Flint River, which resulted in severe injury to people and property.
Several catastrophic decisions by these Defendants led to what is known
world-wide as the “Flint Water Crisis.”
A. Snyder And Dillon Approved The Use Of The Flint River Water
As An Interim Drinking Water Source Knowing That It Was
Unfit For Human Consumption
From 1964 to 2014, Flint water users received their water from Lake Huron
via the Detroit Water and Sewerage Department (“DWSD”). During this 50 year
span, Flint water users enjoyed safe and fresh water in their homes and other places
of public services. Id.¶ 48.
Motivated principally by the political ambitions and pressure of Genesee
County Drain Commissioner Jeffrey Wright (“Wright”), the predominately white
3
communities north of Detroit, formed the Karegnondi Water Authority (“KWA”)
in 2009 to explore alternatives to water delivered by the DWSD. Id. ¶ 49.
From 2009 to April, 2013, Wright engaged in intense lobbying with the
Governor, Treasurer Dillon and Flint’s Emergency Managers to financially commit
the predominately black City of Flint to the project.
In April 2013, Defendants Snyder and Dillon committed Flint to the project
and authorized the KWA to build the pipeline and infrastructure as a DWSD
alternative. Id. ¶¶ 58-60. The anticipated completion date for the KWA project was
October, 2016. Id. ¶ 61.
Once the Governor approved the KWA project, state and local public
officials were required to devise an interim plan (“Interim Plan” or “Interim
Period”) to deliver water to the KWA communities while the KWA pipeline was
being constructed. Id.
The Interim Plan provided, during the Interim Period, that the predominately
black community of Flint would drink the contaminated Flint River water as its
primary drinking source while the predominately white communities would remain
with the clean DWSD water. The Governor’s own Task Force has described this
decision to be a “case of environmental injustice.”4
4
“The facts of the Flint water crisis lead us to the inescapable conclusion that this
is a case of environmental injustice. Flint residents, who are majority Black or
African American and among the most impoverished of any metropolitan area in
4
In a classic “Pork barrel politics” approach to governance, the Governor and
Treasurer Dillon participated in the decision to permit the predominately white
communities to continue with DWSD water while switching the people of Flint to
use the polluted Flint River in order to ensure the success of the favored KWA
project. This option was attractive because the money saved by using “free river
water” would then be used by Flint’s Emergency Manager to budget the necessary
upgrades of the Flint Water Treatment Plant, which had been largely dormant for
50 years. Am. Compl. ¶ 60.
The Governor and Dillon approved this option even though they knew that
the use of the Flint River as a primary drinking source had been rejected in 2011 as
“dangerous and unsafe” and that it would likely remain unsafe during the Interim
Period. Id. ¶¶ 50-51, 60-63.
In order to guarantee the success of the politically favored KWA project, the
Governor and Treasurer Dillon gambled with the health of the people of Flint and
in doing so set into motion the disastrous Flint Water Crisis.
B. State Defendants Exacerbated The Harm To The Public By

Ignoring Citizen Complaints Of Serious Illness From Exposure
To Flint River Water
By the time the Interim Plan was to be implemented in April 2014, the
the United States, did not enjoy the same degree of protection from environmental
and health hazards as that provided to other communities.” See Task Force Final
Report, Exhibit A to Am. Compl., p. 54.
5
Water Treatment Plant (“WTP”) was not up to the task of making the toxic Flint
River water usable. Am. Compl. ¶ 67, n.4. Knowing this, State officials ordered
Flint to proceed with the Interim Plan.
By June of 2014, citizen complaints about contaminated water were
mounting without the state doing anything to address these complaints. Many Flint
water users reported that the water was making them ill. Id. ¶¶ 71-72, nn. 6-7.
By October of 2014, Flint’s public health emergency was a topic of
significant discussion in the Governor’s office. The threat of deadly Legionnaires’
disease coming from exposure to the Flint River water was adding to the public
health safety crisis. General Motors discontinued water service because the Flint
River water was corroding its parts. Id. ¶¶ 73-76, nn. 7-10.
By February of 2015, the Governor was fully informed of the health crisis
unfolding in Flint. By this time, the Governor and Director Lyon knew that there
was an imminent and serious public health threat to the people of Flint caused by
exposure to the Flint River water including probable deaths caused by Legionella
bacteria found in the river water. One would expect that the well-publicized public
protests and demonstrations by the people of Flint clamoring for a return to DWSD
water would be acted upon. Yet, neither the Governor, nor state and local public
officials, took corrective action. Id. ¶¶ 87-89, n.18.
On March 5, 2015, the Governor and officials in the Governor’s office
6
realized that they had a massive public health emergency which probably included
widespread lead poisoning and began discussing distributing water filters to Flint
water users. These public officials took no action to warn or otherwise protect
Plaintiffs and the Class, and continued to conceal the true nature, extent and
severity of the public health crisis. Id. ¶¶ 93-95, nn.22-23.
By July of 2015, the public health crisis in Flint could no longer be
contained.
C. Snyder And Lyon Exacerbated The Harm To The Public By

Knowingly Permitting State Agencies To Conceal The True
Threat To Public Health And Delaying The Implementation Of
An Effective Remedial Plan
On July 9, 2015, Curt Guyette of the ACLU of Michigan and Lindsay Smith
of Michigan Public Radio reported that some Flint water samples contained high
levels of lead. This report unleashed a firestorm of public comment and concern
about the deleterious effects of being exposed to lead in Flint’s drinking water.
Am. Compl., Exhibit B, Timeline p. 11, July 9, 2015 entry.
At this point, state officials went from being silent to actively concealing and
deceiving. In July 2015, multiple agencies within the State of Michigan, including
the Governor, the Governor’s Office, the Michigan Department of Environmental
Quality (“MDEQ”), Director Lyon, and the MDHHS had actual notice of high lead
exposure and other dangers, including illness and deaths caused by Legionnaires’
disease associated with Flint water exposure. Am. Compl. ¶ 104. State Officials
7
made false and misleading statements to the public about the health crisis and
neither the Governor’s office nor Director Lyon’s office took steps to correct the
misinformation conveyed to the public by state officials. Indeed, the Michigan
Attorney General has criminally charged eight (8) (and counting) separate
employees from the MDEQ and MDHHS and alleged a criminal conspiracy
associated with the concealment of the crisis. Exhibit A.
By July 2015, Director Lyon knew that elevated blood lead levels of Flint’s
children, and an increase in the reports of Legionnaires’ disease in Genesee
County, correlated with the introduction of the corrosive river water into the Flint
water system. Lyon did not order that any action be taken to warn the public or to
remediate the public health crisis created by the actions and inactions of State and
Flint employees and officials. His concealment of these dangers exacerbated the
full-blown public health crisis underway. Id. ¶¶ 108-110, n.25.
On October 8, 2015, the Governor recognized that he could no longer
pretend that the water from the Flint River was safe or that water filters could be a
long-term solution to the state created emergency. He finally ordered Flint to re-
connect with the Detroit water system. The re-connect to DWSD took place on or
about October 16, 2015. Id. ¶¶ 118-119.
The relief efforts of State public officials have been ineffective, indeed often
frivolous, in mitigating the devastation caused by its creation of the public health
8
crisis. The ineffective relief efforts have prolonged the dangerous conditions and,
in many cases, the failed mitigation efforts have further exacerbated the effects of
the public health calamity created by the State. Id. ¶¶ 120-121.
Despite these facts, Defendants incorrectly argue that that Plaintiffs have
“lumped” all Defendants together. Mot. at 22,35. To the contrary, Plaintiffs have
alleged specific acts by each of these Defendants that caused, created, prolonged,
and exacerbated the Flint Water Crisis.5
LEGAL STANDARDS
Defendants move to dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6).
Mot. at 6, 41. In deciding a Rule 12(b)(6) motion, courts construe the record in the
light most favorable to the nonmoving party and accept all well-pled factual
allegations as true. Phila. Indem. Ins. Co. v. Youth Alive, Inc., 732 F.3d 645, 649
(6th Cir. 2013). The court applies this same standard when reviewing a facial
challenge to subject-matter jurisdiction under Rule 12(b)(1). Global Tech., Inc. v.
Yubei (XinXiang) Power Steering Sys. Co., 807 F.3d 806, 810 (6th Cir. 2015).
ARGUMENT
5
See, e.g., Am. Compl. ¶¶ 132-135 (facts regarding state created danger claim);
Am. Compl. ¶¶ 143-144 (facts regarding bodily integrity claim); Am. Compl. ¶¶
159-164 (facts regarding race based equal protection claim); Am. Compl. ¶¶ 159-
164, 174-77 (facts regarding equal protection claim based on wealth status); Am.
Compl. ¶¶ 159-164, 187-90, 193 (facts regarding conspiracy to engage in invidious
racial discrimination); and Am. Compl. ¶¶ 159-164, 199-208 (facts regarding
regarding violation of public service provisions of ELCRA).
9
I. THIS COURT HAS SUBJECT-MATTER JURISDICTION OVER

PLAINTIFFS’ FEDERAL-LAW CLAIMS
Defendants attempt to evade responsibility for their actions on the faulty
premise that this Court lacks subject-matter jurisdiction6 over Plaintiffs’ federal-
law claims based upon statutory preemption and Eleventh Amendment immunity
arguments. Mot. at 6-14. As set forth below, Defendants ignore governing
precedent, apply an inapposite preemption test, and recharacterize Plaintiffs’
well-pleaded request for prospective injunctive relief as being only retroactive
relief that may consequently be barred under the Eleventh Amendment as a
result of Defendants’ recharacterization. These arguments, as applied to
Plaintiffs’ Amended Complaint, have no merit.
A. Defendants Fail To Meet Their Burden Of Establishing

Preclusion Of Plaintiffs’ Constitutional Claims
Plaintiffs allege that Defendants have violated their federal constitutional
rights of bodily integrity, to be free from harm resulting from state-created danger,
and to be treated free from governmental discrimination based upon race or
income. Section 1983 imposes liability on a person acting under the color of state
law who deprives another of these “rights, privileges, or immunities secured by the
Constitution and laws.” 42 U.S.C. § 1983. It provides Plaintiffs with a means to
obtain damages in federal court for violations of federal rights secured both by the
6
Plaintiffs assert federal subject matter jurisdiction based upon 28 U.S.C. § 1331,
28 U.S.C. § 1343(a)(3) and (4) and 28 U.S.C. 2201. Am. Compl. ¶ 4.
10
Constitution and by federal statutes.
In an attempt to negate federal judicial review, Defendants falsely argue
that the well-pleaded constitutional claims set forth in the complaint under §
1983 are preempted by the federal SDWA. Mot. at 11. “The burden thus lies with
the defendant in a §1983 action to prove preclusion.” Charvat v. E. Ohio Reg’l
Wastewater Auth., 246 F.3d 607, 615 (6th Cir. 2001). Indeed, “repeals by
implication are not favored and will not be presumed unless the intention of the
legislature to repeal is clear and manifest.” Hui v. Castaneda, 559 U.S. 799, 810
(2010). Defendants’ argument for implicit repeal of constitutional claims
asserted under §1983 is especially daunting as the Supreme Court does “not
lightly conclude that Congress intended to preclude reliance on §1983 as a
remedy for a substantial equal protection claim.” Smith v. Robinson, 468 U.S. 992,
1012 (1984).
To meet their burden, Defendants irresponsibly conflate the test for
evaluating SDWA preemption of constitutional claims asserted under §1983
with the distinctly different test for evaluating SDWA preemption of statutory
claims. Mot. at 8-10. Defendants incorrectly invoke Middlesex County Sewerage
Authority v. National Sea Clammers, 453 U.S. 1, 20-21 (1981), City of Rancho
Palos Verdes, Cal. v. Abrams, 544 U.S. 113, 127 (2005) and Mattoon v. City of
Pittsfield, 980 F.2d 1, 6 (1st Cir. 1992) (which relied upon the Sea Clammers
11
preemption test) as the legal underpinning for their argument that Plaintiffs’
constitutional claims are preempted by the SDWA.7
In presenting Sea Clammers and its progeny in this context, Defendants
present an incomplete and incorrect analysis. The Sixth Circuit has distinguished
both Sea Clammers and Rancho Palos Verdes when constitutional, rather than
statutory, rights were asserted under a §1983 claim noting that the difference was
“a critical distinction.” Cmtys. For Equity v. MHSAA, 459 F.3d 676, 684 (6th Cir.
2006).8 Indeed, the Sixth Circuit has already ruled on whether the SDWA
preempts a constitutional claim asserted under §1983 and expressly held that it
does not, finding Sea Clammers inapposite. Charvat, 246 F.3d at 614.9 If there
were any doubt as to whether the Sixth Circuit was faithful to Supreme Court
precedent in the area of § 1983 preclusion jurisprudence, such doubt was erased in
Fitzgerald v Barnstable School Committee, 555 U.S. 246 (2009). The Fitzgerald
7
Mot. at 8 citing Sea Clammers for the proposition that “[w]hen 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.”
8
See also Levin v. Madigan, 692 F.3d 607, 617 (7th Cir. 2012), aff’d, 2014 U.S.
Dist. LEXIS 22506 (7th Cir. 2014) (“Although the ADEA enacts a comprehensive
statutory scheme for enforcement of its own statutory rights, akin to Sea Clammers
and Rancho Palos Verdes, we find that it does not preclude a §1983 claim for
constitutional rights.”).
9
“The National Sea Clammers doctrine, however, is not directly parallel to the
question of whether the whistleblower provisions of the CWA and SDWA
foreclose a §1983 suit based on the violation of an individual’s constitutional
rights.”
12
Court addressed the manner in which legislative intent is to be evaluated for
determining whether a federal statute precluded a plaintiff’s right to assert a
§1983 claim. Fitzgerald articulated separate tests for evaluating that question,
based upon whether the federal right being asserted was statutory or constitutional:
In those cases in which the § 1983 claim is based on a statutory right,

“evidence of such congressional intent may be found directly in the statute
creating the right, or inferred from the statute's creation of a comprehensive
enforcement scheme that is incompatible with individual enforcement under
§ 1983.” Id., at 120, 125 S. Ct. 1453, 161 L. Ed. 2d 316 (internal quotation
marks omitted). In cases in which the § 1983 claim alleges a constitutional
violation, lack of congressional intent may be inferred from a comparison of
the rights and protections of the statute and those existing under the
Constitution. Where the contours of such rights and protections diverge in
significant ways, it is not likely that Congress intended to displace §1983
suits enforcing constitutional rights. Our conclusions regarding
congressional intent can be confirmed by a statute's context. Id., at 127, 125
S. Ct. 1453, 161 L. Ed. 2d 316 (Breyer, J., concurring) (“[C]ontext, not just
literal text, will often lead a court to Congress’ intent in respect to a
particular statute”).
Id. at 252-53 (emphasis added).
Rather than parsing through inapplicable portions of Sea Clammers and
Rancho Palos Verde, Plaintiffs respectfully submit that the governing precedent for
determining preclusion of § 1983 claims for constitutional violations is set forth in
Fitzgerald, Smith, and Charvat.
The Smith and Fitzgerald preclusion standard requires Defendants to show
both that (1) Congress adopted the statute as a method of enforcing a
constitutional right; and (2) Congress intended that statutory enforcement
remedy to be the exclusive method of enforcing that constitutional right. Smith,
13
468 U.S. at 1009 (“the question to be asked . . . is whether Congress intended the
EHA be the exclusive avenue through which a plaintiff may assert those
[constitutional] claims”); Fitzgerald, 555 U.S. at 256 (burden on the defendant to
show that Congress saw Title IX as the “sole” means of vindicating the
constitutional right to be free from gender discrimination perpetrated by
educational institutions.). The focus on this inquiry, unlike the issue in Sea
Clammers and Rancho Palos Verdes, is not how Congress intended that the
statutory rights would be enforced, but on whether Congress in adopting those
statutes intended that they be the exclusive means for adjudicating a
constitutional right.10
The Sixth Circuit has already ruled that the SDWA does not create an
effective remedy for enforcement of First Amendment constitutional rights such
that it would displace a §1983 claim in Charvat. Defendants cannot contend that
the statutory scheme in the SDWA, like the rights and procedures in the EHA
found in Smith, was framed to create a “more effective” remedy for plaintiffs to
pursue other §1983 constitutional claims implicating equal protection, bodily

10
The standard was satisfied in Smith because Congress had adopted the Education
Handicapped Act (“EHA”) for the express purpose of enforcing equal protection
rights of handicapped children, and the statute was fashioned by Congress to be
“the most effective vehicle” for protecting those constitutional rights. Smith, 468
U.S. at 1012-13. The standard was not satisfied in Fitzgerald because unlike Smith
there was no express indication from Congress that Title IX was the sole means of
vindicating the constitutional right to be free from gender discrimination. See
Fitzgerald, 555 U.S. at 259.
14
integrity and state-created danger rights. Defendants have further failed to meet
their burden by citing any legislative history where Congress supposedly
intended to use the SDWA’s remedial mechanism as the sole basis for enforcing
constitutional rights. There is none. Congress did not enact a statute regulating
water quality standards as the “exclusive avenue through which a plaintiff may
assert those [constitutional] clams.” Smith, 468 U.S. at 1009. And the standards
for evaluating the constitutional claims here are vastly different than the
standards for evaluating a claim under the SDWA. See, e.g., the “shocks the
conscience” standard for evaluating state-created danger claims discussed, infra,
in Argument II.A.1 of this brief.
Defendants have utterly failed to satisfy any of the factors set forth in the
Smith and Fitzgerald preclusion jurisprudence.
B. Plaintiffs’ Claims For Prospective Injunctive Relief Are Not

Jurisdictionally Barred By The Eleventh Amendment
Defendants also recharacterize Plaintiffs’ request for prospective injunctive
relief seeking the repairs of private property and ongoing medical monitoring of
Flint residents—as “retrospective relief” that is purportedly barred by sovereign
immunity. Mot. at 12-14. However, Plaintiffs seek prospective injunctive relief
against the State, not damages. Longstanding precedent makes clear such relief is
not barred by the Eleventh Amendment.
Defendants rely heavily on Ex parte Young, 209 U.S. 123 (1908) (Mot. at
15
12-14). The standard for allowing Ex parte Young relief is whether a complaint
“alleges an ongoing violation of federal law and seeks relief properly characterized
as prospective.” Verizon Md., Inc. v. Pub. Serv. Comm’n of Maryland, 535 U.S.
635, 645 (2002). Plaintiffs here meet both elements of this test.
First, contrary to Defendants’ assertions, the relief requested by Plaintiffs is
prospective and injunctive. The Supreme Court has made clear that the fact that
injunctive relief may require state spending does not mean it is barred. The rule
was articulated in Edelman v. Jordan, 415 U.S. 651, 658 (1974) in which “fiscal
consequences to state treasuries” that “were the necessary result of compliance”
with prospective decrees were found wholly permissible. The only form of relief
the Eleventh Amendment forbids in this context is relief that is “indistinguishable.
. . from an award of damages against the State.” Id. at 668.
In Edelman itself, the Court allowed an injunction requiring state
compliance with federal standards for processing welfare applications, even though
compliance would inevitably cost the state a great deal of money, while forbidding
restitution that required back payments to welfare recipients already harmed. Id.
From a policy perspective, the desire to protect states against damages claims, does
not and cannot insulate state officials from complying with federal law – even
when compliance may cost money.
The Supreme Court reaffirmed this distinction when clarifying that it is the
16
retrospective quality of the relief, not its monetary value that represents the key
dividing line – a line that “cannot be so rigid that it defeats the effective
enforcement of prospective relief.” Hutto v. Finney, 437 U.S. 678, 690 (1978).
Indeed, the Supreme Court has permitted prospective relief that includes millions
of dollars to desegregate school districts, substantial state spending on welfare, and
an injunction compelling state officers to allow aliens access to welfare benefits.
See Milliken v. Bradley, 433 U.S. 267 (1977); Edelman, 415 U.S. at 668; and
Graham v. Richardson, 403 U.S. 365 (1971).
Plaintiffs’ requested relief is similarly prospective. Property repair, while
connected to the remedy of past harm, is prospective in that the harm and the
violations that have caused it are ongoing. And the appointment of a medical
monitor is clearly prospective – it would be used to ensure that Plaintiffs exposed
to toxic water are healthy going forward, and cannot be characterized as
“damages” in the sense of financial compensation given to injured plaintiffs.11
11
Indeed, Plaintiffs seek relief here that is strikingly similar to the relief sought in
Milliken, supra. In Milliken, plaintiffs challenged the remaining vestiges of de jure
segregation in Detroit school districts, and asked for court-imposed cost-sharing
from the state to desegregate. In approving the relief, the Court noted that the cost-
sharing was “plainly designed to wipe out continuing conditions of inequality
produced” by defendants, and that because the victims of segregation “will
continue to experience the effects” of segregation “until such future time as the
remedial programs can help dissipate the continuing effects of past misconduct.”
433 U.S. at 290. To further underscore the point the requested relief was
permissible, the Court went on to say that the fact that “the programs are also
‘compensatory’ in nature does not change the fact that they are part of a plan that
17
Second, as to the “ongoing violation” of federal law element of the Verizon
test, Defendants claim that their misconduct stopped upon the reconnection of Flint
to the Detroit water supply in October 2015 (Mot. at 13), but Plaintiffs hardly
concede this question of fact. Indeed, the request for class certification in the
Amended Complaint explicitly includes those exposed to toxic Flint water “from
April 25, 2014 to present.” Am. Compl. ¶ 122. Moreover, the complaint clearly
alleges that the violations continue to this day, arguing that “the relief efforts of
State public officials have been ineffective, indeed often frivolous,” in ending the
harm suffered by Plaintiffs, and the ineffective relief “[has] prolonged the
dangerous conditions and in many cases. . . further exacerbated the effects of the
public health calamity created by the State” well beyond the return to Detroit’s
water supply. Id. ¶ 121. Finally, the complaint clearly identifies the relief against
Governor Snyder as necessary “to correct the harm caused and prolonged by state
government and to prevent future injury.” Id. ¶¶ 26-27.
Therefore, Defendants’ assertion that Plaintiffs “essentially concede” that no
threat of ongoing or future violations exists is flatly incorrect. Mot. at 13. Indeed,
the Eastern District of Michigan recently rejected a similar argument by defendants
in related litigation against state officials for violating the SDWA, holding that
operates prospectively” to desegregate schools. Id. By this logic, to the extent that
the harm continues and has gone unaddressed, it only strengthens Plaintiffs’
claims.
18
requested relief that included mitigation for the health concerns of poisoned Flint
residents — similar to the relief asked for here — did constitute prospective
injunctive relief. Concerned Pastors for Social Action v. Khouri, No. 16-10277,
2016 U.S. Dist. LEXIS 88217, at * 29-30 (E.D. Mich. July 7, 2016). Plaintiffs have
clearly alleged, for the purposes of overcoming a motion to dismiss, that the
constitutional violations at issue are ongoing and therefore satisfy Ex parte Young
and Verizon.
Finally, Defendants claim that the declaratory relief sought by Plaintiffs is
unavailable. Mot. at 14. While they cite Green v. Mansour, 474 U.S. 64 (1985) as
authority for this argument, they do so only by totally divorcing the holding of
Green from its original context. The plaintiffs in Green made no claim for
injunctive relief at all, and only sought a declaration that defendants’ past conduct
was illegal. Moreover, it was undisputed at the time of the suit that the defendants’
actions were in compliance with federal law due to a change in statute, therefore,
the only purpose of awarding declaratory relief would be so plaintiffs could use it
as res judicata in a later state court proceeding and essentially bind a state court to
awarding damates. Green v. Mansour, 474 U.S. 64, 73 (1985). Not wanting to
constrain a state court in that fashion, the Court barred the declaratory relief. Id.
None of those conditions are present here. Prospective injunctive relief is
precisely what Plaintiffs are seeking, and they repeatedly allege ongoing violations
19
of federal law. No statute or other law has since made it clear that Defendants’
conduct conforms to federal law – quite the contrary, Plaintiffs allege misconduct
that continues into the present and may recur in the future. And since Plaintiffs tie
the declaratory relief to the injunctive relief, it is no more a “functional equivalent
of a monetary award” than the injunctive relief itself. Mot. at 14. Clearly, the
request for declaratory relief is compatible with Edelman.
II. PLAINTIFFS HAVE ADEQUATELY PLED EACH CLAIM UNDER

THE CONSTITUTION AND ALLEGED FACTS JUSTIFYING AN
EXCEPTION TO QUALIFIED IMMUNITY
Plaintiffs have alleged that Defendants violated three federal rights arising
under the Fourteenth Amendment: 1) to be free from state-created danger, 2) to
bodily integrity, and 3) to equal protection. Defendants falsely contend that
Plaintiffs have failed to state these Constitutional claims and are entitled to
qualified immunity. Mot. at 15-38. As demonstrated herein, Plaintiffs have cited
such facts in which Defendants violated Plaintiffs’ “clearly established”
constitutional rights.
A. Plaintiffs Have Pled Two Substantive Due Process Claims

Plaintiffs contend in their Amended Complaint, ¶¶131-141, that Defendants:
 caused and created the vast toxic danger for Plaintiffs by:
o switching water sources solely for political reasons that were
neither fiscally nor scientifically sound and then lying about the
necessity of switching water sources and the risks and hazards
of so doing (Am. Compl. ¶¶ 27, 29, 30, 49-51, 53-64, 68-70);
o unleashing an enormous onslaught of toxins on Plaintiffs – i.e.,
20
poisoning them (Am. Compl. ¶¶ 27, 29, 30, 58, 64, 68-70); and
 prolonged, exacerbated and increased those dangers by:
o lying about contamination in the water; falsely reassuring
Plaintiffs that it was safe to drink, cook with and bathe in the
water actively concealing scientific data that revealed the
dangers (Am. Compl. ¶¶ 27, 29-30, 69-74, 76, 78, 81, 83, 86-
87, 89-90, 92-96, 98, 99, 102, 104-110, 112-116); and
o continuing to lie about the dangers, hazards and risks that had
resulted from switching water sources(Am. Compl. ¶¶ 27, 29-
30, 50, 53, 57-63, 67, 68); and
o actively concealing these Defendants’ scientific data and
studies that, in fact revealed the poisons and the dangers, so that
the public would not know the ugly truth, already known to
Snyder, Dillon and Lyon (Am. Compl. ¶¶ 50-51, 57-63, 102-
105, 108-110)
Most certainly, if these allegations are taken as true it is beyond debate that
Defendants violated Plaintiffs’ rights to substantive due process of law:
When there is a substantial showing that the exertion of state power has
overridden private rights secured by that Constitution, the subject is
necessarily one for judicial inquiry in an appropriate proceeding directed
against the individuals charged with the transgression.
Scheuer v. Rhodes, 416 U.S. 232, 249 (1974).
“The touchstone of due process is protection of the individual against
arbitrary action of the government,” and the Supreme Court has defined such a
violation as “executive abuse of power as that which shocks the conscience” Cnty.
of Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998). Where there is time for
deliberation, “deliberate indifference” or “subjective recklessness” to a substantial
risk of harm will satisfy the conscious-shocking standard. Hunt v. Sycamore Cmty.
21
Sch. Dist. Bd. of Educ., 542 F.3d 529, 540 (6th Cir. 2008); Range v. Douglas, 763
F.3d 573, 590 (6th Cir. 2014).12
1. Plaintiffs Have Adequately Alleged State-Created Danger

Within the landscape of substantive due process rights, courts have
recognized the “state-created danger” theory of liability.
To prevail on a state-created danger theory, Plaintiffs must establish three

elements:
(1) an affirmative act by the governmental actor creates or
increases the risk to the plaintiff;
(2) a special danger to the plaintiff as distinguished from the public
at large; and
(3) the requisite degree of state culpability.13
The ultimate question in determining whether an affirmative state action

increased danger to an individual is whether the individual was safer before
the state action than after it.
Stiles, ex rel. D.S. v. Grainger Cnty., Tenn., 819 F.3d 834, 854 (6th Cir. 2016)
(internal citations omitted). These elements are satisfied by Plaintiffs’ allegations
of misconduct detailed above.
Defendants first argue that the harm suffered by a plaintiff in a state-created
danger claim must be committed by a “private third party.” Mot. at 16-17.
However, while third-party violence is often the context in which such claims are
brought, it is simply not required under the elements set forth by the Sixth Circuit
12
Defendants misapply this case in their motion, focusing on the phrase “harmful
purpose.” Indeed, the case supports deliberate indifference as the standard.
13
The requisite culpability for state-created danger claims is satisfied by the same
standard that applies to establish a substantive due process claim. Here, the
applicable standard is deliberate indifference. Hunt, 542 F.3d at 534-35, 540.
22
this year in Stiles, supra. See also, McQueen v. Beecher, 433 F.3d 460, 464 (6th
Cir. 2006). It is illogical to claim that public officials cannot be held liable for
creating a danger and injuring a plaintiff; whereas they may be held liable if they
created or increased a risk of harm that was carried out by a private third party.14
In any event, here the direct cause of injury to Plaintiffs was contaminated
water that poisoned their bodies and destroyed their property. Defendants’ liability
is premised on their affirmative acts that created and/or increased the risk that
Plaintiffs would be exposed to it.
Indeed, as outlined in the “Facts,” above, pp. 3-9, Plaintiffs have alleged
specific acts by each of these Defendants that caused, created, prolonged, and
increased these dangers: e.g., both Snyder and Dillon decided Flint should switch
from safe Detroit water to the KWA for reasons that had nothing to do with saving
money. These two Defendants both also knew that the interim use of the Flint
River would poison the Plaintiffs. Lyon, along with Snyder and Dillon,
affirmatively undertook an aggressive scheme to hide from the people of Flint
what had become known to them that lead and Legionella, along with other toxins
were seriously and immediately endangering the people of Flint, all the while
14
Indeed, even the primary case on which Defendants rely notes that liability for
violation of the right to substantive due process may attach where state actors
caused the harm themselves. Jones v. Reynolds, 438 F.3d 685, 695 (6th Cir. 2006)
(citation omitted).
23
knowing that to do so would place people at grave risk.15
Plaintiffs allege that Defendants deliberately switched water sources, not for
legitimate fiscal purposes, but rather for political purposes. They did so knowing
that the water was likely to be dangerous and would have seriously adverse health
consequences. How can these Defendants claim that these actions do not shock the
conscience – particularly in light of the fact that the switch was unnecessary,
costly, dangerous, and as taken with time for deliberation?
Defendants next argue that because the decision to switch water sources was
that of Emergency Manager Kurtz and it was that switch that caused Plaintiffs’
injuries, these Defendants cannot be held liable. Mot. at 16. However, this is a
factual dispute, not properly before this Court on a Rule 12(b) motion. The
argument is also factually incorrect. Indeed, Governor Snyder’s Chief of Staff
Dennis Muchmore conceded that Defendant Dillon “made the ultimate decision”
to switch water sources. Am. Compl. ¶ 58.
Finally, Defendants argue that Plaintiffs’ claims cannot survive because
“(t)here are no allegations that State Defendants’ actions singled out these ten
15
Other courts have applied a state-created danger theory in similar circumstances
where a state actor exposed the plaintiffs to a risk of harm. Van Orden v. Borough
of Woodstown, 5 F. Supp. 3d 676 (D.N.J. 2014) (plaintiffs sufficiently alleged
state-created danger claim against public officials who open floodgates, causing
plaintiffs’ decedent to drown); Scanlan v. Texas A & M Univ., 343 F.3d 533, 538
(5th Cir. 2003), aff’d sub nom., 485 F.3d 325 (5th Cir. 2007) (Fifth Circuit
reversed dismissal of claims against university and its officials for injuries caused
when university bonfire stack collapsed).
24
Plaintiffs or members of the putative Plaintiffs’ Class and placed them specifically
at risk of the special danger.” Mot. at 17.16 This is patently incorrect, to wit:
1. Plaintiffs alleged that State employees in Flint were provided bottled

water by State Defendants to protect them from the adverse effects of
the Flint water, whereas Plaintiffs and their discrete Class were treated
differently and adversely – i.e., singled out – by not even being
informed as to the dangers contained in the Flint River waters that
they continued to drink and use. (Am. Compl. ¶81); and
2. Plaintiffs alleged that the KWA was supposed to provide water to all
of Genesee County, yet under the Interim Plan only certain persons,
i.e., Plaintiffs and their Class, would receive the dangerous Flint River
water and the non-Flint residents of Genesee County received healthy
water from Detroit. Here again a discrete group – Flint residents and
water users were singled out. (Am. Compl. ¶159).
For the reasons outlined above, Plaintiffs respectfully request that this Court
hold that they have properly alleged a state-created danger claim against
Defendants and that those Defendants are not entitled to qualified immunity.
2. Plaintiffs Properly Pled Violation Of Their Rights To

Bodily Integrity
Plaintiffs also allege that State Defendants violated their rights to bodily
integrity – a right that is guaranteed within the Fifth and Fourteenth Amendments’
right to substantive due process. As Defendants concede, Mot. at 18, this is a
clearly established right under the Constitution of the United States, to wit:
The right to personal security and to bodily integrity bears an impressive

constitutional pedigree. As far back as 1891, the Supreme Court recognized
16
Defendants again rely on Jones, supra. But see McQueen, 433 F.3d at 468, n.8,
noting that, despite some misinterpretation, Sixth Circuit precedent allows for
special danger to a “subset,” as opposed to the general public.
25
that “[n]o right is held more sacred, or is more carefully guarded . . . than the
right of every individual to the possession and control of his own person,
free from all restraint or interference of others, unless by clear and
unquestionable authority of law” . . . . In Albright v. Oliver,. . . (1994), the
[U.S. Supreme] Court stated that “[t]he protections of substantive due
process have for the most part been accorded to matters relating … the right
to bodily integrity.”. . . “[I]t is well established that persons have a
fourteenth amendment liberty interest in freedom from bodily injury,” . . . .
Doe v. Claiborne County, 103 F.3d 495, 505 (6th Cir. 1996).
Defendants argue that Plaintiffs’ claims – that Defendants caused Plaintiffs
to be poisoned – are insufficient to state a bodily integrity claim. Mot. at 17-19. In
so doing, they rely on authority that is wildly inapplicable. For example, in Ely v.
Velde, 451 F.2d 1130 (4th Cir. 1971), Pinkney v. Ohio Environmental Protection
Agency, 375 F. Supp. 305 (E.D. Ohio 1974), In re Agent Orange, 475 F. Supp. 928
(E.D.N.Y. 1979); and Tanner v. Armco Steel Corp., 340 F. Supp. 532 (S.D. Tex.
1972), the plaintiffs do not allege violation of their right to bodily integrity, nor
even their right to substantive due process.
Defendants primarily rely on Range v. Douglas, 763 F.3d 573 (6th Cir.
2014) where a rogue morgue employee sexually violated the bodies of plaintiffs’
decedents. Plaintiffs sued the supervisors at the morgue who knew that the worker
had sex with live women in the presence of the dead bodies, among other reckless
behavior. On a motion for summary judgment, the court held that, while the
evidence was strongly suggestive of negligence, there was no evidence that the
defendants had active knowledge of the necrophilia. Id. at 591-92. Thus, there was
26
no basis to proceed with a bodily integrity claim. Id. That case is easily
distinguishable from the case at bar, where Plaintiffs alleged that Defendants had
actual knowledge of the substantial risk of harm that would result from switching
water sources and subsequently concealed those risks from Plaintiffs while they
continue to be harmed.
Simply put, Defendants have failed to articulate any intelligible reason why
this Court should not allow Plaintiffs’ claims of the violation of their right to
bodily integrity to proceed.
B. Plaintiffs Have Adequately Pled An Equal Protection Claim

The Fourteenth Amendment requires that each state provide all residents
with equal protection under the law. See U.S. Const. Am. 14, §1. The Equal
Protection Clause is particularly concerned with actions of public officials and
statutes that treat some groups of similarly situated persons differently than others.
See McGowan v. Maryland, 366 U.S. 420 (1961). It is well settled that the Equal
Protection Clause is implicated when state actors’ conduct detrimentally impacts a
greater proportion of one race over another, with “. . . a discriminatory effect . .
.and [is] . . . motivated by discriminatory purpose.” Farm Labor Org. Comm. v.
Ohio State Hwy. Patrol, 308 F.3d 523, 533-34 (6th Cir. 2002) (citation omitted).
Purpose can be shown by discriminatory impact plus “circumstances [in which] the
discrimination is very difficult to explain on nonracial grounds.” Batson v.
27
Kentucky, 476 U.S. 79, 93 (1986).
When a state actor’s conduct impedes the exercise of a fundamental right,
that conduct will receive strict scrutiny. San Antonio Indep. Sch. Dist. v.
Rodriguez, 411 U.S. 1, 19-20 (1973). Strict scrutiny requires that the state’s
differing treatment be narrowly tailored to further a compelling state interest.
Grutter v. Bollinger, 539 U.S. 306, 326 (2003). This strict scrutiny approach
requires that the State employ the least restrictive means available to advance its
interest. Bernal v. Fainter, 467 U.S. 216, 219 (1984).
As Judge Steeh held in Phillips v. Snyder, No. 13-cv-11370, 2014 U.S. Dist.
LEXIS 162097 (E.D. Mich. Nov. 19, 2014) when he denied these same
Defendants’ motion to dismiss the plaintiffs’ equal protection claim:17
At the motion to dismiss stage, plaintiffs need only state a plausible claim
for relief. Ashcroft v. Iqbal, 556 U.S. [662] at 678. Since statistical evidence
can be used to demonstrate unconstitutional discriminatory action, plaintiffs
at this stage must plead some facts that demonstrate the plausibility that
emergency managers have been appointed in an intentionally discriminatory
manner.
Phillips, 2014 U.S. Dist LEXIS 162097, at *30.
In the instant case, Plaintiffs have stated a plausible claim for relief under
the Equal Protection Clause, both for racial and wealth-based discrimination.
Defendants’ first argument, that Flint was not “similarly situated” to other
17
In Phillips, the plaintiffs alleged, among other things, a violation of the Equal
Protection Clause by the State in its application of Public Act 436, MCLA §§
141.1451 et seq. (the “Emergency Manager Law”). The Court, through Judge
Steeh, denied the State defendants’ Motion to Dismiss on that claim. Id. at *31.
28
communities, is addressed separately below in the context of each claim.
1. Plaintiffs Have Alleged A Fundamental Right Is Involved

Defendants concede that the State is prohibited under the Equal Protection
Clause from engaging in conduct under color of law that either: 1) burdens a
fundamental right; or 2) targets a protected class. Mot. at 23. See also Johnson v.
Bredesen, 624 F.3d 742, 746 (6th Cir. 2010). As fully discussed above, Plaintiffs
have properly alleged the violations of their fundamental rights to both bodily
integrity, Washington v. Glucksberg, 521 U.S. 702, 720 (1997), and to be free from
harms resulting from state-created danger. Stiles, supra.
2. Plaintiffs Have Alleged A Viable Race-Based Equal

Protection Claim
Defendants argue that Plaintiffs are not “similarly situated” to residents of
other communities in Genesee County/Michigan. Therefore, they claim a
compelling state interest in treating Plaintiffs, Flint water users, differently from
water users in other similarly situated communities.
Although Flint, unlike the other communities in Genesee County, had an
Emergency Manager, that fact is a red herring. The relevant facts are that Flint and
these other communities had all signed on to leave the DWSD and join the KWA.
Thus, they were similarly situated. As alleged in Plaintiffs’ First Amended
Complaint, all of these communities devised an Interim Plan for delivering water
while the KWA water system was being built. Am. Compl. ¶155. Yet no
29
communities other than Flint were subjected to Flint River water; indeed, all the
other communities – all predominantly white ‒ were permitted to use the DWSD
temporarily until the permanent switch to KWA was to occur. Flint, the only
predominantly African American community in Genesee County, was the only one
taken off DWSD water and switched to the Flint River, despite that it was fiscally
preferable for all communities, including Flint, to stay with the safer DWSD water
than to switch to the Flint River. Am. Compl. ¶¶59, 176, 192-3, 209.
As alleged in Paragraph 163 of Plaintiffs’ First Amended Complaint:
163. Because Plaintiffs and their Class were water users in a

predominately African American community, their complaints were
dismissed and disrespected as exaggerated, without merit or inconsequential.
If Plaintiffs’ community had been predominately white, citizen complaints
would have been taken seriously, treated as valid and the MDEQ and Flint
public officials would have taken timely action to address the concerns. 27
[FN 27]: “Citizen concerns were at times derided and dismissed, in spite of
the fact that various members of the Governor’s staff had expressed – and
were expressing – concerns about the water situation in Flint at the same
time.” [Governor’s Advisory Task Force Report at 37].
Am. Compl. ¶163; ECF No. 111-2, Advisory Task Force Report.
The State reasons that the financial distress in Flint was a compelling reason
justifying differing treatment. While a genuine financial emergency may be a
compelling state interest,18 the affirmative decision to knowingly expose this entire
community to a known toxic water supply, and then lie to them about it, is not
18
Indeed, the evidence in this case will show that the Defendants’ conduct has
resulted in a substantially more severe financial distress to the City of Flint.
30
narrowly tailored or even rationally related to achieving such ends. That is, there is
no compelling government interest – or even a rational basis – for knowingly
exposing Plaintiffs to a poisonous water supply and then lying to them by assuring
them that it was/is safe. These are all questions of fact that are not properly before
this Court at this time.
On the pending motion, Plaintiffs are not required to show that the
Defendants’ actions were not narrowly tailored to achieve the interests stated.
However, it is inconceivable to suggest that any legitimate state interests are
achieved through the deliberate exposure of Plaintiffs to a dangerously toxic water
source and then participating in a concerted campaign to cover it up, as alleged in
Plaintiffs’ Amended Complaint. Am. Compl. ¶¶69, 81, 86, 117, 134-136, 154, 161,
170, 186. Meanwhile, staying with DWSD, as was done in the surrounding
predominantly white communities, would have been far less injurious. Am. Compl
¶¶26, 27, 29, 30, 49-51, 53-64, 68-70, 159. Consequently, a claim for violation of
the Equal Protection Clause on the basis of race has been sufficiently stated.
Under the Equal Protection Clause, race based discrimination is subjected to
strict scrutiny. Such laws or practices need not overtly classify by race to be
unconstitutional; a facially neutral law with a legitimate purpose violates the
Fourteenth Amendment if the challenged conduct “had a discriminatory effect and
. . . was motivated by a discriminatory purpose.” Farm Labor Org. Comm. v. Ohio
31
State Highway Patrol, 308 F.3d 523, 533-34 (6th Cir. 2002) (citation omitted).
Plaintiffs need not demonstrate that racial discrimination was the “dominant” or
“primary” motive, just that a discriminatory purpose was “a motivating factor in
the decision” in question. United States v. City of Birmingham, 727 F.2d 560, 565
(6th Cir. 1984). Nor is discriminatory purpose neutralized by the inclusion of other
groups as objects of discriminatory intent. Hunter v. Underwood, 471 U.S. 222
(1985).
In determining whether an official act stems from discriminatory intent,
courts consider the “totality of the relevant facts.” Washington v. Davis, 426 U.S.
229, 242 (1976). “[I]t is an inherently difficult task to ascertain the motivations of
multi-membered public bodies,” Alexander v. Youngstown Bd. of Ed., 675 F.2d
787, 792 (6th Cir. 1982), and “officials . . . seldom, if ever, announce . . . their
desire to discriminate against a racial minority.” City of Birmingham, 727 F.2d at
564.
The Supreme Court therefore “has identified objective factors that may be
probative of racially discriminatory intent among legislative bodies.” Id. at 565
(citation omitted). First, “the fact . . . that the law [or practice] bears more heavily
on one race than another” supports an inference of racial discrimination. Farm
Labor Org. Comm., 308 F.3d at 534 (internal quotations omitted).
Indeed, “under some circumstances proof of discriminatory impact may for
32
all practical purposes demonstrate unconstitutionality because in various
circumstances the discrimination is very difficult to explain on nonracial grounds.”
Batson v. Kentucky, 476 U.S. 79, 93 (1986) (internal citations omitted). Plaintiffs
alleging race-based discrimination can demonstrate discriminatory effect “through
the use of statistical” evidence showing that one class is being treated differently
from another class that is otherwise similarly situated. Farm Labor Org. Comm.,
308 F.3d at 534 (internal citations omitted).
In addition, courts consider the historical background of the decision; the
sequence of events; procedural and substantive departures from normal procedure;
and legislative or administrative history.” Vill. of Arlington Heights v. Metro.
Hous. Dev. Corp., 429 U.S. 252, 267-68 (1977). These factors, which consider
both direct and circumstantial evidence of intent, are not exhaustive, and no one
factor is dispositive. Id. at 266.
Plaintiffs’ Amended Complaint clearly alleges facts that identify both racial
discrimination and intent to discriminate. For example:
160. As evidence of the fact that race discrimination was the reason for
treating the two groups of water users differently, the cost of continuing with
the finished water product from the DWSD for all water users (both Genesee
County and Flint) would have been substantially less than the cost of
upgrading the Flint WTP in order to safely process the raw Flint River
water.
161. Given the clear difference in the treatment between these two groups of
similarly situated water users, the deliberate and intentional decisions and
actions of these Defendants in devising the Interim Plan was the product of
33
racial discrimination in violation of the Equal Protection Clause.

Am. Compl. ¶¶ 160-161.
Defendants’ citation to TriHealth, Inc. v. Board. of Commissioners,
Hamilton County., 430 F.3d 783 (6th Cir. 2005), is completely inapposite. Tri-
Health does not address racial discrimination and has no bearing on the instant
case. Id. at 788. Likewise, Defendants’ reliance upon Moore v. Detroit School
Reform Board., 293 F.3d 352 (6th Cir. 2002), is similarly flawed. Indeed,
Defendants’ discussion of Moore addresses the constitutionality of the Emergency
Manager Act, P.A. 436, which has nothing to do with Plaintiffs’ equal protection
claims in this case. The “totality of the relevant facts,” Washington, 426 U.S. at
242, alleged here thus fully distinguishes Defendants Snyder and Dillon’s
unconstitutional conduct from the legislation challenged in Moore. Again,
Plaintiffs have properly pled a claim for relief and Defendants have wholly failed
to meet their burden for dismissal.
3. Plaintiffs Have Alleged A Viable Wealth-Based Equal

Protection Claim
The Equal Protection Clause protects against discriminatory violations of
fundamental rights regardless of the class being discriminated against. Obergefell
v. Hodges, 135 S. Ct. 2584, 2602 (2015); see also Loving v. Virginia, 388 U.S. 1,
12 (1967); Lawrence v. Texas, 539 U.S. 558, 566-67 (2003).
In addition to racial discrimination, Plaintiffs also claim that because Flint
residents and the community itself are poorer than surrounding Genesee County
34
communities, Defendants have engaged in wealth-based discrimination. As with
the race-based claim, the violation of one’s fundamental rights to bodily integrity
and to be protected against state-created danger that disproportionately
discriminates on the basis of wealth is rarely justified and will be strictly
scrutinized. See San Antonio, 411 U.S. at 17 (wealth-based discrimination is
subject to strict judicial scrutiny when the state’s conduct “. . . impinges upon a
fundamental right explicitly or implicitly”).
In Harper v. Virginia Board. of Elections, 383 U.S. 663 (1966), the United
States Supreme Court considered whether restrictions that act as a barrier to
economically poor persons voting in state elections violate the Equal Protection
Clause. In Harper, the Court held that a state violates the Fourteenth Amendment’s
Equal Protection Clause “whenever it makes the affluence of the voter . . . an
electoral standard” and recognized that “[w]ealth, like race . . . is not germane to
one's ability to participate intelligently in the electoral process” and that “[t]o
introduce wealth . . . as a measure of a voter's qualifications is to introduce a
capricious or irrelevant factor. The degree of the discrimination is irrelevant.” Id. at
666-68.
In this case, the violation of Plaintiffs’ fundamental due process rights based
on wealth or affluence will be strictly scrutinized and only survive Constitutional
35
review if narrowly tailored to further a compelling state interest.19
Plaintiffs have alleged facts in their First Amended Complaint that meet the
standard for asserting a viable claim of wealth-based discrimination which violated
their fundamental rights. Am. Compl. ¶¶1(iv), 177.
Defendant Snyder’s own Advisory Task Force Final Report, attached as
Exhibit A to their First Amended Complaint found that:
Flint residents, who are majority Black or African-American and among the
most impoverished of any metropolitan area in the United States, did not
enjoy the same degree of protection from environmental and health hazards
as that provided to other communities.
ECF No. 111-2, p. 54 (emphasis added).
Finally, for all of the reasons discussed above regarding racial
discrimination, there is also no rational basis for Defendants’ discrimination on the
basis of wealth. See also Am. Compl. ¶¶ 59, 176, 192-193, 209. Thus, Plaintiffs
have clearly stated a well-pleaded claim for relief from wealth-based
discrimination under the Equal Protection Clause.
4. Plaintiffs Have Properly Alleged Liability Against The State

Defendant State of Michigan overlooks Plaintiffs’ properly pled allegations
of liability and only argues that respondeat superior does not apply. However,
Supreme Court jurisprudence is clear that:
19
Defendants’ reliance upon Johnson v. Bredesen, 624 F.3d 742 (6th Cir. 2010) is
patently incorrect. The Johnson court correctly held that in the absence of a
fundamental right to vote, wealth alone is not a suspect class.
36
Official capacity suits . . . ‘generally represent only another way of pleading

an action against an entity of which an officer is an agent.’ Monell v. New
York City Dept. of Social Services, 436 U.S. 658, 690 n. 55 [] (1978). As
long as the government entity receives notices and opportunity to respond,
and official-capacity suit is, in all respects other than name, to be treated as a
suit against the entity. Brandon [v. Holt], 469 U.S. [464,] 471-72 [] (1985).
Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (parallel cites omitted).
In this case, Plaintiffs named Governor Rick Snyder in both his individual
and official capacities. Am. Compl. ¶167. Thus, a claim has been properly alleged
against the State for violation of equal protection.
C. Plaintiffs Have Sufficiently Pled The Elements Of Their Claim

For Conspiracy (Count VI)
Defendants also seek to dismiss Plaintiffs’ 42 U.S.C. § 1985(3) claim, which
secures the rights of Plaintiffs and the class they represent to be free from
conspiracies founded on invidious racial animus. Mot. at 32. A § 1985(3) claim
requires that a claimant show that:
1) the defendants conspired “for the purpose of depriving, either directly or

indirectly, any person or class of persons of the equal protection of the laws,
or of equal privileges and immunities under the laws”; and 2) the defendants
committed acts that deprived the claimant “of having and exercising any
right or privilege of a citizen of the United States.”
Bartell v. Lohiser, 215 F.3d 550, 559 (6th Cir. 2000) (citing 42 U.S.C. § 1985(3));
Griffin v. Breckenridge, 403 U.S. 88, 102-03 (1971). The Sixth Circuit requires
that the class be one that receives heightened protection under the Equal Protection
Clause and that the individuals “join together as a class for the purpose of asserting
certain fundamental rights.” Browder v. Tipton, 630 F.2d 1149, 1150 (6th Cir.
37
1980).
Here, Plaintiffs’ Amended Complaint is replete with allegations that
Defendants singled out Flint, a poorer and predominately black community, 20 by
conspiring to devise an Interim Plan which allowed predominately white users of
Genesee County to receive superior water. See, e.g., Am. Compl. ¶¶ 186-194.
Throughout this process, Defendants took affirmative steps in furtherance of their
conspiracy to ensure that the Interim Plan was fulfilled at Plaintiffs’ expense. Id.
As demonstrated above in Arguments II. A-B, Plaintiffs have suffered violations of
fundamental rights to bodily integrity, property, and liberty interests to support a §
1985(3) claim. Defendants’ contention to the contrary (and reliance on Coshow v.
City of Escondido, 34 Cal. Rptr. 3d 19 (Cal. Ct. App. 2005))21 is simply incorrect.
Mot. at 33.
Moreover, Defendants’ contention (Mot. at 33) that Plaintiffs may not be
deemed a protected class for purposes of an Equal Protection claim because both
minority and non-minority residents of Flint received corrosive water lacks any
20
Plaintiffs have alleged “the conspiracy was motivated by racial, or other class-
based, invidiously discriminatory animus.” Bass v. Robinson, 167 F.3d 1041, 1050
(6th Cir. 1999).
21
Throughout their argument, Defendants cite Coshow, a distinguishable case in
which a few residents challenged the practice of fluoridating water, which has been
definitively accepted as a typical water treatment practice. Moreover, no federal
court – much less one that would be binding here – has ever published an opinion
citing or adopting Coshow, on which Defendants so heavily rely.
38
support in the authorities upon which Defendants rely and defies common sense.
See Bartell, Griffin, Coshow, supra.
There is no dispute that Flint is a predominately African-American area
surrounded by predominately white areas in Genesee County. Indeed, Plaintiffs are
water users of a city, which is 65.4% non-white and approximately 57% black.
Flint is one of six communities through which the Flint River flows, the other five
being: 1) the city of Montrose, Michigan, which is 98.6% white; 2) the city of
Flushing, Michigan, which is 94.8% white; 3) the township of Flushing, Michigan,
which is 98.4% white; 4) the city of Columbiaville, Michigan, which is 95.2%
white; and 5) the city of Lapeer, Michigan, which is 88.6% white.22
Yet, Flint citizens were the only ones within Genesee County to have their
water source switched to the deleterious Flint River. The remainder of Genesee
County continued to receive uncontaminated water from Lake Huron via DWSD.23
Although non-minority residents of Flint have also been injured by the Defendants’
discriminatory decisions, there has been no rational economic or fiscal justification
22
U.S. Census of Population and Housing, 2010: Summary Population and
Housing Characteristics Michigan (CPH 1-9). Washington: Government Printing
Office, 2010; available at http://www.census.gov/prod/cen2010/cph-1-24.pdf
23
Ron Fonger, Drain commissioner assures Genesee County customers they aren't
drinking Flint River water, MLive.com (Jan. 9, 2015, 1:45pm),
http://www.mlive.com/news/flint/index.ssf/2015/01/drain_commissioner_assures_
wat.html.
39
for why the only area to be targeted was the predominately African-American area
of the County.
Because Plaintiffs have pled sufficient allegations to sustain § 1985(3)
claim, Defendants’ motion to dismiss on this basis should also be dismissed.
D. Snyder, Lyon, And Dillon Are Not Entitled To Qualified

Immunity
As a last resort to bar this suit, Defendants invoke the doctrine of qualified
immunity. Mot. at 34-38. The question of whether qualified immunity is warranted
involves a two-step inquiry:
(1) Whether the facts, considered in the light most favorable to the
plaintiff, demonstrate a constitutional violation; and
(2) Whether the constitutional right is clearly established. [Saucier
v. Katz, 533 U.S. 194, 200-01 (2001)]
As explained in Arguments II.A-C, Plaintiffs have established that Snyder,
Dillon and Lyon each violated Plaintiffs’ constitutional rights.24 What remains for
this Court to consider is whether such rights were clearly established. In order for
the Court to conclude the constitutional right is “clearly established,” the contours
of the right must be sufficiently clear that a reasonable official would understand
that what he is doing violates that right. Baynes v. Cleland, 799 F.3d 600, 610 (6th
Cir. 2015) (citation omitted). “[A]n action’s unlawfulness can be ‘clearly
24
Once again, Defendants’ focus on respondeat superior and the Emergency
Managers’ role in the Flint Water Crisis is misplaced and has no bearing on the
qualified immunity inquiry. Mot. at 35-36.
40
established’ from direct holdings, from specific examples describe[ed] [] as
prohibited, or from the general reasoning that a court employs.” Id. at 612.
Plaintiffs need not present a case that is factually identical to their own.
“[I]n an obvious case, [general] standards can clearly establish the answer, even
without a body of relevant case law.” Sample v. Bailey, 409 F.3d 689, 699 (6th Cir.
2005) (internal quotations omitted). “[T]here need not be a case with the exact
same facts or even ‘fundamentally similar’ or ‘materially similar’; rather, the
question is whether Defendants had ‘fair warning’25 that their actions were
unconstitutional.” Grawey v. Drury, 567 F.3d 302, 313-314 (6th Cir. 2010), citing
Cummings v. City of Akron, 418 F.3d 676, 687 (6th Cir. 2005) and Hope v. Pelzer,
536 U.S. 730, 741 (2002) (concluding that “officials can still be on notice that their
conduct violates established law even in novel factual circumstances”).
As set forth by the Supreme Court:
[Q]ualified immunity seeks to ensure that defendants ‘reasonably can

anticipate when their conduct may give rise to liability,’ . . . by attaching
liability only if ‘[t]he contours of the right [violated are] sufficiently clear
that a reasonable official would understand that what he is doing violates
that right,’ . . . . (G)eneral statements of the law are not inherently incapable
of giving fair and clear warning, and in other instances a general
25
While Defendants focus on the “beyond debate” language in Aschroft v. al-Kidd,
563 U.S. 731, 741 (2011), this Court recently conducted a thorough survey of
Supreme Court and Sixth Circuit law on qualified immunity and confirmed that
“beyond debate” is not incompatible with the “fair warning” standard and other
long-held qualified immunity precedents cited above. See Baynes, 799 at 612-613
(“the sine qua non of the ‘clearly established’ inquiry is ‘fair warning.’”) (citation
omitted).
41
constitutional rule already identified in the decisional law may apply with
obvious clarity to the specific conduct in question, even though ‘the very
action in question has [not] previously been held unlawful,’ . . . . ‘. . . There
has never been . . . a section 1983 case accusing welfare officials of selling
foster children into slavery; it does not follow that if such a case arose, the
officials would be immune from . . . liability.’
United States v. Lanier, 520 U.S. 259, 270-71 (1997).
Since qualified immunity turns only upon the objective reasonableness of the
defendant’s acts, a particular defendant’s subjective state of mind has no bearing
on whether the defendant is entitled to qualified immunity. Baynes, 799 F.3d at
610-11. Hence, the relevant dispositive inquiry is whether it would be clear to a
reasonable officer that the conduct was unlawful in the situation. By way of
example, the Supreme Court has stated that “the right to due process of law is quite
clearly established by the Due Process Clause, and thus there is a sense in which
any action which violates that Clause (no matter how unclear it may be that the
particular action is a violation) violates a clearly established right. Much the same
could be said of any other constitutional or statutory violation.” Anderson v.
Creighton, 483 U.S. 635, 639 (1987). As a result, Defendants’ assertion that “. . .
no court has recognized the violation of a substantively protected right of bodily
integrity or protected property interest resulting from environmental
contamination. . .”, Mot. at 37, is of no consequence here. “Clearly established”
does not mean that the very actions in question have previously been held
unlawful; rather, it merely means that, in light of pre-existing law, the
42
unlawfulness of the official’s conduct was reasonably and objectively apparent.
See Hope, 536 U.S. at 741.
Here, as argued above, Plaintiffs Amended Complaint states with sufficient
factual basis how Snyder, Lyon, and Dillon each individually violated Plaintiffs’
constitutional rights. Moreover, each of these Defendants was aware of, directly
involved with, and/or participated in the misconduct resulting in the Flint Water
Crisis. Defendants cannot in good faith attempt to maintain that a reasonable
person in their positions, did not nor should not have known that Plaintiffs would
be subject to harms created or increased as a result of their actions. Accordingly,
these Defendants had fair warning that their conduct was illegal and are not
entitled to qualified immunity.
III. PLAINTIFFS HAVE PROPERLY PLED A VIOLATION OF ELCRA

REQUIRING THIS COURT TO EXERCISE SUPPLEMENTAL
JURISDICTION
Finally, Defendants improperly assert that this Court should not exercise
supplemental jurisdiction over Plaintiffs’ Michigan Elliot-Larsen Civil Rights Act
(“ELCRA”) claim because it raises “novel and untested issues of state law.” Mot.
at 38. While federal courts can decline to exercise supplemental jurisdiction over
state claims that are new or evolving in state law, see, e.g., Reinhardt v. Dennis,
399 F. Supp. 2d 803, 805 (W.D. Mich. 2005), Plaintiffs’ ELCRA claim is well-
settled under Michigan law. See Haynes v. Neshewat, 729 N.W.2d 488 (Mich.
43
2007); Dockweiler v. Wentzell, 425 N.W.2d 468 (Mich. Ct. App. 1988); and Moon
v. Mich. Reprod. & Ivf Ctr., No. 299623, 2011 Mich. App. LEXIS 1717 (Ct. App.
Sep. 29, 2011). In fact, federal courts have exercised supplemental jurisdiction
over such claims for decades. See Rogers v. Int’l Ass’n of Lions Clubs, 636 F.
Supp. 1476, 1247 (E.D. Mich. 1986).
Defendants Snyder and Dillon also incorrectly assert that Plaintiffs have
failed to properly plead an ELCRA claim because the Plaintiffs are comprised of
individuals “belonging to more than one race.” Mot. at 39-40. For the reasons
outlined in Argument II.C26 this contention also fails. ELCRA makes it illegal for
any person to “aid, abet, incite, compel, or coerce a person to engage in a
violation.” MCLA § 37.2701(b). To prevail, Plaintiffs must prove that these
Defendants aided and abetted other Defendants to intentionally discriminate
against Plaintiffs because of race. “Intentional discrimination means that one of the
motives or reasons for the alleged denial of the full and equal enjoyment of a . . .
public service was [race].” Id. Race “does not have to be the only reason, or even
the main reason, but it does have to be one of the reasons that made a difference in
determining whether to afford plaintiff the full and equal enjoyment of a . . . public
26
Despite “belonging to more than one race[,]” Plaintiffs are water users of the
only predominantly non-white municipality through which the Flint River flows.
Am. Compl. ¶ 159. There was no rational economic justification for this decision,
because continuing with the finished water product from the DWSD for all six
municipalities would have been substantially less costly than the necessary
treatment to safely process the Flint River water. Id. ¶ 176.
44
service.” M Civ JI 108.04.
Defendants Snyder and Dillon “aided” the “provider” of water services to
Plaintiffs – the only predominately African-American community in Genesee
County – by developing the racially motivated Interim Plan, in violation of Mich.
Comp. Laws § 37.2701(b). Am. Compl. ¶¶ 207-9. Plaintiffs have alleged
sufficient facts to demonstrate the plan to switch Flint’s water source to unsafe
Flint River was racially motivated and discriminatory in nature, in violation of
MCL § 37.2302(a). Accordingly, this Court should exercise supplemental
jurisdiction over Plaintiffs’ ELCRA claim against Defendants Snyder and Dillon.
CONCLUSION
For all of these reasons, Plaintiffs’ Amended Complaint alleges a proper
basis for subject-matter jurisdiction before this Court and asserts valid claims
against Defendants under the Constitution. The standards imposed by the Federal
Rules and the Constitution do not allow Defendants to dismiss serious allegations
regarding their role by simply ignoring them. Accordingly, the State Defendants’
Motion should be denied.
Dated: August 8, 2016
/s/ Paul F. Novak

Paul F. Novak P39524
Gregory Stamatopoulos P74199
MILBERG LLP
Chrysler House
719 Griswold Street, Suite 620
45
Detroit, Michigan 48826

Telephone: (313) 309-1760
pnovak@milberg.com
Michael L. Pitt P24429

Cary S. McGhee P42318
Beth M. Rivers P36614
PITT MCGEHEE PALMER &
RIVERS, PC
117 W. Fourth Street, Suite 200
Royal Oak, Michigan 48067
Telephone: (248) 398-9800
mpitt@pittlawpc.com
cmcghee@pittlawpc.com
brivers@pittlawpc.com
William H. Goodman P14173

Julie H. Hurwitz P34720
GOODMAN & HURWITZ, PC
1394 E. Jefferson Ave.
Detroit, Michigan 48207
Telephone: (313) 567-6170
bgoodman@goodmanhurwitz.com
jhurwitz@goodmanhurwitz.com
Trachelle C. Young P63330
TRACHELLE C. YOUNG &
ASSOCIATES PLLC
2501 N. Saginaw St.
Flint, Michigan 48505
Telephone: (810) 239-6302
trachelleyoung@gmail.com
Robin L. Greenwald
John McN. Broaddus
WEITZ & LUXENBERG P.C.
700 Broadway
New York, New York 1003
Telephone: (800) 476-6070
rgreenwald@weitzlux.com
jbroaddus@weitzlux.com
46
Deborah Labelle P31595

LAW OFFICES OF DEBORAH
LABELLE
221 N. Main Street, Suite 300
Ann Arbor, Michigan 48104
Telephone: (734) 996-5620
deblabelle@aol.com
Counsel for Plaintiffs Melisa Mays, et
al.
47
CERTIFICATE OF SERVICE
I certify that on August 8, 2016, I electronically filed the foregoing paper
with the Clerk of the Court using the Court’s ECF system which will send
notification of such filing to attorneys of record.
Date: August 8, 2016
By: /s/ Paul F. Novak

Paul F.Novak

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5:15-cv-14002-JCO-MKM Doc # 147 Filed 08/08/16 Pg 1 of 59 Pg ID 2813

UNITED STATES DISTRICT COURT

MELISSA MAYS, et al., Case no. 15-cv-14002

Plaintiffs, Hon. John Corbett O’Meara

PLAINTIFFS’ RESPONSE TO STATE DEFENDANTS’ MOTION TO

TABLE OF AUTHORITIES .................................................................................. .iii

CONCISE STATEMENT OF ISSUES PRESENTED ............................................ix

CONTROLLING OR MOST APPROPRIATE AUTHORITY ................................ x

FACTUAL BACKGROUND .................................................................................... 3

A. Snyder And Dillon Approved The Use Of The Flint River

B. State Defendants Exacerbated The Harm To The Public By

LEGAL STANDARDS ............................................................................................. 9

A. Defendants Fail To Meet Their Burden Of Establishing

B. Plaintiffs’ Claims For Prospective Injunctive Relief Are Not

1. Plaintiffs Have Adequately Alleged State-Created

2. Plaintiffs Properly Pled Violation Of Their Rights To

B. Plaintiffs Have Adequately Pled An Equal Protection Claim .. 27

3. Plaintiffs Have Alleged A Viable Wealth-Based

D. Snyder, Lyon, And Dillon Are Not Entitled To Qualified

III. PLAINTIFFS HAVE PROPERLY PLED A VIOLATION OF

Charvat v. E. Ohio Reg’l Wastewater Auth.,

Cnty. of Sacramento v. Lewis,

Concerned Pastors for Social Action v. Khouri,

Farm Labor Org. Comm. v. Ohio State Hwy. Patrol,

Global Tech., Inc. v. Yubei (XinXiang) Power Steering Sys. Co.,

Harper v. Virginia Board. of Elections,

Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ.,

Mattoon v. City of Pittsfield,

Middlesex County Sewerage Authority v. National Sea Clammers,

Moon v. Mich. Reprod. & Ivf Ctr.,

Moore v. Detroit School Reform Board.,

Pinkney v. Ohio Environmental Protection Agency,

Rogers v. Int’l Ass’n of Lions Clubs,

San Antonio Indep. Sch. Dist. v. Rodriguez,

Scanlan v. Texas A & M Univ.,

TriHealth, Inc. v. Board. of Commissioners, Hamilton County.,

Verizon Md., Inc. v. Pub. Serv. Comm’n of Maryland,

Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,

28 U.S.C. § 1343(a)(3) and (4) ................................................................................ 10

28 U.S.C. § 2201 ...................................................................................................... 10

42 U.S.C. § 1983 ...............................................................................................passim

Michigan Elliot-Larsen Civil Rights Act ..........................................................passim

Michigan Public Act 436, MCLA §§141.1451 et seq. ............................................ 28

Ron Fonger, Drain commissioner assures Genesee County customers

Fed. R. Civ. P. 12(b) ........................................................................................1, 2, 24

CONCISE STATEMENT OF ISSUES PRESENTED

3. Whether Plaintiffs have adequately pled the requisite elements of a

4. Whether Plaintiffs have adequately pled a violation of their rights to

6. Whether Plaintiffs have adequately pled a claim under 42 U.S.C. §

7. Whether Plaintiffs have alleged violations of clearly established

CONTROLLING OR MOST APPROPRIATE AUTHORITY

Baynes v. Cleland, 799 F.3d 600 (6th Cir. 2015)

Doe v. Claiborne County, 103 F.3d 495 (6th Cir. 1996)

Edelman v. Jordan, 415 U.S. 651 (1974)

Fitzgerald v. Barnstable School Committee, 555 U.S. 246 (2009)

Haynes v. Neshewat, 729 N.W.2d 488 (Mich. 2007)

Milliken v. Bradley, 433 U.S. 267 (1977)

Sample v. Bailey, 409 F.3d 689 (6th Cir. 2005)

Smith v. Robinson, 468 U.S. 992 (1984)

U.S. v. Lanier, 520 U.S. 259 (1997)

devastating public health ramifications were criminally concealed. These matters

Thus, while professing sympathy, Defendants demand that Plaintiffs’ claims

they do so in a manner that is wildly inconsistent with the generally understood

principles of Rule 12(b), peppering their Motion with disputed assertions.